Introduction
Analysis of the Crack Cocaine Amendments
Retroactive Application of the Crack Cocaine Amendments
Combating Disparity in Crack/Powder Cocaine Sentencing
Helpful Links
Analysis of the Crack Cocaine Amendments
Retroactive Application of the Crack Cocaine Amendments
Combating Disparity in Crack/Powder Cocaine Sentencing
Helpful Links
As noted by the Commission, these amendments are only a partial remedy to the problems associated with the disparate treatment of offenses involving crack versus powder cocaine. Fortunately, the Obama Administration and the Department of Justice have recently publicly declared their support for the elimination of the 100:1 disparity in crack/powder cocaine sentencing. In addition, legislation targeted at eliminating the disparity is currently pending in Congress.
The resources on this page help explain the application of the crack cocaine guidelines and address issues that may arise in their retroactive application. They also provide information that can be used to argue for a downward variance in crack cocaine cases, including DOJ policy and legislative developments on sentencing equalization.
- Mathematical Anomalies Resulting from Drug Equivalency and Quantity Tables
When the USSC amended the crack cocaine guideline to reduce the base offense levels in November 2007, two separate types of mathematical anomalies resulted: (1) within range-anomalies and differing ratios between crack and powder cocaine in the drug quantity table; and (2) false equivalencies in poly-drug cases resulting from a new crack-to-marijuana equivalency table, resulting in base offense levels no different than pre-amendment levels. The first of these anomalies remains. With Amendment 715, effective May 1, 2008, the Commission remedied the second of these anomalies.-
Present Anomalies Resulting from Drug Quantity Table: Currently, the lowest ratios incorporated into the amended Drug Quantity Table of §2D1.1 only operate at base offense level 26. This results in within range-anomalies and wildly disparate ratios between crack and powder cocaine. See Kimbrough v. United States, 128 S.Ct. 558, 573 (2007)(“[a]s a result of the 2007 amendment,.
. .the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1"). When the Commission promulgates a guideline that is based on “unsound judgment,” such as the arbitrary crack/powder ratios animating the drug quantity table, courts may exercise discretion to reject that provision. See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); Spears v. United States, _ S.Ct._, 2009 WL 129044 (Jan. 21, 2008) (per curiam) (reaffirming holding in Kimbrough that sentencing judges are entitled to reject and vary from crack cocaine
guidelines based on policy disagreements, i.e., that 100:1 crack/powder ratio creates unwarranted disparity); see also U.S. v. Taylor, 586 F. Supp. 2d 1065, 1069. (E.D.Wis. Oct. 29, 2008) (finding that continued flaws and disparity in crack to powder ratio supports non-guideline sentence where had defendant possessed only powder cocaine, his base offense level would have been 22 rather than 30, and his range 46-57 months rather than 108-135).
For a more thorough discussion of present anomalies and suggestions on how to argue against unwarranted disparity still existing between the guidelines treatment of crack and powder cocaine offenses see Good Math to Fight the Bad Math: Avoiding Unwarranted Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels. - Remedy to False Equivalencies in Poly-Drug Cases: Through amendment 715, the Commission modified the Drug Equivalency Tables in Application Note 10(E) of §2D1.1, to provide that 1 gram of cocaine base equals 20 kilograms of marijuana. It also amended Application Note 10(D) to provide for a two level reduction to the combined offense level for a case involving crack and one or more other drugs, subject to some exclusions. A corresponding amendment to §1B1.10 renders the change to §2D1.1 retroactive. Attorneys who are challenging §2D1.1 on its face may wish to study the history of the prior mathematical problems with the equivalency table.
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Present Anomalies Resulting from Drug Quantity Table: Currently, the lowest ratios incorporated into the amended Drug Quantity Table of §2D1.1 only operate at base offense level 26. This results in within range-anomalies and wildly disparate ratios between crack and powder cocaine. See Kimbrough v. United States, 128 S.Ct. 558, 573 (2007)(“[a]s a result of the 2007 amendment,.
. .the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1"). When the Commission promulgates a guideline that is based on “unsound judgment,” such as the arbitrary crack/powder ratios animating the drug quantity table, courts may exercise discretion to reject that provision. See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); Spears v. United States, _ S.Ct._, 2009 WL 129044 (Jan. 21, 2008) (per curiam) (reaffirming holding in Kimbrough that sentencing judges are entitled to reject and vary from crack cocaine
guidelines based on policy disagreements, i.e., that 100:1 crack/powder ratio creates unwarranted disparity); see also U.S. v. Taylor, 586 F. Supp. 2d 1065, 1069. (E.D.Wis. Oct. 29, 2008) (finding that continued flaws and disparity in crack to powder ratio supports non-guideline sentence where had defendant possessed only powder cocaine, his base offense level would have been 22 rather than 30, and his range 46-57 months rather than 108-135).
- Guidance to CJA Panel Attorneys
- Sample Motions, Briefs, Petitions and Orders
- Chart Comparing Amended Version of USSG §1B1.10 with Previous Version
by National Federal Defender Sentencing Resource Counsel
This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief. - Supreme Court to Address Booker’s Application to Resentencings Under 18 U.S.C. § 3582
In a case that could impact numerous crack resentencings, the Supreme Court granted certiorari in Dillon v. United States (09-6338) on December 7, 2009. The Court will decide whether Booker applies when a court modifies a sentence under 18 U.S.C. § 3582. In Dillon, the defendant moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction. Panel attorneys who have a client who sought a sentencing reduction based on the amendments to the crack guideline and were denied relief entirely, or whose sentence was not reduced below the amended guideline range, should appeal the sentence if possible, and seek certiorari, citing Dillon. For merits and amicus briefs in support of petitioner see Brief for Petitioner, Brief of The Federal Public and Community Defenders and The National Association of Federal Defenders and Brief of Washington Legal Foundation. - Commission Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity Sentence Reduction
The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker. However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For comments relevant to this issue made at the St. Louis Crack Summit, view the Transcript of Portions of the Crack Amendment Retroactivity Summit. - Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February 18, 2008)
by Federal Public & Community Defenders
This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a more recent update on several issues raised in this article, see Crack Retroactivity Caselaw (May 11, 2009).
For prior articles raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment , Selected Retroactivity Caselaw, Retroactive Crack Amendment: Practice Tips and Other Lessons Learned in Charlotte and Crack Summit II: Practice Tips and Lessons Learned in St. Louis. - Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008)
by the Training Branch of the Office of Defender Services
This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions. For a prior memorandum addressing this issue, see Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and Is Constitutionally Required (by National Federal Defender Sentencing Resource Counsel) and Effective, Efficient, and Fair Implementation of the Retroactive Amendment. - BOP Communications Affecting Inmates Eligible for Sentence Reductions Under the Amended Crack Cocaine Guidelines
- Letter from Defenders to the United States Sentencing Commission (November 21, 2007)
This letter outlines the Defender community’s opposition to the Commission's decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10.
- Supplemental Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are "dangerous."
- Legislative Developments
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Senate Bill to Eliminate Crack/Powder Cocaine Disparity Introduced: On October 15, 2009, Senator Dick Durbin along with several Democrat cosponsors introduced legislation to eliminate the disparity between crack and powder cocaine for sentences.The Fair Sentencing Act of 2009 would equalize the amount of crack and powder cocaine required to trigger mandatory minimums (500 grams will require five years and 5 kilograms will require 10 years, no matter what form of cocaine is involved); eliminate the five-year mandatory minimum for simple possession of crack cocaine; significantly increase penalties for drug offenses involving vulnerable victims, violence and other aggravating factors; and; require a report on the effectiveness of federally funded drug courts. Durbin’s office has distributed this fact sheet regarding the legislation. For more information on the bill, see the FAMM website.
- Crack/Powder Cocaine Equalization Bill Passes House Judiciary: On July 29 the House Judiciary Committee approved legislation to eliminate the disparity between crack and powder cocaine sentences, treating 50 grams of crack the same as 50 grams of other forms of cocaine. HR. 3245, the Fairness in Cocaine Sentencing Act of 2009, would eliminate the current 100-1 sentencing disparity between crack and powder cocaine sentences. In its current form, the bill does not appear to apply retroactively. Practitioners may wish to consult with their defender office or panel representative regarding the advisability of applying for continuances of any pending sentencings in crack cocaine cases (see Model Motion for a Continuance). For more information on the bill, including the full text as well as status updates, see the FAMM website.
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Testimony of Assistant United States Attorney General Lanny Breuer Supporting Elimination of Crack/Powder Disparity (April 30, 2009)
In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that “Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This is the first time that the Department of Justice has supported equalization of cocaine sentencing. Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses:
[W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.
Mr. Breuer was one of several witnesses who testified at the April 30th hearing on "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity." On May 21, 2009, Mr. Breuer reiterated the Administration's position before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security's Hearing on: Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity? -
Joint Statement of Thomas W. Hillier, II and Jon Sands at the April 29, 2009 U.S. Senate Hearing on Restoring Fairness to Sentencing: Addressing the Crack-Powder Disparity
Thomas W. Hillier, II, Federal Public Defender, Western District of Washington, Chair, Federal Defender Legislative Expert Panel; Jon Sands, Federal Public Defender, District of Arizona, Federal Defender Sentencing Guidelines Committee, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
This testimony urges the following reforms: (1) penalties for offenses involving the same quantity of crack and powder cocaine should be equalized at a level no greater than the current level for powder cocaine; (2) differences among offenses and offenders should be taken into account by the sentencing judge in the individual case, and aggravating circumstances should not be built into every sentence for crack cocaine; (3) the mandatory minimum for simple possession of crack cocaine should be repealed; (4) mandatory minimums should be repealed; (5) recidivist sentencing enhancements should be narrowly tailored to minimize their disparate impact on people of color; (6) enhanced penalties for drug distribution near protected zones should be repealed.
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Statement of A.J. Kramer at the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
This testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. In A.J. Kramer's Supplemental Statement he also addresses DOJ’s arguments against retroactive application of the crack cocaine amendments and refutes DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders.
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Statement of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives Hearing - Cracked Justice: Addressing the Unfairness in Cocaine Sentencing
Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security
This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee.
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Senate Bill to Eliminate Crack/Powder Cocaine Disparity Introduced: On October 15, 2009, Senator Dick Durbin along with several Democrat cosponsors introduced legislation to eliminate the disparity between crack and powder cocaine for sentences.The Fair Sentencing Act of 2009 would equalize the amount of crack and powder cocaine required to trigger mandatory minimums (500 grams will require five years and 5 kilograms will require 10 years, no matter what form of cocaine is involved); eliminate the five-year mandatory minimum for simple possession of crack cocaine; significantly increase penalties for drug offenses involving vulnerable victims, violence and other aggravating factors; and; require a report on the effectiveness of federally funded drug courts. Durbin’s office has distributed this fact sheet regarding the legislation. For more information on the bill, see the FAMM website.
- DOJ and USSC Support of Equalization
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DOJ Memo of May 1, 2009 on Department Policies and Procedures Concerning Sentencing for Crack Cocaine Offenses
This memo from the Deputy Attorney General to all United States Attorneys directs prosecutors to "inform courts that the Administration believes Congress and the Commission should eliminate the crack/powder disparity, but that Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a). Prosecutors should be governed by the facts and circumstances of individual cases and existing law. They may indicate that they will not object to a reasonable variance in an average case." - 2007 USSC Report to Congress on Cocaine and Federal Sentencing Policy
In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.
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DOJ Memo of May 1, 2009 on Department Policies and Procedures Concerning Sentencing for Crack Cocaine Offenses
- Families Against Mandatory Minimums
Check FAMM's web site for updated information on legislative developments regarding punishment for cocaine related offenses. - FJC Crack Cocaine Retroactivity Guideline Information Exchange
The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.