Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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08-CASSIDY.DOC 1/29/2009 3:29:23 PM 124 AKRON LAW REVIEW [42:105 unreasonable” if based on a disagreement with the 100-to-1 sentencing scheme. 163 The Supreme Court granted certiorari to address whether its holding in Booker rendered “advisory” the crack/powder disparity adopted by the Guidelines. 164 Kimbrough was decided by a vote of 7-2, and Justice Ginsburg began the opinion by examining the disparate treatment of crack and powder cocaine under federal sentencing laws, and the modifications made to § 3553 after Booker. 165 The Court stated, “while [§ 3553(a)] still requires a court to give respectful consideration to the Guidelines, Booker ‘permits the court to tailor the sentence in light of other statutory concerns as well.’” 166 The Government argued that the 100-to-1 ratio was an exception to the “general freedom that sentencing courts have to apply the [§ 3553(a)] factors . . . because the ratio is a ‘specific policy determinatio[n] that Congress has directed sentencing courts to observe.’” 167 The Government supported its position by arguing that the presence of the 100-to-1 ratio in the 1986 Act prohibits the Commission and the sentencing courts from applying anything other than the ratio. 168 The Court disagreed, and cited the language in the Act, which, in the Court’s opinion, provided only minimum and maximum sentences. 169 Distribution of 5 grams or more of crack required a minimum sentence of 5 years and a maximum sentence of 40 years. 170 Possession of 50 grams or more called for a minimum sentence of 10 years and a maximum of life in prison. 171 The statute, the Court stated, “says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence.” 172 The Government also argued that Congress’ rejection of the Commission’s 1-to-1 ratio proposed in 1995 as an amendment to the Guidelines was proof Congress intended the Commission and sentencing 163. Id. 164. Kimbrough, 128 S. Ct. at 565-66. 165. Id. at 566-70 (discussing how each drug is made, a brief history of the mandatory minimum scheme, the Sentencing Commission’s reports to Congress, and its 2007 crack amendment). 166. Id. at 570. 167. Id. 168. Id. 169. Id. at 571. 170. Kimbrough v. United States, 128 S. Ct. 558, 571 (2007). 171. Id. 172. Id.
08-CASSIDY.DOC 1/29/2009 3:29:23 PM 2009] EXAMINING CRACK COCAINE SENTENCING IN A POST-KIMBROUGH WORLD 125 courts to apply the 100-to-1 ratio. 173 The Court recognized Congress’ dismissal of the Commission’s 1995 proposal, but also noted that it was Congress who requested the Commission recommend a “revision of the drug quantity ratio of crack cocaine to powder cocaine.” 174 Moreover, the Court found nothing in Congress’ reaction to the Commission’s 1995 report that crack sentences—outside the minimum and maximum sentences—must exceed powder sentences by a 100-to-1 ratio. 175 The Kimbrough Court also referenced the Commission’s 2007 crack amendment 176 that created a crack/powder ratio varying between 25-to-1 and 80-to-1, depending upon the offense level. 177 Congress, the Court stated, took no action regarding the 2007 “proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U.S.C. § 994(p).” 178 Relying on the Commission’s findings that the crack/powder disparity produces disproportionately harsh sentences, the Court held “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 173. Id. at 572. 174. Id. 175. Id. 176. See UNITED STATES SENTENCING COMMISSION, ANALYSIS OF THE IMPACT OF THE CRACK COCAINE AMENDMENT IF MADE RETROACTIVE (2007), http://www.ussc.gov/general/Impact_ Analysis_20071003_3b.pdf (hereinafter USSC 2007 ANALYSIS). On May 1, 2007, the Commission notified Congress it was lowering the Guidelines sentencing ranges for certain crack offenses and offenders. Absent congressional action the Commission announced the amendment would become effective November 1, 2007. Id. at 1. The six-month review period yielded no congressional action and the Commission’s amendment to the Guidelines for crack cocaine offenses went into effect. On December 11, 2007, the Commission voted unanimously to apply the amendment retroactively, with an effective date of March 3, 2008. UNITED STATES SENTENCING COMMISSION, “READER- FRIENDLY” VERSION OF AMENDMENTS ON RETROACTIVITY EFFECTIVE MARCH 3, 2008 (2008), http://www.ussc.gov/2007guid/030308rf.pdf. The Commission’s amendment, however, does not affect the mandatory minimums set by the Anti-Drug Abuse Act of 1986. Other offenders are also excluded. Crack cocaine offenders with a base offense level less than 12 or equal to 43 and those who possessed a crack cocaine quantity greater than 4,500 grams are ineligible to receive a reduced sentence. USSC 2007 ANALYSIS at 5-6. In addition, offenders sentenced under the career offender guideline, § 4B1.1, or the armed career offender guideline, § 4B1.4, are not eligible to receive reduced sentences. Id. at 6. As a result of the Commission’s amendment, a memorandum prepared in 2007 by the Commission’s Office of Research and Data (ORD) estimated 19,500 crack cocaine offenders sentenced between October 1, 1991 and June 30, 2007 would be eligible to file a motion for a reduced sentence. Id. at 4-5. According to ORD, the average estimated sentence reduction would be 27 months, with 63.5% of offenders receiving a reduction of 2 years or less, 28.6% receiving a reduction of one year or less, and 7.9% eligible for a reduction of 49 months or more. Id. at 23. 177. Kimbrough v. United States, 128 S. Ct. 558, 573 (2007). 178. Id.
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Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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