Vol. 14, No. 46
Covering Cases Published in the Advance Sheets through Nov. 12, 2007

Recent Supreme Court Decisions

The New Guideline Crack Cocaine Amendments and Their Retroactivity

Gall v. U.S., No. 07-7949 (U.S. Sup. Ct. Dec. 10, 2007) (Justice Stevens)
Kimbrough v. U.S., No. 06-6330 (U.S. Sup. Ct. Dec. 10, 2007) (Justice Ginsburg)


It is not difficult to understand why so many people are excited about the Supreme Court’s twin decisions on the Sentencing Guidelines last week - Gall v. U.S. and Kimbrough v. U.S. Those two decisions represent a dramatic and major shift in the direction of the law relating to the sentencing criminal defendants in the Federal courts; and, collectively, they portend long-term and profound changes in the substance, the procedures and even the jargon of Federal sentencing.

Still, Gall and Kimbrough are not self-executing panaceas of solutions for all criminal defendants; and some of the commentary about these two rulings have created wildly effusive expectations and predictions that are, at best, unrealistically premature. For example, Graham Boyd, the director of the ACLU's drug law reform project, reportedly compared the potential impact of these two decisions to the Supreme Court’s seminal desegregation ruling in Brown v. Board of Education. (See, “The Harm of ‘Get Tough’ Policies,” by Ellis Cose, Newsweek, Dec. 13, 2007.)

Some of those expectations will probably be dashed as many of the judges decide to take the easy path of sticking with the Guidelines’ sentencing ranges. And, lest we forget, just this past summer, the Supreme Court ruled that the Circuit courts, when reviewing sentences imposed by the district courts may apply a presumption of reasonableness to sentences that are within the Guidelines range. (See, Rita v. U.S., 127 S.Ct. 2456 (June 21, 2007)).

In addition, Gall and Kimbrough left many sentencing questions unanswered. (See, for example, "FSG are truly advisory (even in crack cases), but what about. . . .," by Prof. Doug Berman, as posted on Sentencing Law and Policy on December 11, 2007).

Clearly, however, while emphatically confirming that the Guidelines are advisory only, the Supreme Court has essentially called for the restoration of significantly greater control of the sentencing process to the sentencing judges, and has sharply diminished the review powers of the Circuit courts when addressing appeals involving departures and variances from the sentencing ranges specified in the Guidelines.

In the long run, whether the new sentencing procedures enunciated in these decisions will bring about significant changes in the sentencing policies established under the old mandatory Guidelines system will depend in part on the sentencing judges themselves and in part on the disciplined advocacy of the criminal defense bar.

To make the individualized sentencing assessments now required by Gall and Kimbrough, the district courts will have to assume a greater workload to analyze all of the relevant sentencing factors and ultimately to determine whether a particular sentence is “not greater than necessary” to comply with the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).

The defense lawyers, in turn, will have to submit more detailed information to the sentencing court to enable it to determine whether particular factors warrant a departure from the sentencing range suggested by the Guidelines; and the Government, long used to dictating the ultimate sentences, will fight tooth and nail to preserve that power.

To a lesser degree, changes in sentencing policies will also depend on the leanings of the particular sentencing judge and on the track record of the Circuit in which the defendant is being sentenced. (See, for example, “‘Gall’ and ‘Kimbrough’ from Three Perspectives [The Lawyer’s Perspective; The Defendant’s Perspective; and the Sentencing Reformer’s Perspective],” by Prof. Frank Bowman as posted on the SCOTUSBlog on December 11, 2007).

The most immediate and most noticeable changes will probably be reflected at the appellate level, where de novo reviews of sentencing decisions have been eliminated; and where all sentences - “whether inside, just outside, or significantly outside the Guidelines range” - must now be reviewed under a deferential abuse-of-discretion standard. To the chagrin of many of the Circuit courts, the Supreme Court also emphatically rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.”

Thus, as sentencing guru Prof. Doug Berman stated, Gall and Kimbrough represent a “stinging rebuke of circuit court micromanagement of district court discretion.” (See, "Justices Restore Judges’ Control Over Sentencing," by Linda Greenhouse, The New York Times, December 11, 2007.)

Offended by that rebuke, the Circuit courts will undoubtedly seek to drift away from some of the new guiding principles established in Gall and Kimbrough; and, based upon the seven years it took the Court to fully develop the sentencing theories first enunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000), it will probably be a long time before the Supreme Court again revisits the new rules it has established in these two cases.

That said, both decisions are extremely important; and they should be read and studied as the lower courts seek to implement their mandates.

Finally, as a matter of interest, because the changes in sentencing law wrought by the Supreme Court are so dramatically different from the consensus reached by virtually all of the Circuit courts in their interpretation of U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004), we are going to discontinue our ongoing coverage of the significant post-Booker sentencing cases on our website at www.ussguide.com; and replace it with a new Booker II Resource page, where we will cover, on a Circuit-by-Circuit basis, the development of Federal sentencing law in the aftermath of Booker, but especially in light of the Supreme Court’s recent trio of cases, Rita, Kimbrough and Gall. While that new web page is (and for some time to come will continue to be) a work in progress, our subscribers can now access it at www.ussguide.com/members/Booker II/index.cfm.

Gall v. U.S.

Gall involved a sentence of probation imposed on Brian Michael Gall who, while he was in college, had distributed the illegal drug “ecstasy.” After he graduated, moved away from Iowa and stopped selling drugs, Gall learned that he had been indicted for his prior drug activities. He immediately surrendered himself to the Federal authorities; and he subsequently pled guilty to conspiracy to distribute illegal drugs.

Gall’s Guideline sentencing range for his crime was 30-37 months in prison, but Judge Robert Pratt of the S.D. Iowa concluded that Gall’s post-offense conduct “indicates neither that he will return to criminal behavior nor that [he] is a danger to society.” Accordingly, Judge Pratt imposed a non-prison sentence of 36 months on probation.

In U.S. v. Gall, 446 F.3d 884 (8th Cir. May 12, 2006), the Eighth Circuit vacated Gall’s sentence as unreasonable. Characterizing the difference between a sentence of probation and the bottom of Gall’s advisory Guidelines range of 30 months as “extraordinary” because it amounted to “a 100% downward variance,” the Eighth Circuit held that such a variance must be - and here was not - supported by “extraordinary circumstances.”

By a vote of 7-to-2, the Supreme Court reversed, with Justices Thomas and Alito dissenting. Not only did the majority find that the sentence imposed by Judge Pratt was “reasoned and reasonable,” it emphatically stated:

“We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences - whether inside, just outside, or significantly outside the Guidelines range - under a deferential abuse-of-discretion standard.”

Writing for the majority, Justice Stevens scolded the Eighth Circuit stating: “Although the Court of Appeals correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review of the facts.” He then continued:

“But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of-discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the §3553(a)factors, on the whole, justified the sentence.”

The majority also emphatically rejected “an appellate rule that requires 'extraordinary' circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence. [Such approaches] come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.”

Finally, the majority said that, while sentencing judges must give "serious consideration" to deviations and must explain their reasoning, it emphasized that, in doing so, those judges “may not presume the guidelines are reasonable” and instead "must make an individualized assessment based on the facts presented."

Kimbrough v. U.S.

Derrick Kimbrough, a Black military veteran, pled guilty to distributing 50 or more grams of crack cocaine. His Guideline sentencing range was 168-210 months, plus a mandatory 60 months for a related gun charge. At sentencing, Judge Raymond Jackson of the E.D.Va. found the sentence dictated by the Guideline range and the crack-powder disparity to be “ridiculous,” and imposed a sentence of 15 years, which was 4 1/2 years below the bottom of the range for Kimbrough’s crime.

The Government appealed that sentence reduction; and, in a decision reported at U.S. v. Kimbrough, 174 Fed. Appx. 798 (4th Cir. May 9, 2006), the Fourth Circuit vacated the reduced sentence, holding that a sentence outside the guidelines was "per se unreasonable" because it was “based on a disagreement with the sentencing disparity for crack and powder cocaine offenses,” which can give crack defendants sentences significantly longer than those imposed on cocaine powder offenders.

Writing for the majority in the same 7-to-2 alignment of Justices, Justice Ginsburg wrote that Kimbrough’s sentence was reasonable even if it was 4½ years below the bottom of his Guidelines range. The majority also emphatically rejected the Fourth Circuit’s “per ser unreasonableness” approach, stating:

“We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing. (18 U. S. C. §3553(a)). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.”

In reaching that conclusion, the majority also rejected the Government’s arguments that Congressional policy prohibits sentencing courts from disagreeing with the 100:1 crack/powder cocaine ratio, noting that Congress had recently acquiesced in the 2007 Guidelines which reduced the crack/powder disparity. The Court also rejected the argument that disagreements with the 100:1 ratio would increase sentencing disparities. The Court specifically noted some departures from uniformity were a necessary result of its Booker decision.

While the case did not present the Justices with the ultimate question of the fairness of the existing disparity between crack cocaine and powder cocaine sentences, the Court’s ruling will certainly bring about a sea-change in the law relating to crack cocaine sentencing.

However, we note that the Sentencing Commission itself has repeatedly warned that the crack-cocaine disparity has no scientific support and was leading to a loss of confidence in the sentencing system in the United States, since 85 percent of defendants convicted of crack offenses are black. In addition, there are a number of bills pending in Congress which would overhaul the current crack-cocaine disparity; and the Sentencing Commission recently amended the Guidelines (see below) to reduce the sentencing ranges for crack cocaine offenders by two levels, effective as of November 1, 2007.

As noted below, the Sentencing Commission also voted last week to make those new amendments retroactive to persons sentenced before November 1, 2007. All of these events signal a sea-change in the law relating to sentencing for crack-cocaine offenses.

Watson v. U.S., No. 06-571 (U.S. Sup. Ct. Dec. 19, 2007) (Justice Souter)

In Smith v. United States, 508 U. S. 223 (1993), the Supreme Court held, by a vote of 6-to-3, that “a criminal who trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking offense within the meaning of §924(c)(1)” and thus was eligible for the five-year mandatory minimum sentence specified in that statute. Three Justices (Scalia, Stevens and Souter) dissented, arguing that bartering did not fall within the ordinary meaning of the term “use.”

The Smith majority reasoned that when the petitioner attempted to trade his firearm for drugs, “he ‘used’ or ‘employed’ it as an item of barter to obtain cocaine; he ‘derived service’ from it because it was going to bring him the very drugs he sought’” (Smith, id., at 229); and thus it rejected the petitioner’s contention that § 924(c)(1) required the Government to prove that he had used his firearm “as a weapon.”

The petitioner in the instant case was Michael Watson, a fifty-five-year-old legally blind man with two prior state felony convictions. In 2004, Watson, seeking to protect himself and his property, discussed his desire to purchase a gun with a government informant who was assisting law enforcement officers in investigating Watson’s potential drug trafficking activities. The informant told Watson that he could assist him in acquiring a gun, but that he did not know a price; instead, he suggested that Watson exchange drugs for the firearm.

The informant brought Watson to an undercover agent to execute the exchange. The government agent gave Watson an unloaded pistol, in return for which Watson provided the agent with twenty-four dosage units of the prescription drug OxyContin. After that exchange, Watson was arrested and charged with various drug and gun charges, including a charge of using the pistol during and in relation to a drug trafficking crime, in violation of § 924(c)(1)(A).

Watson subsequently pled guilty to all of the charges, but he reserved the right to challenge the factual basis for his § 924(c)(1)(A) conviction. Watson was then sentenced to 262 months in prison, which included a five-year mandatory minimum sentence for violating § 924(c)(1)(A).

The Supreme Court granted certiorari to resolve a Circuit split and to further clarify the Court’s interpretation of § 924(c)(1)(A). Six Circuits (the First, Third, Fourth, Fifth, Eighth, and Ninth) have held that one who receives a firearm in exchange for drugs “uses” the firearm. Four other Circuits (the Sixth, Seventh, Eleventh, and D.C.) have reached the opposite result.

In a rare unanimous decision in a criminal case, the Supreme Court held that a person who trades drugs for a gun does not "use" a firearm and is therefore not guilty of violating 18 U.S.C. § 924(c). The Court reasoned that, in ordinary English, a person who trades an object to acquire another uses the object that he parts with, but not the one he acquires.

Writing for the Court, Justice Souter explained: “The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola.”

The Court also declined to import meaning from a neighboring statute, 18 U.S.C. § 924(d)(1), which criminalizes the mere receipt of a firearm, pointing out that the two statutes speak to different issues. Finally, the Court rejected the argument that, since it had construed § 924(c) to criminalize bartering guns for drugs, it made sense to symmetrically also punish bartering drugs for guns. The Court, however, said that it must respect the "language" of the statute, and left it to Congress to decide whether the language should be change to effectuate more symmetrical results.

Cutting Through the Guidelines Crack-Cocaine Retroactivity Maze

The debate over the 100 to 1 disparity in sentencing that exists between Federal powder and crack cocaine defendants has been going on for a long time; and it has been especially heated because black defendants are incarcerated for crack-related offenses at substantially higher proportions than whites. According to a 1995 study, 88 percent of those sentenced in Federal courts for crack-cocaine trafficking were African-American, and only 4 percent were white.

Over the years, the U.S. Sentencing Commission (the “Commission”) has issued four separate Reports to Congress (in 1995, 1997, 2002 and 2007) urging Congress to change what the Commission has constantly referred to as “the unwarranted disparity” that exists; but, until recently, those appeals were met with deaf ears.

Finally, on May 1, 2007, the Commission proposed various amendments to the U.S. Sentencing Guidelines to reduce the sentencing ranges for crack cocaine offenses by two levels; and those amendments went into effect on Nov. 1, 2007. They are codified in Guideline Amendment 706 (as amended by certain technical changes contained in Amendment 711). For an analysis of how those new amendments work, see “Applying the Crack Amendments 101,” prepared by the Sentencing Resource Counsel of the Federal Public Defenders Office.

By law, those new amendments only apply to defendants sentenced after the Nov. 1 effective date; and a judge's power to reduce a sentence based on a subsequently amended guideline is limited by the terms of 18 U.S.C. § 3582(c)(2), which states, inter alia, that the judge can act only "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The applicable policy statement on retroactive application of guideline amendments is U.S.S.G. § 1B1.10.

After holding hearings on the issue, on Dec. 11, 2007, the Commission voted unanimously to give retroactive effect to the new crack cocaine amendments by adding Guideline Amendment 706 to the list of provisions specified in U.S.S.G. § 1B1.10 that are entitled to retroactive treatment. However, in order to give the courts and the probation offices time to process the expected rush of cases that are expected to be filed, the Commission also put off the effective date of the new crack retroactivity rules to March 3, 2008. A copy of the full text of U.S.S.G. § 1B1.10 is available online at http://www.ussc.gov/2007guid/030308rf.pdf.

Section 1B1.10 is a tricky provision, filled with potential traps; and there are a lot of unresolved questions relating to the application of some of the new rules and procedures it creates. For example, subsection (a)(3) states specifically that there is to be no "full resentencing"; subsection (b)(1) requires courts to only substitute the amended guideline sections and leave all other guideline sections unaffected; and subsection (b)(2) goes on to limit any reduction to the 2 levels authorized, or a percentage equivalent.

There is even a provision under subsection (b)(2) (which is entitled “Limitations and Prohibition on Extent of Reduction”) which states: “[I]f the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.” Whether that provision is even valid under the scope of the Supreme Court’s rulings in Gall v. U.S. and Kimbrough v. U.S. is questionable, especially since mandatorily applied guidelines are no longer constitutional.

When the Commission announced that it was making the new crack amendments retroactive, it made clear that not every prisoner convicted of a crack cocaine offense would be eligible for relief. In its Press Release, the Commission stated:

“Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.”

In fact, the Commission has estimated that 19,500 offenders sentenced between Oct. 1, 1991 and June 30, 2007 would be eligible to seek a reduced sentence if the Commission made the 2007 crack cocaine amendment retroactive. See, "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive.” And, although hard numbers are elusive because any possible sentence reductions would be affected by many different variables, the same Analysis estimated that the average sentence reduction for those offenders who appear to be eligible to seek a reduced sentence would be approximately 27 months.

See also "Given the Latitude to Show Leniency, Judges May Not," a News Analysis by Adam Liptak, The New York Times, December 11, 2007; and "Drug ruling not likely to free many," by James Oliphant, Chicago Tribune, Dec. 17, 2007.

So what should potentially eligible defendants [and their counsel] do now?

The first thing is to wait a bit. The provisions of § 1B1.10 don’t even become effective until March 8, 2008; so there is time to think through the substantive and procedural issues before filing any appeals. In that vein, Families Against Mandatory Minimums Foundation (“FAMM”) has prepared a brief summary of some of the critical issues and questions regarding the retroactivity of the Guidelines’ new crack cocaine provisions.

The second thing to do is to remember that § 1B1.10 is a “policy statement” of the Guidelines, which the Supreme Court has now emphatically confirmed are advisory only. A lot of very sophisticated lawyers are addressing some of the significant issues raised by these new Guideline provisions; and over the course of the next few weeks we expect that a lot of those attorneys will be assessing questions such as whether the Commission can limit all departures under the new crack Guidelines to two levels or direct the district courts not to grant additional sentence reductions if a defendant already received a below-the-Guidelines sentence.

One example of these efforts was a posting by Louis C. Allen, the Federal Public Defender from the M.D.N.C. who noted that his office is in the process of preparing “a form letter and a form motion” to be sent to all of his office’s former crack cocaine clients who have been potentially identified as eligible for relief under the new retroactivity rules; and he has promised to post those documents on his office’s website at http://www.fpdmdnc.org/.

We will, of course, continue to monitor significant new developments in this area; and we will post them both on our Website at www.ussguide.com and in future issues of P&J.

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