Congress scaled back penalties for crack cocaine in the 2010 Fair Sentencing Act, but did not indicate how the law was to be applied to defendants who committed their crimes before the Act’s effective date. The circuits have split on this question, and the Supreme Court has now granted certiorari in a pair of Seventh Circuit cases in order to resolve the split: United States v. Fischer, 635 F.3d 336, and United States v. Hill, 417 Fed. App’x 560. I blogged about Fischer at the time it was decided, here. I’m hoping for a reversal of the Seventh Circuit’s approach, which needlessly denies many defendants the benefits of the FSA’s much fairer, but still plenty tough, crack sentencing regime.
Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?
The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.
This was improper, the Seventh Circuit held.
As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses. In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system. Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.
The Seventh Circuit’s position followed that of the Department of Justice. However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity. Additionally, three other circuits have since rejected the Seventh Circuit’s position. In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc. Last week, however, the court announced that the initial ruling would stand.
Readers of this Blog will know that one of my pet peaves is sentencing judges who fail to address defendants’ arguments for lenience. As I discussed in this article, the Seventh Circuit may have the best case law in the country on this issue. You can now add to the court’s good precedent United States v. Johnson (No. 10-2503). Convicted of trafficking in crack cocaine, Johnson argued that he should receive a below-guidelines sentence based on the unfairness of then-applicable 100:1 crack-powder disparity. Although the judge was not obliged to accept the argument, the Seventh Circuit held that she was nonetheless required to respond in an express way to it.
What seems especially notable about Johnson is that the defendant actually did receive a below-guidelines sentence the first time around. The government argued that this should have precluded relief. Although the Seventh Circuit acknowledged that the “requirement that the district court specifically address the defendant’s principal, potentially meritorious sentencing arguments applies with less force where the judge received voluminous evidence and listened carefully to the defendant’s arguments and in the end imposed a short prison sentence significantly below the applicable guidelines range” (5, internal quotation marks and alterations omitted), the court sensibly declined to adopt a bright-line rule. Just because the defendant caught a break at sentencing does not mean that he lacked a worthy argument for an even bigger break.
The U.S. Sentencing Commission has now posted the unofficial “reader-friendly” version of its new retroactivity amendment. The news is very good for defendants serving long prison terms under the pre-Fair Sentencing Act version of the crack sentencing guidelines, although it is also important to note that the Commission used this amendment as an occasion to make a general change to the retroactivity guideline that will diminish the value of retroactivity to some defendants with pending or future sentence modification requests. Here are the highlights of the Commission’s work.
First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April. The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession. (To be technically precise, these are Parts A and C of Amendment 750.) These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people. According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.” To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.
Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement. (See my post here.)
I see that the Justice Policy Institute and the Drug Policy Alliance have both recently issued reports voicing skepticism of drug treatment courts. Despite the widespread popularity and phenomenal growth of drug treatment courts, I’ve long had my doubts. (See this article, for instance.) Contrary to the beliefs of many well-intentioned supporters, they do not necessarily lead to reduced incarceration for drug users and likely reinforce the view – regrettable, in my opinion – that drug use is invariably an appropriate matter for regulation through the court system.
I’ve posted a few times recently on the legal and policy issues involved in making changes to the federal crack sentencing laws retroactive (e.g., here and here). Earlier this week, the Supreme Court resolved one such legal issue . . . sort of. In Freeman v. United States (No. 09-10245), the question was whether a defendant who pled guilty to a crack offense pursuant to Rule 11(c)(1)(C) could obtain a sentence modification in light of the 2007 amendment to the crack sentencing guidelines.
Under 18 U.S.C. § 3582, a defendant may obtain a sentence modification if his sentence was “based on” a guidelines range that was later reduced. So, is the sentence imposed in a (c)(1)(C) case “based on” the guidelines?
It has not been a good week for criminal defendants on the statutory interpretation front. Yesterday, in DePierre v. United States (No. 09-1553), the Supreme Court rejected a narrowing interpretation of a mandatory minimum statute for the third time this week. (See my posts here and here for the earlier cases.) DePierre, however, was considerably less contentious (and interesting) than the first two. The Court unanimously agreed that the term “cocaine base” encompasses all cocaine in its chemically basic form, and is thus not limited to crack, for purposes of the five- and ten-year mandatory minimums that apply to trafficking in cocaine base. This seems a relatively straightforward matter of plain-meaning interpretation, although it does contradict the way that the Sentencing Commission defines “cocaine base” for purposes of the guidelines.
I continue to be mystified by the Supreme Court’s jurisprudence on the Armed Career Criminal Act. The Court has been remarkably active in taking ACCA cases in recent years, but I’m hard-pressed to see much coherence in the outcomes. On the one hand, there is the Begay line of cases, which have substantially narrowed the definition of “violent felonies” that can be used as a predicate for the ACCA fifteen-year mandatory minimum. (For background, see my post here.) Yet, there are plenty of other ACCA cases — many involving short, unanimous decisions, as if the underlying legal issues were entirely unproblematic — that adopt unnecessarily expansive interpretations of the ACCA triggering language.
Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.
Here’s the background on McNeill from an earlier post: