Post-Booker Sentencing Guidelines Christopher Bates May 11, 2006 Legal Studies Senior Seminar Prof.

Marcia Miller


When two crack dealers bought about 255 grams of power cocaine from their supplier to turn into crack, they were disappointed when the cocaine yielded only 88 grams of crack, instead of the normal yield of about 200 grams of crack. The supplier agreed to replace the 255 grams of powder cocaine free of charge, while returning to the location, the crack dealers were arrested with the 88 grams of crack on themselves; the supplier was also arrested with possession of 255 grams of powder cocaine. Ultimately, the crack dealers received a sentencing guideline range of 121 to 151 months with a statutory minimum of ten years, whereas the supplier’s guideline range was just 33 to 41 months.1 This perversion of justice is a result of one of the most hotly debated topics in federal sentencing: the sentencing structure for crack and powder cocaine. As illustrated in the above story the penalty structure for crack cocaine is much harsher than that of powder cocaine. A conviction for the sale of 50 grams of crack is a ten-year mandatory sentence. Whereas to reach the same mandatory ten-year sentence, a cocaine dealer would have to be convicted of selling 5000 grams of powder cocaine. There is hope that these unfair sentences will be a thing of the past with the recent decision of United States v. Booker.2 This landmark case drastically changed the United States Sentencing Guidelines by changing them from mandatory to recommended. With the unjust sentences no longer mandatory, judges can, and should, downward depart from the recommendations of the sentencing guidelines in crack and cocaine convictions. The judges should heed the recommendations of the sentencing guideline committee over the past ten years and reduce the ratio in crack and powder cocaine sentencing to 20:1.

William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev. 1233, 1273 (Winter 1996). 2 U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).


This paper will first address the relative weight judges should give to the sentencing guideline recommendation when dealing with these types of cases. That this paper will argue judges have the right to downward depart from the recommended guidelines if the punishment is greater than necessary to meet the goals of sentencing. This paper will finally argue that judges can consider other factors and circumstances of defendants when sentencing. Sentencing in the United States has had many drastic changes within the last twenty years. Before the current Sentencing Guidelines were established, sentencing in the United States was calculated by a system of indeterminate sentencing based on the rehabilitation model.3 Under the rehabilitation model, the courts determined the maximum term of imprisonment for each defendant. The Parole Commission released the prisoners, in most cases, earlier than the maximum term for good behavior or finding the prisoners were rehabilitated.4 This system of indeterminate sentencing created very large disparities in federal sentencing because the courts only limit was the applicable statutory maximum. The Parole Commission’s discretion to release prisoners was only limited only by the requirement that prisoners serve a certain amount of their sentence. Thus, offenders convicted of similar crimes were getting vastly different sentences.5 The Sentencing Reform Act of 1984 (SRA) replaced the indeterminate system. The SRA eliminated the broad judicial discretion of federal courts and dismantled the release discretion of the Parole Commission.6 The SRA was created to limit judicial discretion and create uniformity and individuality in all federal sentencing. The most

Jesseca R. F. Grassley, Federal Cocaine Sentencing Policy Following the 1995 Cocaine Report: Issues of Fairness and Just Punishment, 21 Hamline L. Rev. 347-351 (1998). 4 Grassley, supra n. 3, at 347-351. 5 Grassley, supra n. 3, at 352. 6 Grassley, supra n. 3, at 352.


tangible thing to come from the SRA was the creation of the United States Sentencing Commission (“Sentencing Commission”). Congress empowered the Sentencing Commission to create sentencing policies and practices for the federal judiciary by creating mandatory sentencing guidelines.7 The sentencing guidelines created under the Sentencing Commission tells judges what an appropriate sentence, is by giving a sentencing range from within judges can create a sentence, and giving narrow circumstances in which the judge could depart from the guidelines.8 The goal of the guidelines can be summed up by a statement made by the Senate Judiciary Committee: “The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences.”9 The Sentencing Commission set out a number of steps that courts should take when determining a sentence. First, the court must determine the base offense level of the offender.10 Then the court determines any specific offense characteristics that might enhance the sentence.11 The court must then combine these two scores to determine the offense level.12 The next step is for the court to determine the appropriate criminal history category for each particular defendant.13 The final step in this process is to input the offense level and criminal history into the Sentencing Table14 which will display the appropriate sentencing range.15

7 8

Grassley, supra n. 3, at 352. Grassley, supra n. 3, at 352. 9 Grassley, supra n. 3, at 353. 10 U.S. v. Emeridez, (available at 1994 WL 689067). 11 Id. 12 Id. 13 Grassley, supra n. 3 at 356. 14 See Appendix p. i 15 Grassley, supra n. 3, at 356


The overall purpose of the Sentencing Commission which was incorporated into the Sentencing Guidelines was to provide certainty and fairness in meeting the purpose of sentencing, avoiding sentencing disparities among defendants with similar records who have committed similar crimes.16 The sentences provided by the Sentencing Commission were to (1) reflect the seriousness of the offense, promote respect for the law and provide just punishment for the offense; (2) create deterrence from criminal conduct; (3) protect the public and (4) to provide the convicted with needed educations or vocational training, medical care and other correctional treatment in an effective manner.17 Not all sentences created by the Sentencing Commission followed their purpose of sentencing. One of these exceptions was the pre-booker sentencing guidelines for conviction of crack and powder cocaine, often referred to as the 100:1 ratio. The 100:1 ratio was created in the Anti-Drug Abuse Act of 1986 (“the Act”).18 The Act was created during an American drug crisis, and an increasing awareness and sense of urgency over the growing use of drugs, particularly the widespread and seemingly out-of-control use of crack.19 The Act was pushed through Congress at a swift speed giving little time for debate to consider the penalties it would impose. In other words, “the careful, deliberate procedures of Congress were set aside in order to expedite the passage of the bill”20 The 100:1 ratio the Act created is quantity-based and distinguishes between powder-cocaine offenders and crack offenders. The 100:1 ratio favors giving crack offender’s harsher sentences. For example, it takes 500 grams or more of powder cocaine to trigger a 5-year mandatory minimum penalty, but only takes 5 grams of crack to trigger
16 17

Grassley, supra n. 3, at 347-351. Grassley, supra n. 3, at 347-351. 18 U.S. v. Pho, 433 F.3d 53, 54 (2006). 19 U.S. v. Perry, 389 F.Supp.2d 278, 288 (2005). 20 Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition Politics and Reform, 40 Vill. L. Rev. 383, 408 (1996).


the 5-year minimum. It takes 5,000 grams of powder cocaine to trigger a 10 year mandatory minimum, where 50 grams or more of crack will trigger that same 10 year mandatory minimum.21 The Sentencing Commission used the ratio created by Congress as a guide to set the sentences for all powder and crack quantities within the Sentencing Guidelines.22 After this initial acceptance of the 100:1 ratio, the Sentencing Commission has consistently recommended reducing or eliminating the differential. The Sentencing Commission has issued three different reports in 1995, 1997 and 2002. All of which proposed drastic changes to the Guideline Quantity ratio, ranging from equalizing the sentencing of crack and cocaine convictions to 5:1 and 20:1 ratios.23 In addition,

Senators Hatch and Sessions introduced The Drug Sentencing Reform Act, which would have lowered the ration to 10:1; The Sentencing Reform Act passed the Senate in 2000 but failed to receive House approval.24 Despite the three separate reports and various recommendations from a myriad of individuals and groups, the sentencing structure remained in place.25 On January 12, 2005, the U.S. Supreme court issued the landmark decision United States v. Booker.26In that case the defendant, Booker was convicted in United States District Court for possession with intent to distribute at least 50 grams of crack. Under the Sentencing Guidelines, Bookers sentence was 210 to 262 months with a jury conviction.27 During the sentencing hearing, the trial court judge found additional
21 22

Perry, 389 F. Supp. 2d 278, 289 (2005). U.S. v. Doe, 2006 WL 177396 (D.D.C. January 26, 2006). 23 Id. at 4. 24 Id. 25 Id. 26 Booker, 543 U.S. at 220, 125 S.Ct. at 738. 27 Id.


evidence, and gave Booker a sentence based in part on this new evidence of between 360 months and life.28 Booker received a 30-year sentence based on the judge’s findings instead of the jury’s findings.29 The case was then appealed to the Seventh Circuit, where the court held that the application of the Sentencing Guidelines based on facts that were never given to the jury was in conflict with the holding of Apprendi.30 That “other than the fact of a prior conviction, any fact that increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”31 The Seventh Circuit went on to further hold that Bookers initial sentence violated his Sixth Amendment32 right to trial by jury, and remanded the case back to the trial court, to sentence Booker within the juries sentencing range or hold a separate sentencing hearing before a jury.33 The case was again appealed on a writ of certiorari to the U.S. Supreme Court. The Supreme Court concluded that mandatory sentencing guidelines did violate the Sixth Amendment because of the increase in sentence without a jury verdict.34 The Supreme Court excised the parts of the Sentencing Reform Act of 1984 that made the Sentencing Guidelines mandatory.35 The court removed § 3553(b) (1), which required courts to impose a sentence within the applicable Guideline range.36 This essentially permitted the guidelines merely advisory, requiring that sentencing courts still consider Guideline ranges but permitting sentencing courts to
28 29

Id. Id. 30 Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct 2348 (2000). 31 Booker, 543 U.S. at 223, 125 S.Ct. at 741. 32 See, U.S. Const. amend. VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. 33 Booker, 543 U.S. at 223, 125 S.Ct. at 741. 34 Booker, 543 U.S. at 224, 125 S.Ct. at 742. 35 Id. at 225, 125 S. Ct. at 743. 36 Id. at 226, 125 S. Ct. at 744.


tailor the sentence in light of other statutory concerns. More specifically, the guidelines still call for judges to consider sentencing ranges established for applicable categories of offenses committed by the applicable categories of defendants; sentencing courts must still keep in mine Sentencing Commission policy statements, and sentencing courts need to avoid sentencing disparities. 37 Booker has raised many questions in the realm of federal sentencing as to what weight sentencing courts must give to guidelines, what sentence length greater than necessary to achieve the foals of sentencing, in what ways post-booker are courts considering the circumstances of the offense and defendant, and how has crack and cocaine sentencing changed after Booker.38 Since the Booker decision, the question of what weight to give the Sentencing Guidelines since the decision in Booker has widely addressed. For Example in Wilson39 the sentencing court gave heavy weight to the guidelines and stated it would only give non-guideline sentences “in unusual cases for clearly identified and persuasive reasons”.40 Like wise in Peach41 the judge gave the guidelines substantial weight because they “presumptively provide a reasonable sentence even though they are now advisory in nature.”42 Other sentencing courts have found that the Guidelines are just one of a number of sentencing factors to consider, and therefore give equal weight to each factor of the Sentencing Reform Act.43 In regards to crack and cocaine convictions, the courts are still

37 38

Id. at 226, 124 S. Ct. at 744. Ryan S. King, Sentencing with Discretion: Crack Cocaine Sentencing after Booker, (last updated January 2006). 39 U.S. v. Wilson, 350 F.Supp.2d 910 (D. Utah 2005). 40 Id. at 912. 41 U.S. v. Peach, 356 F.Supp.2d 1018 (D.N.D 2005). 42 Peach, 356 F.Supp.2d at 1020. 43 U.S. v. Ranum, 353 F.Supp.2d 984 (E.D. Wis. 2005); United States v. Myers, 353 F.Supp.2d 1026 (S.D. Iowa 2005).


divided on what weight to give the Sentencing Guidelines. In Tabor44 the sentencing court determined that the sentencing guidelines should be given heavy weight because to do otherwise would have the judge “play legislator”45 in the crack and cocaine debate.46 In Clay the sentencing court also gave heavy weight to the Guideline over other factors but held that departure from the Guidelines is justified when the sentencing range given is clearly outweighs by some other factor set forth in the Sentencing Reform Act such as defendant’s personal characteristics or unjustified disparity in the 100:1 ration.47 Most confusion of what weight amounts to give other factors in the now advisory guidelines can be attributed to the Supreme Courts lack of defining a weight in Booker, that said many federal trial courts have struggled with this issue, and they are overall giving the Guidelines more weight than other factors, which may be moving the Guidelines into a more than advisory role.48 Another issue facing courts is what length of sentence is “sufficient, but not greater than necessary”49 to meet the goals of sentencing. Pre-Booker all lengths of sentences provided by the sentencing guidelines were deemed reasonable.50 However post-Booker sentencing courts must now determine if lengths of punishment are not too severe based on evidence proven in front of a jury. 51 The court in Fisher52 found that the guideline sentence in the instant case was greater than necessary, the sentencing court downward departed because the guideline sentence clearly overstated the offense,

44 45

U.S. v. Tabor, 365 F.Supp.2d 1052 (D. Neb. 2005). Id. at 1054. 46 King, supra n. 38. 47 Id. 48 Id. 49 King, supra n. 38. 50 King, supra n. 38. 51 Id. 52 U.S. v. Fisher, F. Supp. 2d , 2005 WL 2542916 (S.D.N.Y. Oct. 11, 2005).


especially when compared to powder cocaine convictions.53 Like wise in Carvajal the court downward departed from the guideline range for counterfeiting and conspiracy to distribute crack, because the judge deem the punishment more severe than necessary.54 Again in Perry, the court recognized that it had to consider the consequences of the 100:1 ratio in crack and cocaine convictions, when determining if the sentence is greater than necessary.55 The court determined that the “100:1 ratio results in punishments that are three to six times longer for cocaine base than for an equivalent quantity of powder cocaine.”56 The court in Perry ultimately chose to give the defendant the mandatory minimum, because to follow the Guidelines range would have been greater than necessary.57 The federal courts again have not come to a consensus on what length of sentence is or is not greater than necessary to achieve the goals of sentencing. Left in the dark by the Supreme Court many sentencing courts use a verity of determinatives to justify their decisions of length.58 The sentencing courts are now allowed to consider the circumstance of the offense and of the defendant in their sentencing criteria.59 Before Booker many elements that may have mitigated sentences for Defendants weren’t available for the judge to consider because of the inflexibly of the sentencing guidelines. 60 Post-Booker many of these mitigating circumstances can be included in the sentencing. In Avilez the judge took into consideration the low IQ of the defendant in his downward departure

53 54

Id. King, supra n. 38. 55 King, supra n. 38. 56 U.S. v. Perry, 389 F.Supp.2d 278 (D.R.I 2005). 57 Id. 58 King, supra n. 38. 59 Id. 60 Id.


from the Sentencing Guidelines.61 The age of offender has also been reason to downward depart in post-Booker cases.62 In Nellum, the sentencing court downward departed by 108 months based in part on the defendant’s old age, citing that the age of the offender is relevant to the issue of “protecting the public from further crimes of the defendant” 63 The judge in Nellum also took into consideration the health of the defendant and his prior involvement in the Army.64 Public policy concerns and racial disparities are other mitigating factors judges have used to downward depart post-Booker. The three reports from the Sentencing Commission to congress asking that the 100:1 ratio be lowered have been cited numerous times as reasons for downward departure in crack and powder cocaine convictions.65 The racial disparity associated with convictions in crack and powder cocaine cases have also be used reasons to downward depart.66 African-Americans are more likely to be in possession of crack since it is inexpensive and usually sold in small quantities. About two-thirds of crack uses are white or Hispanic, but in 1994 at the height of the crack epidemic, the majority of people convicted of possession were African Americans. In 1994 Defendants convicted crack possession were 84.5% black, 10.3% white and 5.2% Hispanic. Defendants convicted of possession of cocaine powder were 58% white 27.4% black and 39.3% Hispanic.67Being able to consider factors outside of what the Sentencing


U.S. v. Avilez, 2006 WL 1068981 (4th Cir. April 24, 2006) (Holding that mentally retarded defendants mental condition could be a circumstance used in evaluating the level of offense). 62 Id. 63 U.S. v. Nellum, 2005 WL 300073 (N. D. Ind., Feb 03, 2005). 64 Id. 65 King, supra n. 38.U.S. v. Smith, 359 F.Supp.2d 771 (E.D. Wisc. 2005). 66 Grassley, supra n. 3, at 347-351. 67 United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy, 184-187 (1995).


Guidelines look at, adds a great deal of flexibility to sentencing and adherence to the goals of sentencing, by creating a fair sentence.68 The Sentencing Guidelines should continue to be a part of what sentencing courts use in there determination of sentencing length, but since the Guidelines are no longer mandatory sentencing courts should weight other factors on an equal footing with the Guidelines. The goals of the Guidelines to (1) reflect the seriousness of the offense, promote respect for the law and provide just punishment for the offense; (2) create deterrence from criminal conduct; (3) protect the public and (4) to provide the convicted with needed educations or vocational training, medical care and other correctional treatment in an effective manner.69 These well thought-of goals have not always been reached, most notably in the crack and cocaine 100:1 ratio. Post-Booker sentencing courts should use three factors when determining a sentence the (1) weight of the guidelines, (2) creating sentence lengths that are not greater than necessary, (4) other circumstances of the offense and the defendant and (4) public policy statements about sentencing. With these factors all considered equally in sentencing the goals of sentencing will be met. The weight given to the former mandatory guidelines must be the same as every other factor considered. Cases that have given the guidelines heavy weight post-Booker are not heeding the Supreme Courts decision to make the guidelines merely advisory. It doesn’t make sense to weigh the Guidelines over other factors because the Supreme Court did not assign a specific weight in Booker.70 The Supreme Court may not have set forth how sentencing factors should be determined with respect to one and another.71 The

68 69

King, supra n. 38. Grassley, supra n. 3, at 347-351. 70 U.S. v. Wilson, 350 F.Supp.2d 910,925 (D. Utah 2005). 71 King, supra n. 38.


Supreme Court has said that the Guidelines are advisory.72 The now advisory status of the Sentencing Guidelines gives them equal footing to other factors. The Booker decision was not an “invitation to do business as usual.”73 Courts must change the weight they give to guidelines if we are to meet the goals of sentencings, Sentence length must now be considered by courts to assure the length isn’t punishment that is “not greater than necessary”74 to meet the goals of sentencing. Where as the sentences imposed before Booker were in themselves deemed not greater than necessary, this is not the case after Booker. In this post-Booker era judges need to weigh the length of the sentence with other factors such as circumstances of the offender so that an appropriate sentence can be met. Judge Hellerstein in Carvajal summed this ideal up best “A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more sever that necessary to satisfy the goals of punishment.”75 When you look at other factors involved in cases there are many times mitigating circumstances. Now judges have the ability to look at these other mitigating factors and consider them, judges should downward depart when warranted to avoid sentence lengths that don’t adhere to the sentencing guidelines. Judges now have the ability to use more information in their sentencing; they can and should look to the circumstances of the offense and of the defendant to reach a more appropriate sentence. In the past Sentencing Guideline sentences did punish more severely than necessary because the Sentencing Guidelines only look at offender and crime history.76 This does not have to continue to be the case; judges can now for
72 73

Booker, 543 U.S. at 226, 125 S.Ct. at 744. U.S. v. Ranum, 353 F.Supp.2d 984, 986 (E.D. Wis. 2005). 74 §3553 (a)(2)(A-D). 75 U.S. v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb 22, 2005). 76 Grassley, supra n. 3, at 347-351.


example take into consideration age, former service to America, connections to community, family and jobs along with any other factors that could affect the goals of sentencing. The example of the age of defendant going towards the goal of protecting the public is right on. For example in Nellum they bring up many statistics showing that the likelihood of recidivism in older people is extremely unlikely.77 Not including evidence like these statistics in sentencing is unjust since it goes directly towards the goals of sentencing. Sentencing Courts need to me away that now they are required to consider outside factors of the guidelines, such as age or IQ of offender so that the sentences will be appropriate to meet the goals of sentencing. Finally, sentencing courts need to consider public policy when considering sentences, as a check to the Sentencing Guidelines. A key example of this is the 100:1 ratio crack to cocaine system that had been in place these past fifteen years. Judges formally had to sentence crack convictions much harsher than cocaine convictions, this is not the case any more. Judges now can consider any number of reasons to downward depart in crack and cocaine convictions. The argument that crack and powder cocaine are chemically the same drug, therefore the great disparities in the sentencing of drugs that have the same chemical makeup are unwarranted. Judge Cahill declared this opinion best when he said “No crack could exist without cocaine power. Eliminate cocaine and crack disappears!!”78 Judges should downward depart in crack and cocaine convictions because of the clear racial differences in the sentencing. As in the story in the introduction African-Americans are more likely to sell crack because of how inexpensive it is, whereas the major supplier deal in powder cocaine which they sell to be transformed into

King, supra n. 38. U.S. v. Clary, 846 F.Supp. 768 (E.D. Mo. 1995).



crack. The 100:1 quantity ratio in cocaine sentencing causes low-level crack offenders to receive arbitrarily severe sentences compared to high level powder cocaine offenders. Sentencing courts must now take into consideration policies such as the 100:1 ratio and make sure they are just, the courts no longer can blindly follow the Guidelines; they must look to what effect the Guidelines have on offenders and citizens in general.

Appendix p. i