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Post-Booker Sentencing Guidelines

Christopher Bates
May 11, 2006
Legal Studies Senior Seminar
Prof. Marcia Miller

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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.

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).

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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

3
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.

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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
Grassley, supra n. 3, at 352.
8
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

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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
Grassley, supra n. 3, at 347-351.
17
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).

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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
Perry, 389 F. Supp. 2d 278, 289 (2005).
22
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.

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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
Id.
29
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.

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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
Id. at 226, 124 S. Ct. at 744.
38
Ryan S. King, Sentencing with Discretion: Crack Cocaine Sentencing after Booker,
www.sentencingproject.org/pdfs/crackcocaine-afterbooker.pdf (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).

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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
U.S. v. Tabor, 365 F.Supp.2d 1052 (D. Neb. 2005).
45
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).

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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
Id.
54
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.

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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

61
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).

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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
King, supra n. 38.
69
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.

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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
Booker, 543 U.S. at 226, 125 S.Ct. at 744.
73
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.

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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

77
King, supra n. 38.
78
U.S. v. Clary, 846 F.Supp. 768 (E.D. Mo. 1995).

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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

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