Sentencing Levels for Crack and Powder Cocaine: Kimbrough v. United Sates and the Impact of United States v. Booker
Sentencing Levels for Crack and Powder Cocaine:
Kimbrough v. United States and the Impact of
United States v. Booker
Updated January 29, 2008
Brian T. Yeh
American Law Division
American Law Division
Sentencing Levels for Crack and Powder Cocaine:
Kimbrough v. United States and the Impact of United
States v. Booker
Pursuant to the Anti-Drug Abuse Act of 1986, Congress established basic
sentencing levels for crack cocaine offenses. Congress amended 21 U.S.C. § 841 to
provide for a 100:1 ratio in the quantities of powder cocaine and crack cocaine that
trigger a mandatory minimum penalty. As amended, 21 U.S.C. § 841(b)(1)(A)
establishes a mandatory minimum 10-year term of imprisonment and a maximum life
term of imprisonment for offenses involving 5 kilograms of cocaine or 50 grams of
cocaine base. In addition, 21 U.S.C. § 841(b)(1)(B) establishes a mandatory five-
year term of imprisonment for offenses involving 500 grams of cocaine or 5 grams
of cocaine base.
Federal sentencing guidelines established by the United States Sentencing
Commission (the Guidelines) reflect the statutory distinctions. Until recently, the
Guidelines were binding. The judge had discretion to sentence a defendant, but only
within the narrow sentencing range that the Guidelines provided. The Supreme
Court in United States v. Booker declared that the Guidelines must be considered
advisory rather than mandatory. Instead of being bound by the Guidelines,
sentencing courts must treat the federal guidelines as just one of a number of
sentencing factors set forth in 18 U.S.C. § 3553(a) (which include the need to avoid
undue sentencing disparity). Since Booker, some courts have concluded that
although the Guidelines treat 1 gram of crack like 100 grams of powder cocaine, a
judge who does not believe that crack cocaine is 100 times worse than powder
cocaine may now impose a lower sentence than the one recommended by the
Guidelines — arguably, at least so long as the sentence does not go below the
mandatory minimum. Appellate courts that have ruled on the issue believe their
discretion is more circumscribed. In Kimbrough v. United States, the Supreme Court
addressed this issue and held that a federal trial court may impose a sentence below
that called for under the Guidelines’ 100:1 ratio, based on its conclusion that the ratio
is greater than necessary or may foster unwarranted disparity.
The crack/powder disparity issue may be resolved either administratively or
legislatively. The U.S. Sentencing Commission has recommended that Congress
adjust the statutory ratio, and its most recent amendments to the Guidelines eliminate
the 100:1 ratio for future sentencing guideline purposes (except at the point at which
the statutory mandatory minimums are triggered). The Sentencing Commission has
also decided to make these amendments retroactively applicable, thus allowing
eligible crack cocaine offenders who were sentenced prior to November 1, 2007, to
petition a federal judge to reduce their sentences. Although these amendments alter
the crack/powder disparity within the sentencing guidelines, a change to the statutory
100:1 ratio found in 21 U.S.C. § 841(b)(1) would require legislation. Several related
bills have been introduced in the 110th Congress, including H.R. 79, H.R. 460, H.R.
United States v. Booker.........................................4
Booker and the Crack Defendant..................................8
Kimbrough v. United States.....................................12
Amendment of the Sentencing Guidelines..........................14
Drug Quantity Table (Before and After Amendment).............20
Sentencing Levels for Crack and
Powder Cocaine: Kimbrough v. United
States and the Impact of United States v.
United States v. Booker2 declared that the once-binding federal sentencing
guidelines (the Guidelines) set by the United States Sentencing Commission are now
only advisory.3 Until recently, the Guidelines reflected a statutory scheme that made
crack cocaine defendants subject to the same sentence as those defendants trafficking
in 100 times more powder cocaine; thus, the sentences for crack cocaine offenses
were three to over six times longer than those for offenses involving equivalent
amounts of powder cocaine.4 Since Booker, several courts have addressed the
question of whether the 100:1 ratio produces disparities that justify a sentence lower
than that recommended by the Guidelines. The Supreme Court resolved that issue
in Kimbrough v. United States, by holding that a federal trial court may impose a
sentence below that called for under the Guidelines’ 100:1 ratio, based on its
conclusion that the ratio is greater than necessary or may foster unwarranted
The pre-Booker era for federal sentencing began with the Sentencing Reform
Act of 1984,6 which established a sentencing system under the United States
Sentencing Commission’s federal sentencing guidelines.7 The previous system
tailored sentences to the individual defendants. Judges were given broad ranges
1 This report was originally prepared by Paul Starett Wallace, Jr., Specialist, CRS.
2 543 U.S. 220 (2005).
3 Id. at 245-46.
4 E.g., U.S.S.G. §2D1.1(c)(1)(November 1, 2006)(both 150 kilograms of powder cocaine
and 1.5 kilograms of cocaine base were assigned a base offense level of 38); the same ratio
continued throughout §2D1.1(C) for lesser amounts and lower base offense levels).
Amendments that became effective on November 1, 2007, adjusted the ratios, U.S.S.G.
§2D1.1(c)(1) (November 1, 2007).
5 Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007).
6 Sentencing Reform Act of 1984, 28 U.S.C. § 991(b)(1) (1988).
7 23 U.S.C. § 995(a)(20) (1988).
within which they could, at their discretion, sentence a defendant.8 The sentence was
supposed to be based on the defendant’s character as much as his conduct.
Thereafter, the discretion given to the judge was passed on to the Parole Commission
to determine how much of the judge’s sentence the defendant ultimately served.9
Under the Guidelines, the judge’s role at sentencing was more uniform and
unvaried.10 The judge could inquire into a number of factors, including the
defendant’s conduct and criminal history. The judge then weighed each factor
according to the Sentencing Commission’s mandate and calculated an offense level
for the defendant.11 The judge had discretion to sentence the defendant but, with
little ground for departure, only within the narrow sentencing range that the
Guidelines provided for each offense level.12 The Sentencing Reform Act also
abolished the Parole Commission’s role.13
Crack cocaine became prevalent in the mid-1980s and received widespread
media attention following the death of the University of Maryland all-American
basketball player, Len Bias, from the use of cocaine.14 Crack cocaine was portrayed
as a violence-inducing, highly addictive plague of inner cities, and this notoriety led
to the quick passage of a federal sentencing law concerning crack cocaine in 1986.15
This legislation created two mandatory sentencing ranges for drug offenses.16 The
lower bracket spanned periods of imprisonment ranging from a mandatory minimum
of 5 years to a maximum of 40 years; the higher bracket spanned periods ranging
from a mandatory minimum of 10 years to a maximum of life.17 Congress prescribed
the threshold quantities of both crack and powdered cocaine required to bring a
particular offense within either bracket.18 Despite the chemical identity of crack and
powder cocaine, Congress set widely disparate threshold quantities for the two drugs,
requiring 100 times more powder cocaine than crack cocaine to trigger inclusion in
8 28 U.S.C. § 995(b) (1988).
9 28 U.S.C. § 995(a)(9-10) (1988).
10 28 U.S.C. § 994(w) (1988).
11 28 U.S.C. § 991(a)(1) (1988).
12 See 18 U.S.C. §3553(b) (the statute specifies what departures are allowable in cases where
“there exist an aggravating or mitigating circumstance of a kind, or to a degree not
adequately taken into consideration by the Sentencing Commission in formulating the
13 P.L. 98-473, §218(a)(5), 98 Stat. 2027 (1984).
14 Washington Post, June 20, 1986, p. A-1, article by Keith Harriston and Sally Jenkins.
15 The sentencing differential for crack and powder cocaine offenses had its origin in the
Anti-Drug Abuse Act of 1986, P.L. 99-570, 100 Stat. 3207 (1986) (codified in pertinent part
at 21 U.S.C. § 841). The act speaks of “cocaine base,” not crack. See 21 U.S.C. §
841(b)(1)(A)(iii). The guidelines, however, define cocaine base to mean crack cocaine. See
United States Sentencing Guidelines (U.S.S.G.) § 2D1.1, n.D (November 1, 2007).
16 See id. § 1002 (codified at 21 U.S.C. § 841(b)(1)).
17 See id.
18 See id.
a particular range.19 The rationale offered was that many considered crack much
more addictive than powder cocaine, and they feared a wave of violent crimes
spawned by drug users as well as the health threats to infants born to addicted
mothers.20 The Sentencing Commission also incorporated this ratio into the drug
guidelines, although it later concluded that the 100:1 powder to crack ratio produces
sentences that are greater than necessary to satisfy the purposes of punishment
because it exaggerates the relative harmfulness of crack cocaine; the majority of
crack offenders have low drug quantities, low criminal histories, and no history of
violence. The Sentencing Commission also concluded that a ratio providing for
sentences that are greater than necessary creates an unwarranted disparity,
inappropriate uniformity, racial disparity, and disrespect for the law.21
Over the years, Congress has had second thoughts about the disparity in drug
sentences. To achieve a more equitable balance, as part of the Violent Crime Control
and Law Enforcement Act of 1994, Congress enacted a safety valve provision, which
provided an avenue for lowering mandatory minimum sentences in a limited category
of drug cases.22 During the same year, Congress directed the Sentencing Commission
to study the crack-to-powder ratio and submit recommendations relative to whether
the ratio should be retained or modified.23 The Sentencing Commission
recommended revision of the 100:1 quantity ratio in 1995, finding the ratio to be
unjustified by the small differences in the two forms of cocaine.24 Congress rejected
the recommendation of the Sentencing Commission and did not change the law.25
19 See id. Congress set the threshold quantities for the lower range at 500 grams of powder
cocaine and 5 grams of cocaine base and the threshold quantities for the higher range at 5
kilograms and 50 grams, respectively. Thus, for sentencing purposes, Congress treated 1
unit of crack cocaine on the same level as 100 units of powder cocaine. Relative to the
difference between crack and powder cocaine — powder cocaine is derived from coca paste,
which is in turn derived from the leaves of the coca plant — crack cocaine is made by taking
cocaine powder and cooking it with baking soda and water until it forms a hard substance.
These “rocks” can then be broken into pieces and sold in small quantities. Each gram of
powder cocaine produces approximately .89 grams of crack. United States Sentencing
Commission, Cocaine and Federal Sentencing Policy (May 2002).
20 See United States Sentencing Commission, Special Report to Congress: Cocaine and
Federal Sentencing Policy, pp. 117-118 (1995).
21 See United States Sentencing Commission, Cocaine and Federal Sentencing Policy,
Executive Summary, pp. v-viii (May 2002).
22 See 18 U.S.C. § 3553 (f); see also United States v. Matos, 328 F.3d 34, 38-42 (1st Cir.
23 See Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, § 280006,
24 See Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 60
Fed. Reg. 25,075-25,076 (May 10, 1995).
25 See P.L. 104-38, §1, 109 Stat. 334, 334 (1995).
Two years later, the Sentencing Commission issued a follow-up report.26 In this
report, the commission reiterated its position that the 100:1 ratio was excessive.27 It
recommended that the 100:1 ratio be reduced to 5:1 by increasing the threshold
quantities for offenses involving crack cocaine and decreasing the threshold
quantities for offenses involving powder cocaine.28 Again, Congress took no action
and did not amend the law.
In 2001, the Senate Judiciary Committee asked the Sentencing Commission to
revisit its position regarding the 100:1 ratio, and in the subsequent year, the
Sentencing Commission issued its third report.29 In this report, the commission again
proposed narrowing the gap that separated crack cocaine offenses from powder
cocaine because (1) the severe penalties for crack cocaine offenses seemed to fall
mainly on low-level criminals and African Americans, (2) the dangers posed by crack
could be satisfactorily addressed through sentencing enhancements that would apply
neutrally to all drug offenses, and (3) recent data suggested that the penalties were
disproportionate to the harms associated with the two drugs.30 Unlike the previous
report, the Commission did not recommend a reduction in the powder cocaine
threshold. The Commission did recommend elimination of the five-year mandatory
minimum for simple possession of crack cocaine. Congress considered the substance
of the commission’s 2002 report but took no action.
Judges have long been critical of the automatic prison terms, commonly referred
to as mandatory minimum sentences, which were enacted pursuant to the Anti-Drug
Abuse Act of 1986 in part to stem the drug trade.31 Now some judges are saying that
with the combination of Democratic leadership and the growing Republican support
for a modest change, this may provide the best chance in years for a review of the
system if the 110th Congress revisits the sentencing laws which, according to Senate
Judiciary staff members, is quite likely.32
United States v. Booker
Prior to the Supreme’s Court’s decision in United States v. Booker,33 the case
law was generally cognizant of the seriousness in the sentencing disparities between
26 See U.S. Sentencing Commission, Cocaine and Federal Sentencing Policy (1997) (1997
27 Id. at 2.
28 Id. at 2, 5, 9.
29 See United States Sentencing Commission, Cocaine and Federal Sentencing Policy
(2002), pp.2-3 (2002 Report).
30 Id. at v-viii.
31 New York Times, January 9, 2007, pg. 12.
33 543 U.S. 220 (2005).
crack and powder cocaine but regularly deferred to Congress’s policy judgements.34
This undertaking led to a series of decisions that upheld the 100:1 ratio against a
variety of challenges, which included the Equal Protection Clause35 and the rule of
lenity.36 It was also decided that under the mandatory guidelines system that was
popular before Booker, neither the Sentencing Commission’s criticism of the 100:1
ratio nor its unacknowledged 1995 proposal to eliminate the differential provided a
valid basis for leniency in the sentencing of crack cocaine offenders.37
In Booker, the Supreme Court consolidated two lower court cases and
considered them in tandem, United States v. Fanfan38 and United States v. Booker.39
Booker was arrested after officers found in his duffle bag 92.5 grams of crack
cocaine. He later gave a written statement to the police in which he admitted selling
an additional 566 grams of crack cocaine.40 A jury in the United States District Court
for the Western District of Wisconsin found Booker guilty of two counts of
possessing at least 50 grams of cocaine base with the intent to distribute it, in
violation of 21 U.S.C. § 841(b)(1)(A)(iii).41 At sentencing, the judge found by a
preponderance of the evidence that Booker had distributed 566 grams in addition to
the 92.5 grams that the jury found; the judge also found that Booker had obstructed
justice.42 In the absence of the judge’s additional findings, Booker would have only
faced a maximum sentence of 262 months under the United States Sentencing
Guidelines.43 The judge, however sentenced Booker to 360 months, based on the
Guidelines’ treatment of the additional cocaine and the obstruction of justice.44 The
34 See, e.g., United States v. Eirby, 262 F.3d 31, 41 (1st Cir. 2001); United States v.
Singleterry, 29 F.3d 733, 741 (1st Cir. 1994) ; United States v. Anderson, 82 F.3d 436, 440-th
35 See, e.g., United States v. Graciani, 61 F.3d 70, 74-75 (1st Cir. 1995) ; United States v.
Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996); United States v. Thomas, 86 F.3d 647, 655th
(7 Cir. 1966).
36 See, e.g., United States v. Manzueta, 167 F.3d 92, 94 (1st Cir. 1999); United States v.
Herron, 97 F.3d 234, 238-39 (8th Cir. 1996); United States v. Canales, 91 F.3d 363, 367-69
(2d Cir. 1996).
37 See United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996); United States v. Sanchez,
United States v. Alton, 60 F.3d 1065, 1070-71 (3d Cir. 1995); United States v. Haynes, 985
F.2d 65, 70 (2d Cir. 1993)(each discussing the possibility of a downward departure under
U.S.S.G. § 5K2.0). See generally, CRS Report 97-743, Federal Cocaine Sentencing: Legal
Issues, by Paul S. Wallace Jr.
38 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 542 U.S. 956 (2004).
39 375 F.3d 508 (7th Cir. 2004), cert. granted, 542 U.S. 956 (2004).
43 Id. at 510.
United States Court of Appeals for the Seventh Circuit affirmed the conviction but
overturned the sentence.45
Narcotic agents arrested Fanfan when they discovered 1.25 kilograms of cocaine
and 281.6 grams of cocaine base in his vehicle.46 A jury in the District of Maine
found that he possessed “500 or more grams” of cocaine with the intent to distribute,
in violation of 21 U.S.C. § 846. At sentencing, the court determined that Fanfan was
the “ring leader of a significant drug conspiracy,” which, combined with his criminal
history, resulted in a sentence of 188 to 235 months under the Guidelines. However,
four days before the June 28, 2004, sentencing hearing, the Supreme Court decided
Blakely v. Washington,47 holding that as part of a state sentencing guideline system,
a Washington state judge could not find an aggravating fact authorizing a higher
sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan
considered the effect that Blakely may have on the federal sentencing Guidelines and
recalculated the Guidelines based only on the possession of 500 grams and imposed
the 78 month maximum for that range.
The Supreme Court granted certiorari in Booker and Fanfan in an effort to give
some guidance to lower courts that had begun a variety of applications of the Blakely
decision to federal prisoners. For example, in Booker, the Seventh Circuit found that
the federal sentencing guidelines violate the Sixth Amendment in some situations.48
The Fifth Circuit, on the other hand, concluded that Blakely did not apply to the
Guidelines because to do so would create a separate “offense” for each possible
sentence for a particular crime.49 The Second Circuit, without resolving the issue,
certified questions to the Supreme Court regarding the application of Blakely to
federal sentences pursuant to the Guidelines.50
The Supreme Court issued a majority opinion in two parts. The first part,
written by Justice Stevens for a 5-4 majority (Justices Scalia, Souter, Thomas, and
Ginsburg) decided that the Guidelines violate the Sixth Amendment and are thus
unconstitutional because they require a judge to increase a sentence above the
maximum guideline range if the judge finds facts to justify an increase. They said
a defendant’s right to trial by jury is violated if a judge must impose a higher
sentence than the sentence that the judge could have imposed based on the facts
found by the jury.51 Pursuant to 18 U.S.C. § 3553(b), the Guidelines were mandatory
45 Id. at 515.
46 United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28 2004).
47 542 U.S. 296 (2004).
48 United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004), judgment of the Court of
Appeals aff’d and remanded; judgment of the District Court vacated and remanded, 543
U.S. 160 (2005).
49 United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004).
50 United States v. Penaranda, 375 F.3d 238 (2d Cir. 2004).
51 For example, the Guidelines require a defendant convicted by a jury of possession with
intent to distribute five grams of crack cocaine to be sentenced within a guideline range of
and thus create a statutory maximum for the purpose of Apprendi v. New Jersey, 530
U.S. 466 (2000), which had condemned mandatory judicial fact-finding for purposes
of imposing a sentence beyond the statutory maximum.52 The Court had applied
Apprendi’s reasoning to a state sentencing guideline system in Blakely v.
Washington, and the rationale applied with equal force to the federal guideline
system in Booker.53 Under the then current administration of the Guidelines, judges,
rather than juries, were required to find sentence determining facts, and thus the
practice was unconstitutional.
The second part, written by Justice Breyer for a different 5-4 majority (Justices
Rehnquist, O’Connor, Kennedy, and Ginsburg) remedies this defect by holding that
the Guidelines are advisory, thereby making it necessary for the courts to consider the
Guidelines along with other traditional factors when deciding on a sentence, and also
finding that the appellant courts may review sentences for “reasonableness.” Driven
by the Court’s first holding, it “excises” (through severance and excision of two
provisions) 18 U.S.C. § 3553(b)(1) and §3742(e) from the Sentencing Reform Act
and declares the Guidelines are now “advisory.”54 Pursuant to § 3553(a), district
judges need only to “consider” the Guideline range as one of many factors, including
the need for the sentence to provide just punishment for the offense (§ 3553(a)(2)(A),
to afford adequate deterrence to criminal conduct (§ 3553(a)(2)(B), to protect the
public from further crimes of the defendant (§ 3553(a)(2)(C)), and to avoid
unwarranted sentencing disparities among similarly situated defendants (§3553(a)
(6)).55 The Sentencing Reform Act, absent the mandate of § 3553(b)(1), authorizes
the judge to apply his own perceptions of just punishment, deterrence, and protection
of the public, even when these differ from the perceptions of the United States
Sentencing Commission.56 The Sentencing Reform Act continues to provide for
appeals from sentencing decisions (regardless of whether the trial judge sentences are
within or outside of the Guideline range) based on an “unreasonableness” standard
(18 U.S.C. §§ 3553(a)57 and 3742(e)(3)).58
63 to 78 months. Prior to Booker, the Guidelines required a judge to increase the sentence
beyond that prescribed range if the judge found additional facts (e.g., the presence of a gun,
additional drug quantities, or a leadership role in the illegal activity). Each of these factual
findings required a new higher sentencing range. The Court said a judge may not go over
the sentence at the top of the Guideline range authorized by the jury — in this case 78
months — unless the jury finds the necessary facts for the higher range or the defendant
admits to them.
52 543 U.S. at 221. Apprendi held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490.
53 Id. at 244.
54 Id. at 246-247.
55 Id. at 260.
56 Id. at 234.
57 The primary directive in Section 3553(a) is for sentencing courts to “impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph
Booker and the Crack Defendant
After Booker, the federal courts have wrestled with whether they may or must
impose sentences below the Guidelines’ ranges in crack cocaine cases in view of the
United States Sentencing Commission’s conclusions and recommendations, the facts
and circumstances of the case, the history and characteristics of the defendant, and
the command of 18 U.S.C. § 3553(a)(2)(6) to avoid unwarranted sentencing
disparity. Typically, the federal courts follow a three-step sentencing procedure in
which they determine “(1) the applicable advisory range under the Sentencing
Guidelines; (2) whether, pursuant to the Sentencing Commission’s policy statements,
any departures from the advisory guideline range clearly apply; and (3) the
appropriate sentence in light of the statutory factors to be considered in imposing a
There is support for the view that the federal courts are not compelled to lower
a sentence recommended by the Guidelines based on the sentencing differential for
crack cocaine versus powder cocaine.60 On the other hand, in more than a few cases,
Booker has led to lower sentences than those suggested by the 100:1 ratio ranges
established in the Guidelines. To wit:
!United States v. Nellum, 2005 WL 300073 (N.D. Ind. February 3,
imposing sentence of 108 months where given the particular
circumstances of the case — Nellum’s age, the likelihood of
recidivism, his status as a veteran, his strong family ties, his medical
condition, and his serious drug dependency — the Court did not
view this disparity as being “unwarranted”; using age/recidivism
information from the Sentencing Commission; declining to address
100:1 crack-powder issue but considering the fact that drug weight
escalated based on controlled buys).
2.” Section 3553(a)(2) states that such purposes are (A) to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most effective
In determining the minimally sufficient sentence, § 3553(a) further directs sentencing
courts to consider the following factors: (A) “the nature and circumstances of the offense
and the history and characteristics of the defendant” (§ 3553(a)(1)); (B) the penological
needs to be served by the sentence (§3553(2)); (C) “the kinds of sentences available” (§
3553(a)(3)); (D) “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct” (§ 3553(a)(6)); and (E) “the
need to provide restitution to any victims of the offense.” (§ 3553(a)(7)).
58 543 U.S. at 261.
59 United States v. Beamon, 373 F. Supp.2d 878 (E.D. Wis. 2005).
60 United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005).
!United States v. Clay, 2005 WL 1076243 (E.D. Tenn. 2005) (taking
all the factors into consideration, including the congressional
mandate that sentences for crack offenses be stiffer than for cocaine
offenses, the Court found that the following factors outweigh the
significant weight that it had determined to give to the sentencing
guidelines advisory range, regardless of whether it considers the
range to be 235 to 293 months [based on judicial fact-finding] or
188 to 235 months [based on jury fact-finding]; the defendant’s
history and characteristics as set forth; his criminal history category
overstates his criminal history and weighs in his favor against the
likelihood that he will commit another offense; the fact that he
withdrew from the conspiracy and led a productive life for one year
prior to his arrest in this case weighs in his favor against the
likelihood that he will commit another offense; and the unjustified
disparity in the 100:1 quality ratio for punishment between cocaine
base or crack and powder cocaine; based on a careful consideration
of all the factors listed in 18 U.S.C. § 3553(a), the Court found that
a reasonable sentence for the defendant was 156 months on each
count to run concurrently, a sentence that is sufficient, but not
greater than necessary, to serve the purpose of sentencing established
!United States v. Williams, 372 F. Supp.2d 1335 (M.D. Fla. 2005)
(District Court’s discretion is not limited to the sentence that the
government advocates; instead, the court will consider the
sentencing guidelines on an advisory basis in the context of statutory
factors in 18 U.S.C. § 3553. The Court was mindful of the
substantial criticism of the sentencing disparity between powder
cocaine and crack cocaine — the same drug in different forms. The
Court was also aware of the evidence suggesting that this disparity
has a discriminatory impact on African Americans, of whom
Williams is one — the 17-year sentence is a substantial term for a
relatively minor offense).
!Simon v. United States, 361 F. Supp.2d 35 (S.D.N.Y. 2005) (in
imposing sentence lower than what advisory guideline range called
for based on 600 grams of crack, considering disparity between
crack and powder as principal factor, but also considering the
defendant’s age, medical condition, procedural history of case, and
sentence of co-defendant).
!United States v. Moreland, 366 F. Supp.2d 416 (S.D.W.Va. 2005),
vac’d in part, 437 F.3d 424 (4th Cir. 2006) (satisfied that the
defendant was neither a “repeat violent offender” nor “drug
trafficker,” a sentence of 10 years in prison, followed by an
eight-year term of supervised release rather than the advisory
Guideline sentence of 30 years to life for distributing five grams or
more of cocaine base was appropriate and reasonable for achieving
the goals in § 3553(a)).
In some cases, after considering the factors set forth in 18 U.S.C. § 3553(a), the
courts have found a different ratio, either 20:1 or 10:1, more compatible with the
statutory command of 18 U.S.C. § 3553(a)(6) to weigh the need to avoid unwarranted
!United States v. Smith, 359 F. Supp.2d 771 (E.D. Wis. 2005)
(defendant subject to Guidelines recommended range of from 121 to
151 months and a statutory mandatory minimum was sentenced to
18 months based upon the government’s motion for a substantial
assistance departure, a 20:1 ratio [supported by the Sentencing
Commission’s 2002 report], the defendant’s employment history,
community service, family responsibilities, and good conduct since
commission of the offense).
!United States v. Leroy, 373 F.Supp.2d 887 (E.D. Wis. 2005)
(substituting a 20:1 ratio for the 100:1 ratio used in the Guidelines,
but otherwise imposing a sentenced recommended by them, the
court imposed a sentence at the bottom a 70-87 month range [rather
than one within 100-125 range the Guidelines called for with the
!United States v. Castillo, 2005 WL 1214280 (S.D.N.Y. May 20,
2005) (substituting a 20:1 ratio for the 100:1 ratio used in the
Guidelines, the court imposed a sentence at the bottom of the 87-108
month range rather than 135-168 month range the Guidelines
!United States v. Perry, 389 F.Supp.2d 278 (D.R.I. 2005) (finding
that use of a 20:1 ratio would result in a 97-121 month range rather
than the Guidelines’ 188 -235, but bound by a 10-year mandatory
minimum, the court sentenced the defendant to 120 months’
!United States v. Fisher, 451 F.Supp.2d 553 (S.D.N.Y. October 11,
2005) (substituting a 10:1 ratio for the 100:1 ratio with an increase
in light of 18 U.S.C. § 3553(a)(2)(C)(public protection), the court
imposed a sentence of 121 months rather than one within the 235-
!United States v. Stukes, 2005 WL 2560244 (S.D.N.Y. October 12,
2005) (the court opted for a sentence within the 33-41 month range
[20:1 ratio], rather than the Guidelines’ recommended range of 51-
!Clairborne v. United States, cert. granted, 127 S.Ct. 551 (2006).
Mario Clairborne was convicted of possession of 5.03 grams of
crack cocaine in federal court and was subject to a five-year
mandatory minimum sentence for the offense. But in light of
Claiborne’s lack of a criminal history and the absence of violence
associated with his offense, the district court judge applied a safety-
valve exemption from the mandatory minimum. The Court was to
review the sentence which represented a departure below the federal
Sentencing Guideline to determine whether it was reasonable, and
to decide whether it was consistent with United States v. Booker 543
U.S.220 (2005), to require that a substantial departure from the
Guidelines be justified by extraordinary circumstances, but the lower
court’s decision was vacated as moot when the Court was advised
that Clairborne had died, 127 S.Ct. 2245 (2007).
The Appellate courts have not been so inclined to ignore the Guidelines. For
instance, the First Circuit held that the district court could not discard the guideline
range and construct a new sentencing range,61 but could take into account, on a case-
by-case basis, “the nature of the contraband and/or the severity of a projected
guideline sentence.”62 The First Circuit described the disparity as a “problem that has
tormented enlightened observers ever since Congress promulgated the 100:1 ratio”
and “share[d] the district court’s concern about the fairness of maintaining the across-
the-board sentencing gap associated with the 100:1 crack-to-powder ratio.”63 But to
recapitulate, said the First Circuit, “we hold that the district court erred ... when it
constructed a new sentencing range based on the categorical substitution of a 20:1
crack-to-powder ratio for the 100:1 embedded in the sentencing guidelines.”64 A
panel in the Fourth Circuit agreed:
[t]he principal question ... is whether a district court in the post-Booker world can
vary from the advisory sentencing range under the guidelines by substituting its
own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder
cocaine ratio chosen by Congress. For the reasons stated below, we conclude a
court cannot.... [The] sentencing court must identify the individual aspects of the
defendant’s case that fit within the factors listed in 18 U.S.C. § 3553(a) and in
reliance on those findings, impose a non-Guideline sentence that is reasonable
... in arriving at a reasonable sentence, the court simply must not rely on a factor
that would result in a sentencing disparity that totally is at odds with the will of65
61 United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).
62 Id. at 65.
64 Id. at 64.
65 United States v. Eura, 440 F.3d 625, 627, 634 (4th Cir. 2006). Among some of the district
courts, United States v. Doe, 412 F.Supp.2d 87 (D.D.C. 2006), it was also observed that
sentencing courts lack the authority to impose a sentence below the applicable Guidelines
range solely based on perceived disparities attributable to the crack cocaine/powder cocaine
sentencing differential; see also United States v. Tabor, 365 F. Supp.2d 1052 (D.Neb. 2005)
(No need for a departure, said the court, under pre-Booker theory, and no reason to vary or
deviate from the crack cocaine Guidelines based on defendant’s possession with intent to
distribute 50 or more grams of crack cocaine, thereby making him eligible imprisonment for
10 years to life under 21 U.S.C. § 841(b)(1)(A)); United States v. Valencia-Aguirre, 409
F.Supp.2d 1358 (M.D. Fla. 2006).
The Fourth Circuit decision formed the basis for its later unpublished opinion
in Kimbrough v. United States.66
Kimbrough v. United States
Norfolk, Virginia police arrested Derrick Kimbrough after they came upon him
in the midst of what appeared to be a curbside drug sale. At the time, they discovered
more than $1,900 in cash, 56 grams of crack cocaine, and more than 60 grams of67
powder cocaine in his car. They also recovered a loaded hand gun for which
Kimbrough was holding a full magazine clip.68 Kimbrough subsequently pleaded6970
guilty to federal charges for trafficking in more than 50 grams of crack, trafficking
in cocaine powder,71 conspiracy to traffic in crack,72 and possession of a firearm73
during and in furtherance of a drug trafficking offense. He faced mandatory
minimum terms of imprisonment of 10 years on the crack trafficking charge and of74
5 years on the gun charge. The applicable sentencing guidelines called for a
sentence of imprisonment in the range of 168 to 210 months on the drug charges with
an additional 60 months on the gun charge (to be served consecutive to the drug
charges for a range of imprisonment of 228 to 270 months).75 Kimbrough’s attorney
apparently urged a departure from the Guideline’s recommended sentence based on
the Sentencing Commission’s dissatisfaction with the 100:1 ratio, Kimbrough’s
military service, the absence of any prior felony conviction, his employment record,
and the suggestion that federal involvement represented an instance of “sentence76
shopping” in what was otherwise a state case.
66 174 Fed.Appx. 798 (4th Cir. May 9, 2006), cert. granted, 127 S.Ct. 2933 (2007).
67 Brief for the United States at 10-11, Kimbrough v. United States, No. 06-6330 (2007)(U.S.
68 Id. at 11.
69 174 Fed.Appx. at 798.
70 21 U.S.C. § 841(a),(b)(1)(A)(iii).
71 21 U.S.C. § 841(a),(b)(1)(C).
72 21 U.S.C. §§ 846, 841(a),(b)(1)(A)(iii).
73 18 U.S.C. § 924(c)(1)(A)(i).
74 21 U.S.C. § 841(b)(1)(A), 18 U.S.C. § 924(c)(1)(A)(i).
75 Kimbrough v. United States, 174 Fed.Appx. at 798-99.
76 Brief of Petitioner at 9-10, Kimbrough v. United States, No. 06-6330 (2007)(Petitioner’s
Brief). As for the sentence shopping contention, drug trafficking is a crime under federal
law and the laws of each of the states. Consequently, most drug offenses can be tried in
either state or federal court. In United States v. Armstrong, 517 U.S. 456 (1996), the
defendant argued unsuccessfully that the Constitution precluded an alleged practice under
which minority crack defendants were being federally prosecuted, while similarly situated
white defendants faced only less severe state prosecution. There the Court observed that a
selective prosecution claimant “must demonstrate that the federal prosecution policy had a
discriminatory effect and that it was motivated by a discriminatory purpose. To establish a
discriminatory effect in a race case, the claimant must show that similarly situated
Under the facts before it, the district court considered the sentence
recommended by the Guidelines “ridiculous.”77 It sentenced Kimbrough to the
statutory minimum of 180 months in prison (10 years on the drug charges and 5 years
on the gun charge).78 It did so in part because of the sentencing disparity for crack
and powder cocaine.79 However, the Fourth Circuit Court of Appeals vacated and
remanded the sentence, consistent with its holding in Eura that “a sentence that is
outside the guidelines range is per se unreasonable when it is based on a
disagreement with the sentencing disparity for crack and powder offenses.”80 On
June 11, 2007, the Supreme Court agreed to consider whether the district court
abused its discretion when it determined that in Kimbrough’s case the sentencing
range recommended by the Guidelines would be greater than necessary to serve the
penological purposes described in 18 U.S.C. § 3553(a)(2) and should not be
controlling in light of the instruction in 18 U.S.C. § 3553(a)(6) to consider the need
to avoid unwarranted disparity among similarly situated defendants.81
On December 10, 2007, the Supreme Court reversed the Court of Appeals in a
7-to-2 ruling. Writing for the majority, Justice Ginsburg held that although a district
judge must respectfully consider the Guidelines range as one factor (among many)
in determining an appropriate sentence, the judge has discretion to depart from the
Guidelines based on the disparity between the Guidelines’ treatment of crack and
powder cocaine offenses.82 As the Booker decision had made clear that the
individuals of a different race were not prosecuted.” Id. at 465. Federal crack prosecutions
have apparently been particularly prevalent in the Fourth Circuit, see e.g., “Retroactivity for
crack sentence cuts debated,” The National Law Journal at 4 (October 22, 2007)(citing
Sentencing Commission statistics indicating that should the Commission’s recent crack
cocaine amendments be made retroactive the Fourth Circuit would have almost twice as
many eligible prisoners as the next highest Circuit and over nine times as many as the largest
Circuit). Nevertheless, this hardly demonstrates selective prosecution. Moreover, since
state sentencing practices differ from state to state, requiring compatibility of federal and
state sentencing patterns within a given state would be at odds with the Guidelines’
underlying premise of uniform, nationwide federal sentencing practices.
77 Petitioner’s Brief at 11.
78 Kimbrough v. United States, 174 Fed.Appx. at 799.
79 Id. The district court apparently cited Kimbrough’s military and employment records, the
fact he had no prior felony convictions, and “the court specifically relied upon the fact that
‘the Sentencing Commission has recognized that crack cocaine has not caused the damage
that the Justice Department alleges it has and on its recognition of the disproportionate and
unjust effect that crack cocaine guidelines have in sentencing.’” Petitioner’s Brief at 11
(internal citations omitted).
81 Kimbrough v. United States, cert. granted, 127 S.Ct. 2933 (2007).
82 Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558, 564 (2007). In an opinion
issued on the same day as Kimbrough, the Supreme Court in Gall v. United States, 552 U.S.
___, 128 S. Ct. 586, 596 (2007) opined that while district courts must treat the Guidelines
as the “starting point and the initial benchmark,” they are not the only consideration.
Sentencing Guidelines — which include the cocaine Guidelines — are to be advisory
only, the Fourth Circuit Court of Appeals had erred in holding the crack/powder
disparity “effectively mandatory,” the Court explained.83 Furthermore, the Supreme
Court concluded that the 180-month sentence imposed on Kimbrough is reasonable
given the particular circumstance of Kimbrough’s case and that the district judge did
not abuse his discretion in finding that the crack/powder disparity is at odds with the
objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2).84
Amendment of the Sentencing Guidelines
In May, the United States Sentencing Commission submitted proposed
amendments to the Guidelines (including those applicable in Kimbrough) that
essentially did away with the 100:1 ratio for purposes of the Guidelines (except at the
point at which the statutory mandatory minimums are triggered).85 It also
recommended that the thresholds for the statutory mandatory minimums for
trafficking in crack be raised, thereby eliminating the statutory 100:1.86 In July, the
Commission proposed that the changes relating to what had been the 100:1 ratio in
the Guidelines be made retroactively applicable, should they become effective on
November 1, 2007, in the absence of a Congressional objection.87 On November 1,
2007, the amendments to the Guidelines including those relating to crack and the
100:1 ratio went into effect.88 On December 11, 2007, the Sentencing Commission
unanimously voted to apply the crack amendment retroactively.89
Furthermore, the Court rejected the need for requiring district judges to demonstrate that
“extraordinary” circumstances justify a sentence outside the Guidelines range. Id. at 595.
84 Id. at 576.
85 72 Fed. Reg. 28558 (May 21, 2007). A change in the statutory 100:1 ratio found in 21
U.S.C. § 841(b)(1) would require Congressional action.
86 United States Sentencing Commission, Report to Congress: Cocaine and Federal
Sentencing Policy, p.8 (May 2007), available on November 13, 2007 at
87 72 Fed. Reg. 41794 (July 31, 2007). Proposed Guideline amendments submitted to
Congress on or before May 1 become effective on the following November 1, unless
modified or disapproved by Act of Congress. 28 U.S.C. § 994(p). A federal court may
modify a sentence it has imposed to reflect a subsequently reduced sentencing range, to the
extent the modification is consistent with Sentencing Commission policy statements. 18
U.S.C. § 3582(c)(2).
88 United States Sentencing Commission, Guidelines Manual (November 1, 2007), available
on November 13, 2003 at [http://www.ussc.gov/2007guid/GL2007.pdf].
89 U.S. Sentencing Commission, News Release: U.S. Sentencing Commission Votes
Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses, Dec. 11,
As noted earlier,90 the Controlled Substances Act makes trafficking in 5 to 50
grams of crack cocaine or 500 to 5,000 grams of cocaine powder punishable by
imprisonment for not less than 5 years and not more than 40 years.91 It makes
trafficking more than 50 grams of crack or more than 5,000 grams of cocaine powder
punishable by imprisonment for not less than 10 years and not more than life.92
These sanctions, like most federal criminal penalties, are reflected in the Sentencing
Guidelines. The Guidelines assign most federal crimes to an individual guideline
which in turn assigns the offense an initial base sentencing level. Drug trafficking
offenses, for example, have been assigned to section 2D1.1, which sets the base
offense level according to the amount of crack or powder cocaine involved in a
particular case.93 Levels are then added or subtracted on the basis of any aggravating
or mitigating factors presented in a particular defendant’s case. For example, a
defendant’s offense level may be decreased by 2 or 4 levels, if the offense involved
a number of participants and the defendant’s role in the offense was minor or
minimal.94 A defendant’s final offense level and his criminal history (criminal
record) govern the sentence recommended by the Guidelines.95 The Guidelines
assign sentencing ranges for each of the 43 possible final offense levels.96 Each of
the 43 has a series of six escalating sentencing ranges to mirror the extent of the
defendant’s criminal history.97 For example, if a defendant has no prior criminal
record and his final sentencing level is 26, the Guidelines recommend that the
sentencing court impose a term of imprisonment somewhere between 63 and 78
months; at the other extreme, if a defendant has an extensive prior criminal record
and his final sentencing level is the same 26, the Guidelines recommend a sentencing
range of between 120 to 150 months.98
The drug quantity table that is part of the drug sentencing guideline, U.S.S.G.
§2D1.1(c), assigns offenses to one of several steps with corresponding sentencing
levels based on the kind and volume of the controlled substances involved in the
offense.99 For example, an offense involving 150 KG or more of powder cocaine is
assigned a step (1) offense level of 38, while an offense involving less than 25 grams
90 Supra n.13.
91 21 U.S.C. 841(b)(1)(B)(ii), (iii).
92 21 U.S.C. 841(b)(1)(A)(ii), (iii).
93 U.S.S.G. §2D1.1(c)(Drug Quantity Table)(November 1, 2007).
94 U.S.S.G. §3B1.2 (November 1, 2007).
95 U.S.S.G. §1B1.1 (November 1, 2007).
96 U.S.S.G. ch.5A (Sentencing Table) (November 1, 2007).
98 Id. A defendant’s criminal history score is separately calculated, U.S.S.G. ch.4, and
scores correspond to 1 of the 6 sentencing ranges assigned to each final offense level. In the
case of offense level 26, for instance, the sentencing range for a defendant with an extensive
criminal record (13 or more criminal history points) is 120 to 150 months rather than the 63
to 78 months for a first time offender. Id
99 U.S.S.G. §2D1.1(c)(November 1, 2007).
is assigned a step (14) offense level of 12.100 Prior to the amendments effective on
November 1, 2007, each of the steps reflected a 100:1 ratio between crack and
powder cocaine; for instance, offenses involving either more than 150 KG of powder
cocaine or more than 1.5 KG of crack cocaine were each assigned a step (1) offense
level of 38.101 In order to reduce the prospect of a Guideline result beneath the
statutory minimums, the pre-amendment Guidelines assigned the 5-year-minimum-
triggering 5G(crack)/500G(powder) offenses to U.S.S.G. §2D1.1(c), step (7), with
an offense level of 26 which translated to a sentencing range of from 5 years and 3
months (63 months) to 6 years and 6 months (78 months).102 It made a similar
assignment for the 10-year mandatory minimum offenses involving 50 grams of
crack or 5,000 grams of powder cocaine: level 32 with a sentencing range for first
offenders of from 10 year and 1 month (121 months) to 12 years and 7 months (151
The Commission’s amendments focused first on the assignment for crack
offenses subject to a mandatory minimum. The Commission noted that its earlier
assignment set the bottom of the two ranges higher than necessary to satisfy
minimum sentencing requirements (5 years and 3 months in the case of 5 grams; 10
years and 1 month in the case of 50 grams).104 Its amendments reassign those
offenses to offense levels where the mandatory minimum fell within the middle of
the ranges, that is, to offense level 24 (51 to 63 months for first offenders) and
offense level 30 (97 to 121 months for first offenders) for 5 and 50-gram crack
offenses, respectively.105 They then provide a similar two level reduction for crack
offenses involving amounts above and beyond those that trigger the mandatory
minimums.106 The amendments, however, make no such changes in the offense
levels to which powder cocaine offenses are assigned. As a consequence, the 100:1
101 U.S.S.G. §2D1.1(c)(1)(November 1, 2006).
102 U.S.S.G. §2D1.1(c), ch.5A (Sentencing Table) (November 1, 2006).
104 “The drug quantity thresholds in the Drug Quantity Table are set so as to provide base
offense levels corresponding to guideline ranges that are above the statutory mandatory
minimum penalties. Accordingly, offenses involving 5 grams or more of crack cocaine were
assigned a base offense level (level 26) corresponding to a sentencing guideline range of
63 to 78 months from a defendant in criminal History Category I (a guideline range that
exceeds the five-year statutory minimum for such offenses by at least three months. . . .”
United States Sentencing Commission, Amendments to the Sentencing Guidelines, p.66
(May 11, 2007)(emphasis in the original); 72 Fed. Reg. 28573 (May 21, 2007).
105 “This amendment modifies the drug quantity thresholds in the Drug Quantity Table so
as to assign, for crack cocaine offenses, base offense levels corresponding to guideline
ranges that include the statutory mandatory minimum penalties. Accordingly, pursuant to
the amendment, 5 grams of cocaine base are assigned a base offense level of 24 (51 to 63
months at Criminal History Category I, which includes the five-year (60 month) statutory
minimum for such offenses). . . .” United States Sentencing Commission, Amendments to the
Sentencing Guidelines, p.66 (May 11, 2007)(emphasis in the original); 72 Fed. Reg. 28573
(May 21, 2007).
ratio has disappeared from the Guidelines (although the statutory 100:1 ratio in the
quantities of powder cocaine and crack cocaine that trigger the mandatory minimum
penalties still remains).107
Retroactivity Decision. In July 2007, the Commission proposed that the
amendment be made retroactively applicable to previously sentenced crack cocaine108109
offenders. After receiving public comment on the issue of retroactivity and
holding public hearings to consider the issue,110 the Commission voted 7-to-0 in favor
of retroactivity on December 11, 2007. While the Commission found “that the
statutory purposes of sentencing are best served by retroactive application of the
amendment,” it emphasized that not all previously sentenced crack cocaine offenders
will automatically receive a reduction in sentence — rather, federal sentencing judges
will have the final authority to make that determination based on the merits of each
case, after considering a variety of factors, including whether public safety would be111
endangered by early release of the prisoner. To allow courts time to prepare for the
motions that will be filed for such sentence reductions, the Commission elected to112
delay the effective date of its decision on retroactivity until March 3, 2008.
109th Congress. On April 6, 2005, three months after the Supreme Court’s
decision in Booker, House Judiciary Committee Chairman Sensenbrenner introduced
H.R. 1528, 109th Congress, first session, entitled “Defending America’s Most113
Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005.”
Section 12 of the bill embodies the view that the Guidelines provide the best cure for
sentencing disparity and that departures only enhance the risk of unwarranted
disparity. It would have essentially forbidden judicial consideration of almost all
mitigating factors as a basis for sentencing below guideline ranges. Section 12 also
proposed procedural restrictions on other remaining grounds for downward departure
107 The existing ratio varies from step to step ranging from 25:1 to 80:1. The cocaine
changes that the amendment made to the Drug Quantity Table are appended below.
108 72 Fed. Reg. 41,794 (July 31, 2007).
109 Opinions were received from a variety of parties, including the judiciary, the executive
branch, interested organizations, members of the defense bar, and individual citizens. These
public comment letters are available at
[http://www.ussc.gov/ pubcom_Retro/PC200711.htm] .
110 A transcript of the public hearing, held by the Commission on November 13, 2007, is
available at [http://www.ussc.gov/hearings/11_13_07/Transcript111307.pdf].
111 U.S. Sentencing Commission, News Release: U.S. Sentencing Commission Votes
Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses, Dec. 11,
113 H.R. 1528, 109th Cong., 1st sess., 151 Cong. Rec. H1845 (2005). On April 12, 2005,
hearings were held on H.R. 1528 by the House Judiciary Committee, Subcommittee on
Crime, Terrorism and Homeland Security.
from the Guidelines, except for departures based on a prosecutor’s motion for an
early plea agreement or substantial assistance in the prosecution of others.
On January 4, 2005, Representative Roscoe Bartlett introduced H.R. 48,
Powder-Crack Cocaine Penalty Equalization Act of 2005,114 to equalize the triggering
quantity for the mandatory minimum sentences for cocaine offenses at the crack
cocaine levels (5 grams of powder cocaine would result in a five-year sentence and
50 grams a 10-year sentence). Currently, it takes 100 times those quantities to trigger
the 5- and 10-year sentences for powder cocaine.
On May 3, 2005, Representative Charles Rangel introduced H.R. 2456, Crack-
Cocaine Equitable Sentencing Act of 2005, to amend the Controlled Substances Act
and the Controlled Substances Import and Export Act. The bill would have
eliminated certain mandatory minimum penalties relating to crack cocaine offenses.
It would have also treated 50 grams of crack the same as 50 grams of other forms of
cocaine; and 5 grams of crack the same as 5 grams of other forms of cocaine.
110th Congress. Congressmen Bartlett and Rangel have reintroduced their
bills as H.R. 79 (Powder-Crack Cocaine Penalty Equalization Act of 2007) and H.R.
Senator Sessions introduced S. 1383 (Drug Sentencing Reform Act of 2007)
which would change the statutory crack-powder cocaine ratio to 20:1 for purposes
of both the 5 and 10-year mandatory minimums (establishing thresholds of 20 grams
(crack)/ 400 grams (powder) and 200 grams (crack)/ 4 kilograms (powder),
respectively). The bill would call for a 2 to 8 offense level increase for any drug
trafficking offense that involves threats, violence, or the use of firearm. It would also
set a ceiling at level 32 for any drug trafficking offense in which the offender had a
minimal role. It would lower the simple possession of crack cocaine mandatory
minimum sentence from five years to one year.
S. 1685 (Fairness in Drug Sentencing Act of 2007),introduced by Senator Hatch,
would raise the crack threshold to 25 grams for the 5-year mandatory minimum, and
250 grams of crack for the 10-year mandatory minimum threshold, resulting in a
statutory crack-powder cocaine ratio of 20:1. The bill also would eliminate the
five-year mandatory minimum for simple possession of crack cocaine. The bill
would also call upon the Sentencing Commission to reexamine the weight given
aggravating factors in drug trafficking cases.
The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, S.
respectively), would eliminate the statutory 100:1 ratio in cocaine cases by raising the
crack cocaine threshold to 500 grams and 5 kilograms for the 5- and 10-year
mandatory minimums, respectively. It would call upon the Sentencing Commission
to reexamine the weight given aggravating and mitigating factors in drug trafficking
cases. It also would eliminate the five-year mandatory minimum for simple
114 H.R. 48, 109th Cong., 1st sess., 151 Cong. Rec. H71 (2005) (Related bill: H.R. 1501, 109th
Cong., 1st sess.).
possession of crack cocaine. In addition, the bill would increase fines for significant
drug trafficking offenses, authorize funding for prison- and jail-based drug treatment
programs, and authorize increased resources for the Departments of Justice, Treasury,
and Homeland Security.
Congressman Bobby Scott introduced H.R. 5035, the Fairness in Cocaine
Sentencing Act of 2008, which would amend the Controlled Substances Act and the
Controlled Substances Import and Export Act. The bill would treat 50 grams of
crack the same as 50 grams of other forms of cocaine; 5 grams of crack the same as
5 grams of other forms of cocaine, and would eliminate mandatory minimum
penalties relating to cocaine offenses. The bill also would reestablish the possibility
of parole for cocaine offenders. Finally, the bill would authorize $10,000,000 for
each fiscal year from 2009 through 2013 for a federal drug court program, and
$50,000,000 for each of those fiscal years for the existing Drug Court Discretionary
Grant Program (42 U.S.C. § 3797u).
H.R. 4842, introduced by Representative Lamar Smith, is concerned solely with
the Sentencing Commission’s decision to make the crack cocaine amendment
retroactive. The bill would provide for only prospective effect of the amendment.
Drug Quantity Table (Before and After Amendment).
Controlled Substance and QuantityBase Offense Level
(1) * * * Level 38
150 KG or more of Cocaine
1.5 4.5 KG or more of Cocaine Base
* * *
(2) * * *Level 36
At least 50 KG but not less than 150 KG of Cocaine
At least 500 G 1.5 G but not less than 1.5 4.5 KG of Cocaine Base
* * *
(3) * * * Level 34
At least 15 KG but not less than 50 KG of Cocaine
At least 150 500 G not less than 500 G 1.5 KG of Cocaine Base
* * *
(4) * * * Level 32
At least 5 KG but not less than 15 KG of Cocaine
At least 50 150 G not less than 150 500 G of Cocaine Base
* * *
(5) * * * Level 30
At least 3.5 KG but not less than 5 KG of Cocaine
At least 35 50 G not less than 50 150 G of Cocaine Base
* * *
(6) * * * Level 28
At least 2 KG but not less than 3.5 KG of Cocaine
At least 20 35 G not less than 35 50 G of Cocaine Base
* * *
(7) * * * Level 26
At least 500 G but not less than 2 KG of Cocaine
At least 5 20 G not less than 20 35 G of Cocaine Base
* * *
(8) * * * Level 24
At least 400 G but not less than 500 G of Cocaine
At least 4 5 G not less than 5 20 G of Cocaine Base
* * *
(9) * * * Level 22
At least 300 G but not less than 400 G of Cocaine
At least 3 4 G not less than 4 5 G of Cocaine Base
* * *
(10) * * * Level 20
At least 200 G but not less than 300 G of Cocaine
At least 2 3 G not less than 3 4 G of Cocaine Base
* * *
(11) * * * Level 18
At least 100 G but not less than 200 G of Cocaine
At least 1 2 G not less than 2 3 G of Cocaine Base
* * *
(12) * * * Level 16
At least 50 G but not less than 100 G of Cocaine
At least 500 MG 1 G not less than 1 2 G of Cocaine Base
* * *
(13) * * * Level 14
At least 25 G but not less than 50 G of Cocaine
At least 250 500 MG not less than 500 MG 1 G of Cocaine Base
* * *
(14) * * * Level 12
At least 25 G of Cocaine
At least 250 500 MG of Cocaine Base
* * *