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No. 07-218

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

LORENZO PICKETT

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
KIRBY HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether, in sentencing a defendant convicted of a crime involving crack cocaine, a district court may re duce a defendant's sentence based on its disagreement with the 100:1 ratio adopted by Congress and imple mented in the Sentencing Guidelines for calculating sentences for crimes involving crack and powder cocaine.

 

In the Supreme Court of the United States

No. 07-218

UNITED STATES OF AMERICA, PETITIONER

v.

LORENZO PICKETT

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a- 21a) is reported at 475 F.3d 1347.

JURISDICTION

The judgment of the court of appeals was entered on February 13, 2007. A petition for rehearing was denied on May 21, 2007 (App., infra, 22a-24a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case concerns whether, in sentencing a defen dant convicted of a crime involving crack cocaine, a district court may reduce a defendant's sentence based on its disagreement with the 100:1 ratio adopted by Con gress and implemented in the Sentencing Guidelines for calculating sentences for crimes involving crack and powder cocaine. On June 11, 2007, the Court granted certiorari in Kimbrough v. United States, No. 06-6330, to consider that question. This petition for a writ of certiorari therefore should be held pending the decision in Kimbrough and then disposed of accordingly.

1. Following a guilty plea in the United States District Court for the District of Columbia, respondent was convicted of distributing more than five grams of crack cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii). Respondent agreed that, for purposes of sentencing, he was accountable for between 50 and 150 grams of crack. In assigning offense levels in the drug quantity table, Section 2D1.1 of the Guidelines treats a gram of crack cocaine as the equivalent of 100 grams of powder cocaine; that treatment reflects Congress's use of the same ratio in determining the quantities of each drug that trigger statutory minimum sentences. Re spondent's Guidelines sentencing range was 121 to 151 months of imprisonment. At sentencing, respondent requested a below-Guidelines sentence on the premise that the disparity in sentences for crimes involving crack and powder cocaine resulting from the 100:1 ratio is unwarranted. The district court declined to rule on respondent's request and sentenced respondent to 121 months of imprisonment, to be followed by four years of supervised release. App., infra, 1a-2a.

2. The court of appeals vacated respondent's sen tence and remanded for resentencing. App., infra, 1a- 21a. It reasoned that, in light of this Court's remedial opinion in United States v. Booker, 543 U.S. 220 (2005), the district court was required to "treat the Guidelines as advisory only and as simply one factor to be con sidered in sentencing." App., infra, 9a. The court of appeals explained that the correct approach, in treating the Guidelines as advisory, is "to evaluate how well the applicable Guideline effectuates the purposes of sentenc ing enumerated in [18 U.S.C.] 3553(a)." App., infra, 13a. The court noted that, "[w]hen it comes to the application of Guideline § 2D1.1 in crack cocaine cases, the [Sen tencing] Commission is one of its severest critics," ibid., and that "[t]he Commission's self-assessment does not rest on the particulars of any one offender," id. at 14a- 15a.

The court of appeals rejected the government's argument that the crack/powder disparity embodied in the Guidelines reflects Congress's policy judgment (as expressed in 21 U.S.C. 841(b), which uses the same ratio in establishing mandatory minimum sentences), and therefore that district courts cannot adopt a different policy under 18 U.S.C. 3553(a) without frustrating Con gress's will. App., infra, 15a-18a. The court reasoned that Congress had not spoken to the relative severity of sentences for the same quantities of crack and powder cocaine except to specify "what the minimum and maxi mum punishment will be." Id. at 17a. Accordingly, the court of appeals concluded, district courts can "consider the problems that arise from applying the Guideline in crack cases." Id. at 17a-18a.

The court of appeals also rejected the government's argument that, if district courts have discretion to vary from the Guidelines range in crack cocaine cases based on such policy determinations, unwarranted sentence disparities could result. App., infra, 18a. The court acknowledged that "sentences after Booker will not be as uniform as sentences before Booker," but concluded that "this is a consequence of the Supreme Court's deci sion to treat the Guidelines as advisory rather than man datory." Ibid.

Judge Rogers concurred. App., infra, 18a-21a. She reasoned that "[t]he plain text of § 3553(a) presents no bar to a district court's consideration of the problems with the ratio that applies to all crack offenders." Id. at 20a. She also believed that a contrary rule would "frus trate the overarching purpose of a sentencing scheme to impose just punishments reflecting the seriousness of an offense" and "be contrary to the sentencing factors that Congress established in § 3553(a)(2)." Ibid.

REASONS FOR GRANTING THE PETITION

The District of Columbia Circuit held that the dis trict court erred by refusing to consider a below-Guide lines sentence for a crime involving crack cocaine based on the defendant's argument that the disparity in sen tences for crimes involving crack and powder cocaine resulting from the 100:1 ratio is unwarranted. On June 11, 2007, the Court granted certiorari in Kimbrough v. United States, No. 06-6330, to determine whether a district court may impose a below-Guidelines sentence for a crime involving crack cocaine based on its dis agreement with that disparity. Because this case pre sents the same question as Kimbrough, and because the merits briefing in Kimbrough is already underway, the petition for a writ of certiorari in this case should be held pending the Court's decision in Kimbrough.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in Kimbrough v. United States, No. 06-6330, and then disposed of accordingly.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
KIRBY HELLER
Attorney

 

 

AUGUST 2007

 

APPENDIX A

 

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 05-3179

UNITED STATES OF AMERICA, APPELLEE

v.

LORENZO PICKETT, APPELLANT

Decided Feb. 13, 2007

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge.

Under one of the United States Sentencing Guide lines it takes 100 times more powder cocaine to get a drug trafficker the same sentence he would receive for dealing crack cocaine. The issue in this appeal is whe ther a judge considering the factors set forth in 18 U.S.C. § 3553(a) may ignore how the 100-to-1 ratio af fects those factors in crack cocaine cases.

I.

In 2002, Lorenzo Pickett pled guilty to distributing more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Pickett agreed that for sentencing purposes he was accountable for more than fifty grams but less than 150 grams of crack. Using the Guidelines, the district court calculated Pickett's sen tencing range as 140 to 175 months, and sentenced him to 158 months. On Pickett's appeal, the government conceded that his criminal history score should have been reduced by three points. Both parties agreed that the correct Guidelines range after this adjustment was 121 to 151 months.

We remanded the case. Before resentencing, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The parties filed new sentencing memoranda. Pickett ar gued that the district court should impose a sentence below the Guidelines range, taking into account the unwarranted disparity between Guideline sentences based on the weight of crack as opposed to powder cocaine.1 The district court declined to rule on the issue because it "has been decided by at least one, and maybe more than one of my colleagues on the bench. . . . So therefore, that issue is going up to the Court of Appeals. And I am not prepared to decide it at this time." The court sentenced Pickett to 121 months, the bottom of the Guidelines range.

II.

A.

Before the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, criminal penalties typically were indeterminate-for instance, five years to life, or not more than twenty years. Within the statutory range, federal judges had discretion to impose whatever term of imprisonment they saw fit. Their judgment could be based on the personal characteristics of the defendant, the nature of the crime, the need to deter others, their sentencing philosophy, and so forth. No rule of law required a sentencing judge to give reasons for a sentence, and appellate review was not available. The time a defendant actually served depended only partly on the sentence. With the United States Parole Commission determining release dates, the typical defendant served only fifty-eight percent of the sentence imposed. U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing xviii (Nov. 2004) ("2004 Report").

"The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity. . . . Evidence that similar offenders convicted of similar offenses received, at times, grossly dissimilar criminal punishment struck a critical nerve among key legislators." Kenneth R. Feinberg, Federal Criminal Sentencing Reform: Con gress and the United States Sentencing Commission, 28 WAKE FOREST L. REV. 291, 295 (1993). To eliminate these disparities and to accomplish the other objectives of sentencing, the Sentencing Reform Act of 1984 charged the Sentencing Commission with the task of promulgating guidelines federal judges would be re quired to apply.

In formulating its first set of guidelines, "the Com mission decided to base guideline ranges on the existing average time served," as revealed in a study the Com mission conducted. 2004 Report at 47. The Commission had begun work on a guideline for drug trafficking offenses when Congress passed the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, of which 21 U.S.C. § 841 was a part. In § 841, Congress specified mandatory minimum sentences for a wide range of drug trafficking offenses, each triggered by the weight of the "mixture or substance containing a detectable amount" of the particular drug. 21 U.S.C. § 841(b).

The 1986 Act created a problem for the Commission. As is well understood, mandatory minimum sentencing statutes are inconsistent with the objectives of the Guidelines to provide "a substantial degree of indi vidualization in determining the appropriate sentencing range" and to impose "graduated, proportional increases in sentence severity for additional misconduct or prior convictions." U.S. Sentencing Comm'n, Mandatory Min imum Penalties in the Federal Criminal Justice System 25 (Aug. 1991). "The application of lengthy penalties to all persons based solely on whether they fit the sta tute-defined criteria (drug type and amount) results in a problem that is common to all mandatory minimum statutes-unwarranted uniformity." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 166-68 (Feb. 1995) ("1995 Report"); see also Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 847-48 (1992). Whether in passing the 1986 Act Congress considered these problems, and others, is unknown and unknowable. In the Com mission's view, the purpose of the Act was "to establish a two-tiered penalty structure for most drugs," with a five-year mandatory minimum for managers of retail trade and a ten-year minimum for heads of organiza tions and wholesalers. 2004 Report at 48; 1995 Report at 118.

The drug trafficking guideline the Commission ultimately promulgated did not follow this two-tiered approach. Instead, it extended the § 841 drug "quan tity-based approach across 17 different levels [of quan tity] falling below, between, and above the two amounts specified" in the statute as triggers for mandatory minimum sentences. 2004 Report at 49. For example, defendants receive a base offense level of thirty-two for dealing at least 1,000 but less than 3,000 grams of her oin, or at least 500 grams but less than 1,500 grams of methamphetamine, or at least 5,000 but less than 15,000 grams of powder cocaine, or-as in Pickett's case-at least fifty but less than 150 grams of crack cocaine. U.S.S.G. § 2D1.1(c)(4) (Drug Quantity Table). Put another way, for purposes of sentencing, 1,000 grams of heroin equals fifty grams of crack cocaine equals 5,000 grams of powder cocaine.

At the time it issued this Guideline the Commission did not explain why it decided to extend the 1986 Act's "quantity-based approach in this way." 2004 Report at 49. But it soon became clear that with respect to co caine, the Guideline's use of the 100-to-1 ratio between powder and crack cocaine raised significant problems. See id. at 50. As a result of the Guideline, "the senten cing guideline range (based solely on drug quantity) is three to over six times longer for crack cocaine off enders than powder cocaine offenders with equivalent drug quantities, depending on the exact quantity of the drug involved." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 11 (May 2002) ("2002 Report"). With respect to all drug trafficking off enses, the emphasis on drug quantity distorted the im portance of that element as compared with other offense characteristics. 2004 Report at 50. With respect to co caine, the Commission concluded that although powder cocaine, which is usually snorted, was less addictive than crack cocaine, which is smoked, see United States v. Brisbane, 367 F.3d 910, 911 (D.C. Cir. 2004), this dif ference could not account for the 100-to-1 ratio. All forms of cocaine are addictive. The "current penalty structure-which yields a five-year mandatory minimum sentence for ten to fifty doses of crack cocaine compared to 2,500 to 5,000 doses of powder cocaine-greatly over states the relative harmfulness of crack cocaine."2 2002 Report at 93.

For these and other reasons we will mention later, the Commission issued a report in 1995 criticizing the ratio. Later that year the Commission proposed to Con gress an amendment to the Guidelines eliminating the differential treatment of crack and powder cocaine. See 60 Fed. Reg. 25,074 (May 10, 1995). Pursuant to 28 U.S.C. § 994(p), Congress rejected the Commission's proposal and directed it to study the matter further. See Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995). The Commission did so and sent another report to Congress in 1997, this time recommending an amendment to the mandatory minimum statute, 21 U.S.C. § 841: "the curr ent 500-gram trigger for the five-year mandatory min imum sentence [for powder cocaine] should be reduced to a level between 125 and 375 grams, and for crack cocaine, the five-gram trigger should be increased to between 25 and 75 grams." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 9 (Apr. 1997). Congress did not amend § 841 in response. In 2002 the Commission issued an even more extensive report setting forth in detail the defects in the current system for sentencing cocaine trafficking offenders and recommending an amendment to § 841 incorporating a 20-to-1 ratio between powder and crack cocaine. 2002 Report at A1-A10. Again Congress did not act on the recommendation. The Commission's 2004 report on fifteen years of sentencing under the Guidelines also advocated altering the 100-to-1 ratio, see 2004 Report at 132, but Congress took no action.

B.

If matters stood as they were in 2004, we would have no choice but to reject Pickett's claim. We held in United States v. Anderson, 82 F.3d 436 (D.C. Cir. 1996)-over Judge Wald's dissent-that the problems caused by the 100-to-1 ratio did not justify a sentencing judge in departing from the Guidelines. The Guidelines were then mandatory and the Sentencing Commission's criticism of its own product in its 1995 report to Con gress did not render the Guidelines any less so.

In light of Booker, Anderson is no longer controlling. On the merits, a 5-4 majority in Booker held that the Guidelines violated the Sixth Amendment because they required judges to make factual findings that had the effect of lengthening sentences beyond what the ju ry-found facts would support. 543 U.S. at 244, 125 S. Ct. 738. As a remedy for this constitutional violation, a different 5-4 majority gave sentencing judges even more discretion. Before Booker, judges made factual findings and were required to adhere to the Guidelines in deter mining sentences; after Booker, judges continue to make findings but must treat the Guidelines as "effectively advisory." Id. at 245, 125 S. Ct. 738; see Cunningham v. California, - U.S. -, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007); Michael W. McConnell, The Booker Mess, 83 Denver U.L. Rev. 665, 677 (2006).

If we looked only to the Booker merits opinion, Pick ett would have no case. The merits majority held that defendants in his situation have not suffered a Sixth Amendment violation. In his plea agreement, Pickett admitted possessing with intent to distribute more than fifty grams but less than 150 grams of crack cocaine. Under the Guidelines, his base offense level was therefore thirty-two. See U.S.S.G. § 2D1.1(c)(4). From this and in light of his criminal history and acceptance of responsibility, the district court calculated his Guideline range and sentenced him at the bottom end of the range. A defendant like Pickett, who admits each fact needed to support his sentence, has not been deprived of his right to a jury trial. See Booker, 543 U.S. at 244, 125 S. Ct. 738. As the Court put it in Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), if "a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant . . . stipulates to the relevant facts," which is what Pickett did.

Even though Pickett suffered no loss of a constitu tional right, Booker gave him a remedy. The Court's remedial opinion required the district court to treat the Guidelines as advisory only and as simply one factor to be considered in sentencing. Our role under Booker is to determine whether the sentence the court ordered was "unreasonable." 543 U.S. at 261, 125 S. Ct. 738. We have held that a sentence resting on a legal error is un reasonable, if the error was not harmless.3 See United States v. Price, 409 F.3d 436, 442 (D.C. Cir. 2005). The question in this appeal is therefore whether the district court committed a legal error when it declined to con sider the 100-to-1 ratio perpetuated in § 2D1.1 of the Guidelines and the problems it raises in sentencing crack cocaine dealers like Pickett.

Under Booker, a sentencing court in any one case will be considering many of the same factors the Sentencing Commission took into account in formulating the Guide lines for all cases. For instance, when the Commission promulgated the Guidelines it had to "meet" the broad sentencing purposes set forth in 18 U.S.C. § 3553(a)(2). See 28 U.S.C. §§ 991(b)(1)(A), 994(g). Under Booker, district courts must also "take account of" the same pur poses, 543 U.S. at 259, 125 S. Ct. 738, which the Court has described as "broad" and "open-ended," Koon v. United States, 518 U.S. 81, 108, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996).4 One, but only one, of the factors sen tencing courts must also consider is the sentencing range under the Guidelines, 18 U.S.C. § 3553(a)(4)(A). After Booker, 543 U.S. at 254, 125 S. Ct. 738, a court is "no longer . . . tied to the sentencing range indicated in the Guidelines," Cunningham, - U.S. -, -, 127 S. Ct. 856, 866, 166 L. Ed. 2d 856. The relevant factors in § 3553(a) are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(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 edu cational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for-

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regard less of whether such amendments have yet to be incorporated by the Sentencing Comm ission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or su pervised release, the applicable guidelines or pol icy statements issued by the Sentencing Comm ission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any a mendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incor porated by the Sentencing Commission into a mendments issued under section 994(p) of title 28);

(5) any pertinent policy statement-

(A) issued by the Sentencing Commission pur suant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (re gardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence dispar- ities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

While Booker and § 3553(a) instruct sentence- ing courts to consider all these "multiple and vague" factors, United States v. Johnson, 471 F. 3d 764, 764 (7th Cir. 2006), neither the Supreme Court nor the statute assigns any weight or ranking to the factors. So how is a court to determine how much influence the factor we are concerned with-the advisory-only Guideline range-should have in sentencing a particular defendant? One might answer that the Guideline range should be considered presumptively reasonable. But that would be to confuse the standard this court and several others have adopted for appellate review5 with the standard to be applied by the sentencing court. A sentencing judge cannot simply presume that a Guidelines sentence is the correct sentence. To do so would be to take a large step in the direction of returning to the pre-Booker regime. See United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006); United States v. Brown, 450 F.3d 76, 81-82 (1st Cir. 2006); United States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). Another approach, the correct one in our view, is to evaluate how well the applicable Guideline effectuates the purposes of sentencing enumerated in § 3553(a).

When it comes to the application of Guideline § 2D1.1 in crack cocaine cases, the Commission is one of its severest critics. For more than a dozen years, it has strongly recommended against retaining the 100-to-1 ratio. In its 2002 Report the Commission put the matter bluntly: "the Commission firmly and unanimously be lieves that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objec tives" in § 3553(a). 2002 Report at 91. The reasons are several. For one thing, "[c]rack's unique distribution pattern, in combination with the 100-to-1 quantity ratio, can lead to anomalous results in which retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced." 1995 Report at 174. Although crack is more addictive than powder cocaine, the 100-to-1 ratio "greatly overstates the relative harmfulness of crack cocaine." 2002 Report at 93. Also, the "fact that a significant proportion of federal crack cocaine offenders are responsible for relatively small drug quantities is troublesome because they receive especially disparate penalties in comparison to similar powder cocaine offenders." Id. at 98.

The disparities are not only between crack and powd er cocaine dealers. In the Commission's opinion § 2D1.1 of the Guidelines is also a failure in distinguishing a mong crack offenders. The Guideline treats "all crack cocaine offenders as if they committed [harmful conduct such as violence], even though most crack cocaine of fenders in fact had not." Id. at vii. In addition to serving "no clear purpose," § 2D1.1's use of the 100-to-1 ratio and its quantity-based approach threatens "public confidence in the federal courts" because it has had a disproportionate impact on African-American offenders, who in 2002 made up eighty-one percent of those sentenced for trafficking crack. 2004 Report at 131, 135. Although the Guidelines were meant to promote uniformity in sentencing, not to increase the length of sentences, § 2D1.1 also "had the effect of increasing prison terms far above what had been typical in past practice . . . . " Id. at 49.

In terms of the sentencing factors of § 3553(a), the Commission thus believes that its Guideline for crack distributors generates sentences that are "greater than necessary," exaggerates "the seriousness of the offense" of crack trafficking, does not "promote respect for the law," and does not "provide just punishment for the offense." 18 U.S.C. § 3553(a), (a)(2)(A). The Com mission's self-assessment does not rest on the par ticulars of any one offender. The sentencing factors just mentioned, as well as § 3553(a)(2)(B), which deals with deterrence in general, and § 3553(a)(6), which deals with "unwarranted sentence disparities," are not entirely confined to the individual characteristics of the partic ular defendant. See United States v. Simpson, 430 F. 3d 1177, 1186 (D.C. Cir. 2005). It therefore seems to us beyond doubt that the district court erred in refusing to evaluate whether sentencing Pickett in accordance with Guideline § 2D1.1, and its 100-to-1 ratio, would effectu ate the purposes of sentencing set forth in § 3553(a).

The government has a counter-argument. It is this: § 2D1.1 of the Guidelines is required by 18 U.S.C. § 841(b), the provision setting the mandatory minimum sentences for crack and powder cocaine (and many other illicit drugs). Actually, we put the argument too strong ly. The government's position is more subtle than a direct assertion that Congress required the Commission to formulate the Guideline as it did. The government tells us first that allowing district courts to examine or consider or take into account the untoward results of the 100-to-1 ratio in the Guideline would frustrate "the will of Congress." Br. for Appellee 35. Second, whatever the Commission may believe, Congress has not approved the Commission's views. Id. at 36-37. Third, the Guide line "reflect[s] a congressional policy choice that traf ficking in crack cocaine should be punished more severe ly than trafficking in powder cocaine." Id. at 37. And fourth, judges have no business making "policy choi ce[s]," which are for the legislature. Id. at 39.

We will take up each of these points in the same or der. As to frustrating the will of Congress, the Sen tencing Commission does not believe that and neither do we. In the case of a crack dealer who pleads guilty to distributing more than fifty grams of crack, Congress's will is that his sentence should be between ten years' and life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). Congress has set statutory minimums and maximums. As to where within that range a particular defendant's sentence should fall, § 841(b) is silent. Over the years, the Commission itself has recognized that it was unclear what Congress intended with respect to sentencing within the ranges set in § 841(b). See, e.g., 2004 Report at 49; 2002 Report at 90. It may be logical to suppose that, given the structure of § 841, the greater the weight of the mixture containing the drug, the greater the sen tence should be. But at least with respect to cocaine of fenses, that approach entails the adverse consequences mentioned above. Other approaches were possible, such as having the sentence depend on whether the dealer was a retailer or wholesaler.

The government is right that Congress has not ap proved the Commission's reports on the problems caused by using the 100-to-1 ratio in the Guideline. But we do not understand why this matters. As far as the intent of Congress is concerned, it is the intent of the 1986 Congress, which enacted the mandatory minimums for crack and powder cocaine, that controls. The intent of later Congresses that failed to act on Commission recommendations is of no moment.6 But it remains of great importance that, in its recommendations, the Com mission candidly and forthrightly exposed the weak nesses and failings of its Guideline with respect to crack cocaine sentencing.

True enough, the mandatory minimums reflect a con gressional policy choice that crack cocaine offenses should be punished more severely than powder cocaine offenses involving the same weight of drugs. But this entirely evades the question. How much more severely? That point, made in each of the Commission's reports we have cited, is the critical consideration about which Con gress has had nothing to say, except what the minimum and maximum punishment will be.

Judges have no business making "policy" choices, so the government tells us. What is the "policy" choice the government has in mind? It cites cases in which courts of appeals have rejected attempts by district judges to adopt and apply a ratio different from the current 100-to-1. See, e.g., United States v. Spears, 469 F.3d 1166, 1178 (8th Cir. 2006) (en banc); United States v. Pope, 461 F.3d 1331, 1335-37 (11th Cir. 2006); United States v. Castillo, 460 F.3d 337, 357-60 (2d Cir. 2006); United States v. Jointer, 457 F.3d 682, 686-87 (7th Cir. 2006); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006); United States v. Pho, 433 F.3d 53, 62-63 (1st Cir. 2006). But we do not have such a case before us. Instead we have a case in which a district judge refused to consider the problems that arise from applying the Guideline in crack cases. In that respect our case is very close to United States v. Gunter, which held that the Guideline with respect to crack cocaine is not mandatory and that a sentencing court "errs when it believes that it has no discretion to consider the crack/powder dif ferential incorporated in the Guidelines-but not de manded by 21 U.S.C. § 841(b) . . . . " 462 F.3d 237, 249 (3d Cir. 2006).

The government also argues that if district judges have discretion to vary from the Guidelines range in crack cases, the result may be "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6). That sentences after Booker will not be as uniform as sentences before Booker is doubtless true, but this is a consequence of the Supreme Court's deci sion to treat the Guidelines as advisory rather than man datory. As we have mentioned, the Commission con cluded that disparities existed before Booker-dis parities between powder and crack traffickers and among crack dealers. The Supreme Court's giving district courts discretion may or may not ameliorate those disparities and may or may not create new ones. Whether these would be "unwarranted" disparities we cannot say at this point. It is enough that under Booker and § 3553(a), the district court erred in Pickett's case. His sentence therefore must be vacated and the case remanded for resentencing consistent with this opinion.

So ordered.

ROGERS, Circuit Judge, concurring.

It has taken many years, but the court finally has concluded that it is authorized to hold, and does hold, that a district court, in sentencing a defendant, may properly take into account the fact that the 100-to-1 ratio embedded in the Sentencing Guidelines for crack-to-powdered cocaine offenses bears no meaningful relationship to a defendant's culpability.

As early as 1995, the Sentencing Commission issued a Special Report stating that the ratio was unfair and produced extreme sentencing anomalies, thereby failing to accomplish the purposes set forth in the Sentencing Reform Act, 18 U.S.C. § 3553(a).7 In 1996, when the Guidelines were mandatory, Judge Wald explained why the 100-to-1 ratio, which the Commission itself had identified as a source of unfairness and unnecessarily high sentences under § 3553(a),8 established grounds for a departure from the crack/cocaine Guideline. United States v. Anderson, 82 F.3d 436, 445-50 (D.C. Cir. 1996) (Wald, J., dissenting). The Sentencing Commission con tinued to document the unfairness and irrationality of the ratio in its 2002 and 2004 reports, repeating that the crack/cocaine Guideline does not adequately reflect the relative culpability of crack offenders.9

Absent en banc review, Anderson remained binding on panels of this court. See LaShawn v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc). In United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), however, the Supreme Court held that the mandatory Guidelines violated a defendant's rights under the Sixth Amendment and that, as a remedy, the Guidelines scheme could be treated as advisory only. In the wake of Booker, the court today holds that under an advisory Guidelines scheme, a district court, in sen tencing a defendant, may take into account when consid ering the sentencing factors of 18 U.S.C. § 3553(a) that the 100-to-1 ratio in § 2D1.1 bears no meaningful rela tionship to a defendant's culpability. The plain text of § 3553(a) presents no bar to a district court's considera tion of the problems with the ratio that applies to all crack offenders, see Op. at 1352 n.4, and were the court to reach any other conclusion it would frustrate the overarching purpose of a sentencing scheme to impose just punishments reflecting the seriousness of an offense and be contrary to the sentencing factors that Congress established in § 3553(a)(2).10

As to Pickett's challenge to the ratio on equal pro tection grounds, this court has previously rejected it. See United States v. Holton, 116 F.3d 1536, 1548 (D.C. Cir. 1997); United States v. Johnson, 40 F.3d 436, 440 (D.C. Cir. 1994), cert. denied, 514 U.S. 1041, 115 S. Ct. 1412, 131 L. Ed. 2d 297 (1996). Absent en banc review, the court is bound by its precedent. See LaShawn, 87 F.3d at 1395.

Accordingly, for these reasons, I concur in holding that the district court erred when, in sentencing Pickett, it declined to consider the problems that arise in applying the 100-to-1 ratio in Guideline § 2D1.1 to crack cases under the advisory Guidelines scheme, and that his sentence must be vacated and the case remanded to the district court for resentencing.

1 Pickett also contended, as he does on appeal, that Congress engaged in unconstitutional discrimination in passing the "Disapproval Act," Pub. L. No. 104-38, § 1, 109 Stat. 334 (Oct. 30, 1995), which re jected the Sentencing Commission's proposed amendment to eliminate the crack/powder cocaine disparity. His arguments are similar to those the defendant made in United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994), and we reject them again. Now, as then, "scattered pieces of legislative history are quite inadequate to serve to attribute a discrimi natory purpose to the Congress." Id. at 440. Just as Congress had race-neutral reasons for adopting a 100-to-1 ratio in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, see Johnson, 40 F.3d at 441, it had race-neutral reasons for declining to adopt the 1-to-1 ratio the Sentencing Commission proposed.

2 In 1995 the average retail price for five grams of crack, which yiel ded ten to fifty doses, was in the range of $225 to $750; the average retail price for 500 grams of powder cocaine, which yielded 2,500 to 5,000 doses, was in the range of $32,500-$50,000, 1995 Report at 175.

3 At the end of the Booker remedial opinion, the Court stated that "in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine." 543 U.S. at 268, 125 S. Ct. 738.

4 With the possible exception of § 3553(a)(2)(C) & (D), the broadly stated purposes of sentencing set forth in § 3553(a)(2) are not confined to any particular defendant's situation. The Commission in fact took those § 3553(a)(2) purposes into account in formulating the Guidelines. See U.S.S.G. ch. 4, pt. A, intro. cmt.; U.S. SENTENCING COMM'N, PRIN CIPLES GOVERNING THE REDRAFTING OF THE PRELIMINARY GUIDE LINES (Dec. 1986) ("The Guidelines seek to insure that all sentences imposed will fulfill the purposes of sentencing mandated by Con gress."), reprinted in Stephen Breyer, The Federal Sentencing Guide lines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1,47 (1988). The Commission took the § 3553(a)(2) factors into account because the Sentencing Reform Act required it to do so. See 28 U.S.C. §§ 991(b)(1)(A), 994(g). But see United States v. Castillo, 460 F. 3d 337, 355-56 (2d Cir. 2006).

5 See United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006); United States v. Kristl, 437 F. 3d 1050, 1054 (10th Cir. 2006); United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005); see also United States v. Rita, 177 Fed. Appx. 357 (4th Cir. 2006), cert. granted, - U.S. -, 127 S. Ct. 551, 166 L. Ed. 2d 406 (2006); United States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006), cert. granted, - U.S. -, 127 S. Ct. 551, 166 L. Ed. 2d 406 (2006).

6 One cannot treat the Guideline as a manifestation of congressional intent merely because the 1987 Congress did not object to it pursuant to 28 U.S.C. § 994(p). Cf. INS v. Chadha, 462 U.S. 919, 975 n.11, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533-34, 102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982). Congress did take such action when it rejected the Commission's proposed Guideline amendment in 1995 to reflect a 1-to-1 ratio between crack and powder cocaine. See § 1, 109 Stat. at 334. But in doing so Congress directed the Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine." Id. § 2(a)(2), 109 Stat. at 334.

7 United States Sentencing Commission, Special Report to the Con gress: Cocaine and Federal Sentencing Policy (1995).

8 Special Report at xii-xiii, xiv.

9 United States Sentencing Commission, Report to Congress: Co caine and Federal Sentencing Guidelines at v-ix (2002); United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform at xv-xvi, 113-114, 131-132, 141 (2004).

10 See Booker, 543 U.S. at 264-65, 125 S. Ct. 738; Fifteen Years at iv-v.

APPENDIX B

 

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2006 01cr00181-01

No. 05-3179

UNITED STATES OF AMERICA, APPELLEE

v.

LORENZO PICKETT, APPELLANT

Filed: May 21, 2007 [1041718]

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges

ORDER

Upon consideration of appellee's petition for rehear ing filed April 30, 2007, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY:
Michael C. McGrail
Deputy Clerk

APPENDIX C

 

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2006 01cr00181-01

No. 05-3179

UNITED STATES OF AMERICA, APPELLEE

v.

LORENZO PICKETT, APPELLANT

Filed: May 21, 2007 [1041716]

Before: GINSBURG, Chief Judge, and SENTELLE, HEN DERSON, RANDOLPH, ROGERS, TATEL, GAR LAND, BROWN, GRIFFITH, and KAVANAUGH, Circuit Judges

ORDER

Upon consideration of appellee's petition for re hearing en banc, and the absence of a request by any member of the court for a vote, it is

ORDERED that the petition be denied.

 

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk
BY:

Michael C. McGrail
Deputy Clerk