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No. 06-6330

 

In the Supreme Court of the United States

DERRICK KIMBROUGH, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

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
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether, in sentencing a defendant convicted of traf ficking crack cocaine, a district court may reduce the defendant's sentence based on its disagreement with the 100:1 ratio adopted by Congress and implemented in the Sentencing Guidelines for calculating sentences for traf ficking crack and powder cocaine.

 

 

 

 

In the Supreme Court of the United States

No. 06-6330

DERRICK KIMBROUGH, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 96-98) is not published in the Federal Reporter, but is reprinted at 174 Fed. Appx. 798.

JURISDICTION

The judgment of the court of appeals (J.A. 99) was entered on May 9, 2006. A petition for rehearing was denied on June 6, 2006 (J.A. 100). The petition for a writ of certiorari was filed on September 5, 2006 (a Tuesday following a holiday), and was granted on June 11, 2007. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are reprinted in an appendix to this brief. App., infra, 1a-52a.

STATEMENT

Following a guilty plea in the United States District Court for the Eastern District of Virginia, petitioner was convicted of conspiring to distribute cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A)(iii) and (b)(1)(C), and 846; possessing 50 grams or more of cocaine base with intent to distrib ute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii); possessing cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c). Although petitioner's range on the drug counts under the United States Sen tencing Guidelines (Sentencing Guidelines or Guide lines) was 168 to 210 months of imprisonment, the dis trict court imposed the statutory minimum sentence of 120 months on the crack-cocaine counts, in part based on its disagreement with the disparity in sentences for traf ficking crack and powder cocaine. The court sentenced petitioner to a total of 180 months of imprisonment, to be followed by five years of supervised release. The court of appeals vacated the sentence and remanded for resentencing. J.A. 96-98.

A. Background

1. In 1970, Congress passed the Controlled Sub stances Act (CSA), 21 U.S.C. 801 et seq., which repealed most prior drug laws and established a comprehensive federal scheme to regulate the market in drugs gener ally, including cocaine. See Gonzales v. Raich, 545 U.S. 1, 10-14 (2005). The CSA classified drugs by schedules, according to their effects and potential for abuse; co caine was classified as a Schedule II drug. As originally enacted, the CSA established penalties for illegal drug trafficking that were generally based on the type (but not the quantity) of drugs involved. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, §§ 201-202, 401, 84 Stat. 1245-1252, 1260- 1262. In 1984, Congress modified the CSA's penalty structure to add drug quantity as a factor; Congress did so by establishing quantities of specific drugs that would trigger enhanced penalties. For cocaine, the triggering quantity was one kilogram, which increased the maxi mum sentence from 15 to 20 years of imprisonment. See Controlled Substances Penalties Amendments Act of 1984, Pub. L. No. 98-473, Tit. II, Ch. V, 98 Stat. 2068 (21 U.S.C. 841(b)(1) (Supp. II 1984)).

2. By the early 1980s, the principal form of illegal cocaine in the United States was powder cocaine, which is produced by dissolving coca paste in hydrochloric acid and water. Users typically consume powder cocaine by snorting it through the nose. In the 1980s, however, another form of cocaine, crack cocaine, became increas ingly common. Crack cocaine is usually produced by boiling powder cocaine in a solution of sodium bicarbon ate and water, resulting in a solid "rock" of purer co caine. Users typically consume crack cocaine by smok ing it; because smoking ordinarily produces more imme diate (and intense) effects than snorting, crack is thought to present a higher risk of addiction and per sonal deterioration than powder. See United States Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy 62-67 (2007) (2007 Report) <www.ussc.gov/r_congress/cocaine2007.pdf>; United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Pol icy 9-14 (1995) (1995 Report) <www.ussc.gov/crack/ exec.htm>.

In 1986, Congress passed the Anti-Drug Abuse Act (1986 Act), Pub. L. No. 99-570, 100 Stat. 3207. The 1986 Act substantially increased the penalties for the traffick ing of controlled substances and, as is relevant here, es tablished a three-tier penalty system for certain drugs, based on the quantity of the distributed substance. At the lowest quantity for each drug, the Act establishes a maximum sentence of 20 years of imprisonment for a first-time offender. See 21 U.S.C. 841(b)(1)(C). Once the amount of the drug reaches a designated threshold, the Act establishes a minimum sentence of five years and a maximum of 40 years. See 21 U.S.C. 841(b)(1)(B). And once the amount of the drug reaches a second threshold (which is set at ten times the first threshold), the Act establishes a minimum sentence of ten years and a maximum of life. See 21 U.S.C. 841(b)(1)(A). The Act specifies different threshold quantities for vari ous drugs. See 21 U.S.C. 841(b)(1)(A)(i)-(viii) and (b)(1)(B)(i)-(viii).

In the 1986 Act, Congress distinguished for the first time between trafficking crimes involving crack and powder cocaine, and determined that crimes involving crack should be subject to considerably more severe penalties. See 21 U.S.C. 841(b)(1)(A)(ii)-(iii) and (b)(1)(B)(ii)-(iii). As the United States Sentencing Com mission (Sentencing Commission or Commission) has explained, the legislative history of the 1986 Act indi cates that Congress believed that crack cocaine was at the forefront of the national drug epidemic. In addition, the legislative history reflects that Congress concluded that crack cocaine was more dangerous than powder cocaine, on the grounds that (1) crack was extremely addictive (and more addictive than powder); (2) crack was more closely correlated with the commission of other serious crimes; (3) crack had particularly serious physical effects; (4) crack was particularly likely to be used by young people; and (5) the use of crack was par ticularly likely to expand, in light of its potency, cost, and ease of distribution and use. See United States Sen tencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy 9-10 (2002) (2002 Re port)<www.ussc.gov/r_congress/02crack/2002crackrpt. pdf>; 1995 Report 116-118.

Accordingly, in establishing the three-tier penalty system, the 1986 Act used different quantities for "co caine" (i.e., powder cocaine) and "cocaine base" (e.g., crack cocaine) to establish enhanced sentences.1 In set ting the quantities of each type of cocaine required to trigger higher sentencing ranges, the Act used a 100:1 ratio of powder to crack cocaine: thus, the first thresh old (for a sentence of five to 40 years) was set at 500 grams of powder but 5 grams of crack, see 21 U.S.C. 841(b)(1)(B)(ii)-(iii), and the second threshold (for a sen tence of ten years to life) was set at 5 kilograms of pow der but 50 grams of crack, see 21 U.S.C. 841(b)(1)(A)(ii)- (iii). In adopting the 100:1 ratio, Congress considered but rejected bills that used lower ratios, including 50:1 and 20:1. See 2002 Report 7-8; 1995 Report 117; United States v. Castillo, 460 F.3d 337, 345 (2d Cir. 2006). As further evidence of its particular concern with crack cocaine, Congress subsequently enacted a provision im posing a minimum penalty (of five years of imprison ment) for simple possession of crack, even for first-time offenders-the only provision of its kind. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (21 U.S.C. 844(a)); 2002 Report 11; 1995 Report 123-125.

In 1987, the Sentencing Commission issued the initial version of the Sentencing Guidelines. See 52 Fed. Reg. 18,046. For drug-trafficking offenses, the Commission adopted sentencing ranges that would be consistent with the statutory minimum sentences mandated by Con gress. See Guidelines § 2D1.1. Specifically, the Com mission used the quantities of crack cocaine (and other specified drugs) that triggered the five- and ten-year minimum sentences as "reference points," and estab lished offense levels for those quantities that (absent adjustments or a criminal history) would lead to sen tences at or just above the statutory minimums. 1995 Report 126. Finding that "further refinement of drug amounts [was] essential to provide a logical sentencing structure for drug offenses," however, the Commission established graduated offense levels, whereby the of fense level would increase (or decrease) in two-level in crements as the amount of each drug increased (or de creased) from the threshold amounts. Guidelines § 2D1.1, comment. (backg'd). These additional base of fense levels were "proportional to the levels established by statute." Ibid.; see id. at comment. (n.10) ("The Com mission has used the sentences provided in, and equiva lences derived from, the statute (21 U.S.C. § 841(b)(1)) as the primary basis for the guideline sentences."). With specific regard to crack cocaine, the consequence of this approach was to incorporate into the Guidelines the 100:1 powder-to-crack ratio that Congress used in adopting the statutory sentencing ranges. For example, while distribution of 5 grams of crack cocaine (or 500 grams of powder cocaine) would lead to a statutory mini mum sentence of 60 months, and distribution of 50 grams of crack (or 5 kilograms of powder) would lead to a statutory minimum of 120 months, distribution of 20 grams of crack (or 2 kilograms of powder) would gener ate a base offense level of 28, which (absent adjustments or a criminal history) would lead to a Guidelines range of 78 to 97 months. See Guidelines § 2D1.1(c)(6); id. Ch. 5, Pt. A (sentencing table).

3. In 1995, the Sentencing Commission issued a re port in which it concluded that "the 100-to-1 quantity ratio that presently drives sentencing policy for cocaine trafficking offenses should be re-examined and revised." 1995 Report 197. Shortly thereafter, the Commission, by a 4-3 vote, submitted a proposed amendment to the Guidelines that would have replaced the 100:1 ratio with a 1:1 ratio (and therefore imposed the same penalties on otherwise identical crimes involving crack and powder cocaine). See 60 Fed. Reg. 25,075-25,077 (1995); Castil- lo, 460 F.3d at 346-347.

For the first time in the history of the Guidelines, Congress exercised its authority to reject the proposed amendment. See Act of Oct. 30, 1995, Pub. L. No. 104- 38, 109 Stat. 334. Congress explained that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for traf ficking in a like quantity of powder cocaine." § 2(a)(1) (A), 109 Stat. 334. At the same time, however, Congress directed the Sentencing Commission to "submit to Con gress recommendations (and an explanation therefor), regarding changes to the statutes and sentencing guide lines governing sentences for * * * trafficking of co caine." § 2(a)(1), 109 Stat. 334. Congress specifically provided that the Commission "shall propose revision of the drug quantity ratio of crack cocaine to powder co caine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in [18 U.S.C. 3553(a)]." § 2(a)(2), 109 Stat. 335.

In the legislative history, Congress emphasized that the evidence continued to support the view that longer sentences were appropriate for crack-cocaine offenses. See, e.g., H.R. Rep. No. 272, 104th Cong., 1st Sess. 3-4 (1995). Notably, Congress also expressed concern that the Sentencing Commission's proposed amendment would conflict with the sentencing structure it had im posed in the 1986 Act. Specifically, the House Report explained that, "if the Commission's guidelines amend ments went into effect without Congress lowering the current statutory mandatory minimum penalties, it would create gross sentencing disparities," because "[s]entences just below the statutory minimum would be drastically reduced, but mandatory minimums would remain much higher." Id. at 4. As a result, the pro posed amendment would "establish penalties for crimes that stand in sharp contrast with [the] statutory manda tory minimum penalties." Ibid. The principal sponsors of the statute expressed the same concern, and also indi cated that any significant change in sentencing for crack-cocaine offenses would require legislative action. See, e.g., 141 Cong. Rec. 25,324 (1995) (statement of Sen. Abraham) (noting that "[t]he Commission's proposed changes are incompatible with the statutory mandatory minimum sentences that Congress has established," and that, "[r]ather than adjusting its guidelines to conform with congressional directives, * * * the Commission has instead elected to change the guidelines and ask Congress that it adjust the laws to accommodate the Commission's views"); id. at 27,202-27,203 (statement of Sen. Abraham) (noting that the statute "does not re quest the Commission to send new Guidelines changes" but "[r]ather * * * requests the Commission's recom mendations for how the laws and guidelines should be changed"); id. at 27,203 (statement of Sen. Abraham) (explaining that "major changes in this area have to come from Congress, and until such changes are made the guidelines should conform with existing law"); id. at 28,359 (statement of Rep. McCollum) (contending that "[t]he Commission is to follow Congress' lead as Con gress-not the Sentencing Commission-sets sentencing policy").

4. Since 1995, Congress has taken no action to alter the 100:1 ratio it adopted in the 1986 Act. In 1997, the Sentencing Commission, responding to Congress's rejec tion of its proposed amendment to the Guidelines, rec ommended that Congress "revise the federal statutory penalty scheme for both crack and powder cocaine of fenses" by adopting a 5:1 ratio (and decreasing the quantity of powder cocaine necessary to trigger the stat utory minimums). See United States Sentencing Com mission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 9 (1997) (1997 Report) <www.ussc.gov/r_congress/newcrack.pdf>. The Com mission did not propose a conforming amendment to the Sentencing Guidelines. In 2002, the Commission recom mended that Congress adopt no higher than a 20:1 ratio (this time maintaining the quantity of powder cocaine necessary to trigger the statutory minimums). See 2002 Report 92. The Commission also recommended "using specific sentencing enhancements to target the minority of offenders who engage in the most harmful conduct that concerned Congress in 1986." Id. at 91-92. The Commission again did not formally propose an amend ment to the Guidelines, but did include model revised guidelines in its report (based on the assumption that Congress would adopt a 20:1 ratio for the triggering quantities). See id. at A-1 to A-10. Although a number of bills to lower the 100:1 ratio were introduced in the wake of the Commission's 1997 and 2002 reports, none of the bills was enacted. See Castillo, 460 F.3d at 348, 350 (summarizing bills).2

B. Facts and Proceedings Below

1. On the evening of May 24, 2004, two police officers in Norfolk, Virginia, observed petitioner in the driver's seat of a vehicle parked in a well-known drug-trafficking area. Another individual was sitting in the passenger's seat, and a third individual was crouched beside the driver's door. When the officers approached, the third individual fled. Petitioner had $125 on his lap; after pe titioner agreed to a search of the vehicle, the officers found a bag containing 62 grams of powder cocaine and an additional $5,000. Petitioner and the passenger then attempted to flee; the officers apprehended them and found $1,823 and a magazine of bullets on petitioner's person, along with a loaded firearm that the passenger had dropped. A further search of the vehicle revealed 56 grams of crack cocaine, more powder cocaine, and a large quantity of additional cash. J.A. 30-32, 107-108.

2. On September 13, 2004, a grand jury in the East ern District of Virginia returned an indictment charging petitioner with conspiring to distribute cocaine (i.e., powder cocaine) and 50 grams or more of cocaine base (i.e., crack cocaine), in violation of 21 U.S.C. 841(a)(1), (b)(1)(A)(iii) and (b)(1)(C), and 846; possessing 50 grams or more of cocaine base with intent to distribute, in vio lation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii); possessing cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C); and possessing a firearm in fur therance of a drug trafficking crime, in violation of 18 U.S.C. 924(c). J.A. 8-14. The indictment specified that petitioner was responsible for approximately 56 grams of crack cocaine and 92.1 grams of powder cocaine. J.A. 10, 11. Petitioner pleaded guilty to all four counts with out entering into a plea agreement. J.A. 15-38.

3. Petitioner was sentenced after this Court's deci sion in United States v. Booker, 543 U.S. 220 (2005). In Booker, the Court held that the Sixth Amendment ap plies to the federal Sentencing Guidelines, id. at 226- 244, and that, as a remedial matter, two provisions of the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., should be severed, which would render the Guidelines advisory rather than mandatory, 543 U.S. at 244-268. Petitioner was subject to a statutory sentencing range of ten years to life on the crack-cocaine counts, see 21 U.S.C. 841(b)(1)(A)(iii), and a mandatory consecutive sentence of five years on the firearm-possession count, see 18 U.S.C. 924(c). Based on petitioner's conceded responsibility for 56 grams of crack cocaine and 92.1 grams of powder (which in total, based on the Guide lines' drug equivalency table, was the equivalent of 56.921 grams of crack or 5692.1 grams of powder), see J.A. 36, the presentence report (PSR) determined that petitioner's base offense level under the Guidelines was 32-the same base offense level that petitioner would have received if he had trafficked only 50 grams of crack cocaine (the triggering quantity for the ten-year statu tory minimum). J.A. 109; see Guidelines §§ 2D1.1(c)(4), 2D1.1 comment. (n.10). The PSR recommended a two- level upward adjustment for obstruction of justice based on petitioner's false testimony at his co-defendant's trial. J.A. 110. Based on a total offense level of 34 and a criminal history category of II, petitioner's Guidelines sentencing range on the crack-cocaine counts was 168 to 210 months of imprisonment. Guidelines Ch. 5, Pt. A (sentencing table).

In his brief at sentencing, petitioner contended that, in the wake of Booker, the district court had the author ity to address "the impact of the powder-crack cocaine disparity," J.A. 50, and that "the crack cocaine sentenc ing scheme with its 100-to-1 ratio generates unjustifi able disparities in sentencing." J.A. 51. Arguing that the district court "need no longer blindly adhere" to the 100:1 ratio, J.A. 52 (citation omitted), petitioner asked the district court to sentence him to the statutory mini mum of ten years (or 120 months) on the crack-cocaine counts (for a total sentence, including the mandatory consecutive sentence on the firearm count, of 180 months). J.A. 53. At the sentencing hearing, petitioner additionally argued that the court should vary down ward from the Guidelines range because his prior con victions were for misdemeanor offenses and because he had a work history that was without incident. J.A. 70-71.

The district court agreed with the PSR that peti tioner's Guidelines sentencing range on the drug counts was 168 to 210 months of imprisonment, but neverthe less sentenced petitioner to the statutory minimum of 120 months on the crack-cocaine counts. J.A. 67-68, 72- 76. The court stated that "[i]t is the Court's humble view that to impose a [total] sentence of 19 to 22 years in this case is ridiculous." J.A. 72. Such a sentence, the court reasoned, would "impose[] more punishment, given the record here, than is necessary to accomplish what needs to be done." Ibid. The court asserted that, "[w]hile the Congress, the Sentencing Commission rec ognizes that crack cocaine has not caused the damage that the Justice Department alleges it has, the Justice Department has yet to recognize the disproportionate and unjust effect that crack cocaine guidelines have in sentencing." Ibid. "This case," according to the court, "is another example of how the crack cocaine guidelines are driving the offense level to a point higher than is necessary to do justice." Ibid. The court added that "[i]t's amazing that when the Court goes back and calcu lates the offense in this case using powder cocaine, be cause we are dealing with cocaine at the end of the day in this case, the level, the guidelines range comes down so significantly that it's unbelievable." J.A. 74. The court reasoned that a lower sentence was necessary in order to "avoid imposing an unwarranted disproportion ate sentence." Ibid.

Although the district court primarily relied, in im posing sentence, on its disagreement with the disparity in sentences for crimes involving crack and powder co caine, the court also cited petitioner's limited criminal history, his work history, and his prior military service. J.A. 73, 74. The court expressed the view that the re sulting sentence was still "too long," but acknowledged that it was bound by the statutory minimum on the crack-cocaine counts. J.A. 75. When the government sought to preserve its objection to the sentence, the court stated that it "f[ou]nd it absolutely ridiculous [that] the Department of Justice demands the heart and lungs, feet, and everything else in a case on these facts." J.A. 77.

4. In an unpublished per curiam opinion, the court of appeals vacated the sentence and remanded for resen- tencing. J.A. 96-98. Citing its then-recent decision in United States v. Eura, 440 F.3d 625 (4th Cir. 2006), peti tion for cert. pending, No. 05-11659 (filed June 20, 2006), in which it had held 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 cocaine offenses," the court of appeals reasoned that the district court erred by "conclud[ing] that the crack to powder cocaine disparity warranted a sentence below the applicable sentencing guideline range." J.A. 98.

In Eura, the district court had calculated the defen dant's sentence for a crime involving crack cocaine as if "the Commission's 2002 recommendation [of a 20:1 ratio] [had] been adopted by Congress." 440 F.3d at 631 n.6. The court of appeals concluded that the sentence was unreasonable. Id. at 632. The court of appeals ex plained that "giving a sentencing court the authority to sentence a defendant based on its view of an appropriate ratio between crack cocaine and powder cocaine would inevitably result in an unwarranted disparity between similarly situated defendants." Id. at 633. Such dispari ties, the court of appeals reasoned, "tell us that sentenc ing courts should not be in the business of making legis lative judgments concerning crack cocaine and powder cocaine." Ibid.

The court of appeals then observed that "Congress has made a decision to treat crack cocaine dealers more severely than powder cocaine dealers" and "has also decided to instruct sentencing courts to avoid disparate sentences for crack cocaine dealers." Eura, 440 F.3d at 633. Based on those observations, the court concluded that "it simply would go against two explicit Congressio nal directives to allow sentencing courts to treat crack cocaine dealers on the same, or some different judicially- imposed, plane as powder cocaine dealers." Ibid. The court added that "allowing sentencing courts to subvert Congress' clearly expressed will certainly does not pro mote respect for the law, provide just punishment for the offense of conviction, or result in a sentence reflec tive of the offense's seriousness as deemed by Con gress." Ibid. The court noted that "it does not follow that all defendants convicted of crack cocaine offenses must receive a sentence within the advisory sentencing range," but that, in imposing a below-Guidelines sen tence, "a sentencing court must identify the individual aspects of the defendant's case that fit within the [statu tory sentencing] factors." Id. at 634.

Judge Michael concurred in part and concurred in the judgment in Eura, reasoning that a court could not solely rely on its disagreement with the disparity in sen tences for trafficking crack and powder cocaine in im posing a below-Guidelines sentence. 440 F.3d at 634- 639.

SUMMARY OF ARGUMENT

A. Congress has the power to prescribe the appro priate level of punishment for criminal offenses. It may not only set minimum and maximum penalties for an offense, but also restrict the courts' exercise of discre tion within the statutory sentencing range. Where Con gress imposes such restrictions, and where those re strictions do not violate the Constitution, courts are bound to abide by them. That is true even though courts otherwise have broad discretion in imposing sentence under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., as modified by this Court in United States v. Booker, 543 U.S. 220 (2005). The Sentencing Guide lines are now advisory, and courts may vary based solely on policy considerations, including disagreements with the Guidelines. But where Congress has made a specific policy determination concerning a particular offense (or offense or offender characteristic) that legally binds sentencing courts, and the Commission (as it must) in corporates that policy judgment into the Guidelines in order to maintain a rational and logical sentencing structure, that specific determination restricts the gen eral freedom that sentencing courts have to apply the factors set forth in 18 U.S.C. 3553(a). Congress did not intend for the general standards in Section 3553(a) to trump specific policy determinations that Congress it self directs to sentencing courts. Booker provides for review of sentences for "reasonableness," and a sentenc ing court does not act reasonably when it rejects a spe cific congressional mandate.

B. As almost all of the courts of appeals that have addressed the issue have held, Congress has made a binding policy determination with regard to the relative severity of trafficking crimes involving crack and pow der cocaine. Congress has determined, first, that, in sentencing a defendant for a crack-cocaine offense, a court should take into account the quantity of crack in volved, and second, that a court should do so in a manner that respects the 100:1 ratio of powder to crack used by Congress in establishing the sentencing ranges for of fenses involving those two substances. Congress's pol icy determination is embodied in the structure of the Anti-Drug Abuse Act of 1986 (1986 Act), Pub. L. No. 99- 570, 100 Stat. 3207, which establishes that, in sentencing defendants who distribute quantities of crack cocaine (or other regulated drugs), courts should take the quantities into account and sentence defendants accordingly. That determination is not limited solely to the specific manda tory minimum sentences that Congress linked to the 100:1 ratio. Rather, the Commission incorporated that determination into the relevant provisions of the Sen tencing Guidelines, which establish different sentencing ranges based on differing quantities in order to provide a logical and coherent sentencing structure. The 100:1 ratio in the Guidelines is thus a direct and necessary consequence of the directions Congress gave to sentenc ing courts in the 1986 Act.

To the extent there was any doubt, however, Con gress subsequently made clear, in rejecting the Sentenc ing Commission's proposed amendment that would have replaced the 100:1 ratio with a 1:1 ratio, that any change in the ratio must come from Congress, not the Commis sion. Because Congress has left the 100:1 ratio in place-even in the face of sustained criticism of that ratio from the Commission and repeated legislative pro posals to amend it-courts must impose sentence in a manner that respects the ratio. Under petitioner's con trary understanding of the relevant congressional pol icy, courts would be free to form whatever judgments they like about the comparative severity of crack-co caine and other drug offenses, seemingly including use of 5:1, 20:1, or other judge-specific ratios, subject only to the applicable statutory minimum and maximum sen tences and reasonableness review. That approach is a recipe for widespread disparity, and the Court should reject it as inconsistent with congressional intent.

C. Because Congress has made a binding policy de termination concerning sentencing for crack-cocaine offenses that applies to both sentencing courts and the Commission, this case does not present the issue whether district courts may vary from the Sentencing Guidelines standing alone based on a reasoned dis agreement with Commission policy. This case involves a sentencing structure created by Congress directly, not solely through the medium of the Commission's now- advisory work. Courts therefore may not second-guess the 100:1 ratio as a policy matter. But Congress's policy determination about the relative severity of crack and powder offenses does not effectively render the Guide lines mandatory for crack-cocaine offenses; courts re main free to vary from the Guidelines sentencing range in crack-cocaine cases based on other policy consider ations (or on relevant facts), subject to subsequent rea sonableness review. For largely the same reasons, Congress's establishment of a policy on this one issue does not raise Sixth Amendment difficulties.

D. Because the district court in this case relied on an impermissible factor in sentencing petitioner, i.e., its disagreement with and rejection of the 100:1 ratio adopted by Congress, the court of appeals correctly held that the district court committed error. On remand, the district court should be required to resentence peti tioner without reliance on that invalid consideration.

ARGUMENT

A DISTRICT COURT MAY NOT REDUCE A DEFENDANT'S SENTENCE BASED ON ITS DISAGREEMENT WITH THE 100:1 RATIO ADOPTED BY CONGRESS FOR CALCULATING SENTENCES FOR CRIMES INVOLVING CRACK AND POW DER COCAINE

Under the Constitution, Congress has the power to set sentencing policy. With regard to crack-cocaine and powder-cocaine offenses, Congress has determined that crack offenders should receive significantly greater pen alties than powder offenders, and it has directed courts to apply a 100:1 ratio used in setting the statutory sen tencing ranges. The same ratio is incorporated in the Sentencing Guidelines in order to establish a propor tional and consistent sentencing structure. As the over whelming majority of courts of appeals to have ad dressed the issue have held,3 when a sentencing court bases its sentence in whole or in part on its categorical disagreement with Congress's policy determination, the resulting sentence is necessarily unreasonable. The district court did precisely that in this case, and the court of appeals therefore correctly vacated the sen tence.

A. Congress's Policy Determinations Concerning The Ap propriate Level Of Punishment For Criminal Offenses Are Binding On Sentencing Courts

1. This Court has long recognized that the Constitu tion assigns to Congress the power to define criminal offenses and to prescribe the appropriate level of pun ishment for those offenses. As Chief Justice Marshall explained, "the power of punishment is vested in the legislative, not in the judicial department," and "[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment." United States v. Wiltber- ger, 18 U.S. (5 Wheat.) 76, 95 (1820); accord Whalen v. United States, 445 U.S. 684, 689 (1980); Gore v. United States, 357 U.S. 386, 393 (1958); United States v. Evans, 333 U.S. 483, 486 (1948).

Congress may exercise its power to prescribe the appropriate level of punishment either by specifying the penalty for an offense or by setting minimum and maxi mum penalties for the offense (and leaving it to judicial discretion to choose a sentence within the statutory sen tencing range). See, e.g., Chapman v. United States, 500 U.S. 453, 467 (1991). Should Congress provide a statu tory sentencing range, it may impose restrictions on the manner in which courts exercise their discretion within the range. Typically, Congress has "delegated almost unfettered discretion to the sentencing judge to deter mine what the sentence should be within [a] * * * wide [statutory] range." Mistretta v. United States, 488 U.S. 361, 364 (1989). But this Court has emphasized that "the scope of judicial discretion with respect to a sentence is subject to congressional control." Ibid.; cf. Harris v. United States, 536 U.S. 545, 567 (2002) (plurality opin ion) (explaining that, "[w]ithin the range authorized by the jury's verdict, * * * the political system may chan nel judicial discretion").4

When Congress makes policy determinations con cerning the appropriate level of punishment for criminal offenses-whether it does so by specifying the penalty for the offense, setting minimum and maximum penal ties, or by limiting the exercise of judicial discretion within the statutory sentencing range-courts are bound to adhere to those determinations. That principle is rooted in the separation of powers, because determi nations concerning the appropriate level of punishment are no different from other legislative determinations that courts are obliged to respect. See, e.g., Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion) (noting that courts must "accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions"); Blanton v. City of North Las Ve gas, 489 U.S. 538, 541 (1989) (concluding that "[t]he judi ciary should not substitute its judgment as to serious ness [of an offense] for that of a legislature, which is far better equipped to perform the task") (internal quota tion marks and citation omitted); Harmelin v. Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (observing that "[d]e- terminations about the nature and purposes of punish ment for criminal acts implicate difficult and enduring questions" and that "the responsibility for making these fundamental choices and implementing them lies with the legislature"). Courts may refuse to follow congres sional policy determinations concerning sentencing only when those determinations violate the Constitution, e.g., by imposing cruel and unusual punishment or a constitu tionally excessive fine. See United States v. Bajakajian, 524 U.S. 321 (1988).

2. In the Sentencing Reform Act of 1984 (SRA), 18 U.S.C. 3551 et seq., Congress established general consid erations that courts must take into account in exercising their sentencing discretion. Specifically, Congress di rected courts, "in determining the particular sentence to be imposed," to consider seven factors:

(1) "the nature and circumstances of the offense and the history and characteristics of the defen dant";

(2) "the need for the sentence imposed" (A) "to re flect the seriousness of the offense, to promote respect for the law, and to provide just punish ment 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 ef fective manner";

(3) "the kinds of sentences available";

(4) "the kinds of sentence and the sentencing range established for * * * the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines * * * issued by the Sentencing Commission";

(5) "any pertinent policy statement * * * issued by the Sentencing Commission";

(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."

18 U.S.C. 3553(a) (2000 & Supp. IV 2004). Congress further required courts to "impose a sentence sufficient, but not greater than necessary, to comply with the pur poses set forth" in paragraph (2). Ibid.

While Congress in the SRA directed courts to con sider the enumerated factors in exercising their sentenc ing discretion, Congress also required courts to impose the sentence set forth in the Sentencing Guidelines (un less there was a basis for departing from the Guidelines range). 18 U.S.C. 3553(b)(1) (Supp. IV 2004). In United States v. Booker, 543 U.S. 220 (2005), the Court held that the Sixth Amendment applies to the federal Sen tencing Guidelines, id. at 226-244, and that, as a reme dial matter, Section 3553(b)(1), which had made the Guidelines mandatory, should be severed, id. at 244-268. As modified by Booker, "[the SRA] makes the Guidelines effectively advisory"; "[i]t requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well." Id. at 245-246 (citations omitted). The Court also severed an appellate-review provision, 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), which required de novo review of decisions to depart from the Guidelines, and required instead that courts of appeals determine "whether the sentence 'is unreasonable' with regard to [18 U.S.C. § 3553(a)]." 543 U.S. at 261.

In the wake of Booker, district courts must consider the broad factors enumerated in Section 3553(a) in im posing sentence. In considering those factors, however, district courts do not have limitless discretion, but are bound by any specific policy determinations that Con gress has directed sentencing courts to observe concern ing particular offenses (or offense or offender character istics). Where Congress has made such specific policy determinations, they will not ordinarily conflict with the generally applicable sentencing factors in Section 3553(a); instead, Congress's determinations will simply give content to, and inform the application of, those fac tors. See, e.g., United States v. Castillo, 460 F.3d 337, 357 (2d Cir. 2006) (noting that "courts do not operate in a vacuum" in applying the Section 3553(a) factors). But if a specific mandatory policy that Congress directs to sentencing courts does create a conflict with what a dis trict court believes to be the general charge of Section 3553(a), the specific expressions of Congress's will must control, under the familiar canon of construction that the specific governs the general. See, e.g., Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2348 (2007); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992); Guidry v. Sheet Metal Workers Pension Fund, 493 U.S. 365, 375 (1990); Simpson v. United States, 435 U.S. 6, 15 (1978).5 Congress cannot be thought to have licensed courts under the general guise of Section 3553(a) to disagree with, and thus nullify, specific policy directions that Congress itself has also given to sentenc ing courts. Thus, when a court disagrees with specific statutory policies embodied in directions to the sentenc ing court (and the court relies on that disagreement in imposing sentence), the resulting sentence will necessar ily be unreasonable.6

For example, in considering the directive in Section 3553(a)(2)(A) to take into account "the need for the sen tence imposed * * * to reflect the seriousness of the offense" (or the directive in Section 3553(a)(1) to take into account "the nature and circumstances of the of fense"), a sentencing court is bound by any congressio nal policy determination directed to the sentencing court concerning the seriousness of a particular offense or offense characteristics-just as a sentencing court would be bound by a statute specifying the penalty for that offense. If Congress were to provide that a court should ordinarily sentence a defendant convicted of armed bank robbery toward the top of the statutory sen tencing range where the defendant was found to have committed the robbery with an automatic rifle, a district court could not sentence the defendant at the bottom of the range based on its own view that bank robberies committed with automatic rifles are categorically no more "serious" than other armed bank robberies. So too the courts are bound by Congress's judgment that crack-cocaine offenses are much more serious than of fenses involving comparable amounts of powder cocaine.

Similarly, in considering the directive in Section 3553(a)(6) to take into account "the need to avoid unwar ranted sentence disparities among defendants with simi lar records who have been found guilty of similar con duct," a sentencing court is bound by any congressional policy determination concerning the similarity of certain conduct to other conduct (and the appropriateness of a sentencing disparity)-just as a sentencing court would be bound by statutes specifying different penalties for each type of conduct. See, e.g., United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006) (concluding that "[t]he command that courts should consider the need to avoid 'unwarranted sentence disparities' * * * emanates from a statute, and it is thus within the prov ince of the policymaking branches of government to de termine that certain disparities are warranted, and thus need not be avoided"). If Congress were to provide that, for sentencing purposes, a court should treat an armed robbery committed with an automatic rifle the same as an armed robbery committed with a silenced pistol, a district court could not sentence a defendant who used an automatic rifle more harshly based on its own view that such an armed robbery is not "similar" to an armed robbery with a silenced pistol, or that a disparity in sen tencing between the two types of armed robbery is "warranted." Moreover, freedom to disregard such con gressional judgments and allow each judge to assess the relative severity of certain conduct is an invitation to disparity that Section 3553(a)(6) charges courts to avoid.

Nothing in this Court's decision in Booker altered a sentencing court's obligation to adhere to specific con gressional policy determinations in sentencing. See, e.g., United States v. Cannon, 429 F.3d 1158, 1161 (7th Cir. 2005) (concluding that "Booker does not permit courts to make independent decisions about the wisdom of legislation"). While sentencing courts are to treat the Guidelines as advisory and to "impose a sentence suffi cient, but not greater than necessary, to comply with the purposes set forth" in Section 3553(a)(2), that general responsibility does not authorize a sentencing court to contravene a congressional policy determination.

3. Like sentencing courts, the Sentencing Commis sion itself is bound by specific congressional policy de terminations. For the most part, Congress delegated discretionary authority to the Sentencing Commission to formulate Guidelines for classes of offenses and offend ers in order to effectuate the goals of sentencing set out in the SRA. See Rita v. United States, 127 S. Ct. 2456, 2463 (2007); Mistretta, 488 U.S. at 374. That discretion is not unlimited, however, because Congress provided substantial guidance to the Commission about the gen eral principles to incorporate into the Guidelines. For example, Congress required the Commission to provide sentences at or near the statutory maximum for certain career offenders, 28 U.S.C. 994(h); to require substantial terms of imprisonment for certain drug offenders, 28 U.S.C. 994(i)(5); and to reflect the fact that many pre- SRA sentences had not accurately captured the serious ness of the offense, 28 U.S.C. 994(m). See Mistretta, 484 U.S. at 377 (noting that, "although Congress granted the Commission substantial discretion in formulating guide lines, in actuality it legislated a full hierarchy of pun ishment-from near maximum imprisonment, to sub stantial imprisonment, to some imprisonment, to alter natives-and stipulated the most important offense and offender characteristics to place defendants within these categories").

When the Commission acts under such congressional guidance, the guidelines it produces are, under Booker, best understood as advisory. A district court may there fore sentence based on policy considerations that differ from those reflected in the Guidelines (subject to rea sonableness review on appeal). See U.S. Br. at 35-37, Gall v. United States, No. 06-7949. The same appears to be true even if Congress imposes a specific mandate on the Commission to write a particular guideline or if Con gress writes language in the Guidelines manual itself. As long as Congress expresses its will wholly through the Guidelines system, the policies in the Guidelines will be best understood as advisory under Booker and sub ject to the general principles of sentencing in Section 3553(a).7

Matters are different when Congress expresses its policy not wholly through the Guidelines, but through direct sentencing requirements imposed on courts. In that situation, the Guidelines must reflect and incorpo rate Congress's policy judgments because of the neces sity of coordinating the Guidelines with sentencing stat utes. The resulting "guideline" is essentially just a re flection of the direct congressional policy mandate to sentencing courts. Only by incorporating the direct con gressional sentencing mandate to the district courts into such a guideline can the Commission both conform to Congress's will and provide a coherent sentencing scheme that avoids unwarranted disparities. But the resulting guideline differs from ordinary guidelines. A sentencing court that purports to reject such a guideline for policy reasons would be disagreeing not just with the action of the Commission, but with a direct mandate of Congress.

Two critical features combine to distinguish guide lines that simply implement the SRA from guidelines that incorporate congressional policy in a manner that binds district courts even after Booker. First, Congress has directed the Commission to promulgate guidelines that are "consistent with all pertinent provisions of any Federal statute." 28 U.S.C. 994(a). When those provi sions contain sentencing directives that bind district courts, the Commission cannot override or ignore them. Cf. United States v. LaBonte, 520 U.S. 751, 757 (1997) (invalidating amendment to the career offender guide line, Guidelines § 4B1.1, that violated 28 U.S.C. 994(h)'s provision that the Commission must "assure" that a ca reer offender receive a sentence "at or near the maxi mum term authorized," and explaining that the Commis sion's discretion "must bow to the specific directives of Congress"). Second, the Commission, like Congress, has an obligation to provide a "rational sentencing scheme." Chapman v. United States, 500 U.S. 453, 465 (1991) (up holding the rationality of 21 U.S.C. 841(b), which "as signs more severe penalties to the distribution of larger quantities of drugs"). The Commission cannot formulate a rational guidelines scheme without logically linking its penalties to the sentencing directions that Congress has given directly to the courts. An irrational disconnect between the guidelines and Congress's directions to sen tencing courts would undermine the sentencing statutes and create an unworkable and incoherent system. Ac cordingly, when Congress establishes a sentencing pol icy that binds both the Commission and the courts, indi vidual judges cannot lawfully impose sentences based on disagreements with that policy.

B. Congress Has Determined That, In Sentencing A Defen dant For A Crack-Cocaine Offense, A Court Should Take Into Account The Quantity Of Crack Involved And Sen tence The Defendant In A Manner That Respects The 100:1 Ratio

Congress has established precisely such a binding sentencing policy with regard to the relative severity of trafficking crimes involving crack and powder cocaine. Specifically, Congress has made clear, first, that, in sen tencing a defendant for a crack-cocaine offense, a court should take into account the quantity of crack involved, and second, that, a court should do so in a manner that respects the 100:1 ratio of powder to crack used by Con gress in establishing the sentencing ranges for offenses involving those two substances. Petitioner's attempt to limit Congress's policy merely to statutory minimum terms is unsustainable.

1. In the Anti-Drug Abuse Act of 1986 (1986 Act), Pub. L. No. 99-570, 100 Stat. 3207, Congress established a three-tier penalty system for certain drugs, based on the quantity of the distributed substance. In setting the threshold quantities required to trigger the top two tiers of sentencing ranges, the 1986 Act first adopted the 100:1 ratio of powder to crack cocaine, such that each threshold for powder was set at 100 times the corre sponding threshold for crack. See 21 U.S.C. 841(b)(1) (A)(ii)-(iii) and (b)(1)(B)(ii)-(iii).8 In doing so, Congress clearly intended to impose significantly greater penal ties on distributors of crack cocaine than similarly situ ated distributors of powder cocaine. See United States v. Williams, 456 F.3d 1353, 1367 (11th Cir. 2006) (noting that "Congress's decision to punish crack cocaine offend ers more severely than powder cocaine offenders is plainly a policy decision" and "reflects Congress's judg ment that crack cocaine poses a greater harm to society than powder cocaine"), cert. dismissed, 127 S. Ct. 3040 (2007); see generally Frank v. United States, 395 U.S. 147, 148 (1969) (explaining that "[t]he most relevant in dication of the seriousness of an offense is the severity of the penalty authorized for its commission"). Accord ingly, any sentence that purports to equate the severity of an offense involving crack cocaine to that of an of fense involving a similar amount of powder cocaine can not be squared with Congress's policy mandate.

Nor does the scheme leave any doubt as to how much more severely offenses involving crack are to be treated. Congress chose a 100:1 ratio. Contrary to petitioner's contention (Br. 24), in enacting the 1986 Act, Congress did not simply establish minimum sentences for crack- cocaine offenses. Implicit in the 1986 Act was a struc tural determination for courts and the Commission, as they dealt with defendants who distributed quantities of crack cocaine that were below, between, or above the two specified "reference points." Specifically, the Act contemplates graduated sentencing that would maintain a proportional, quantity-based progression around the minimum sentences specified for the threshold amounts of crack. Such sentences would necessarily respect the 100:1 ratio of powder to crack, because, as one court has explained, "it would be illogical to set the maximum and minimum sentences on one construct and then to use some other, essentially antithetic construct as the basis for fashioning sentences within the range." United States v. Pho, 433 F.3d 53, 63 (1st Cir. 2006); cf. United States v. Pickett, 475 F.3d 1347, 1355 (D.C. Cir. 2007) (acknowledging that "[i]t 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"), petition for cert. pending, No. 07-218 (filed Aug. 20, 2007).

Perhaps most significantly, a sentencing method that either did not take into account the quantity of crack involved or did so in a manner inconsistent with the 100:1 ratio would lead to drastic and obviously unwar ranted sentencing disparities, or "cliffs," based on insig nificant differences in drug quantities. Under such a method, a defendant who was responsible for a quantity of crack cocaine that was just below the triggering quan tity for a statutory minimum sentence-e.g., 49 grams- could receive a considerably lower sentence than an oth erwise identically situated defendant who was responsi ble for the triggering quantity (and thus subject to the statutory minimum). While Congress did not expressly "direct[] the Sentencing Commission to incorporate the 100:1 ratio in the Guidelines" (Pet. Br. 15), it would be logically incoherent to read the 1986 Act not to require the Commission and sentencing courts to apply a gradu ated penalty structure that takes drug quantity into ac count (and does so in a manner that respects the 100:1 ratio).

Notably, when the Sentencing Commission estab lished the relevant Sentencing Guidelines for drug-traf ficking offenses in 1987, it read the 1986 Act the same way. The Commission adopted sentencing ranges that used the triggering quantities of crack cocaine (and other drugs subject to the three-tier system) as "refer ence points"; set offense levels for those quantities that would presumptively lead to sentences at or just above the statutory minimums; and established graduated of fense levels, whereby the offense level would increase (or decrease) in two-level increments as the amount of the drug increased (or decreased) from those quantities. See Guidelines § 2D1.1(c). The consequence of that ap proach was to carry forward the 100:1 powder-to-crack ratio that Congress used in the statutory sentencing ranges.9 Critically, the Commission explained that the "further refinement of drug amounts" reflected in the Guidelines was "essential to provide a logical sentencing structure for drug offenses" in light of the statutory minimums adopted in the 1986 Act. Guidelines § 2D1.1, comment. (backg'd). The Commission thereby recog nized that, in the wake of the 1986 Act (and its own obli gation to "reduc[e] unwarranted sentence disparities," 28 U.S.C. 994(f)), it "was left no choice but to employ the same ratio in crafting the various Guidelines ranges within th[e] statutory ranges." Williams, 456 F.3d at 1368.

2. In 1995, Congress rejected the Commission's pro posal to amend the Guidelines and replace the 100:1 ra tio with a 1:1 ratio (thus imposing the same penalties on otherwise identical offenses involving crack and powder cocaine). See Pub. L. No. 104-38, 109 Stat. 334.10 Con gress expressed the view that the 1:1 ratio proposed by the Commission was too low, emphasizing that "the sen tence imposed for trafficking in a quantity of crack co caine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine." § 2(a)(1)(A), 109 Stat. 334.

In rejecting the Commission's proposed amendment, however, Congress not only disapproved of the 1:1 ratio, but went further and made clear what was implicit in the structure of the 1986 Act: i.e., that the 1986 Act re quired the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio. Specifically, while Con gress "authorized consideration of alternative ap proaches" (Pet. Br. 26) by inviting the Commission to propose a more modest revision to the 100:1 ratio, Con gress indicated that any such revision would require changes not only to the relevant guidelines, but also to the 1986 Act itself-thereby reflecting Congress's un derstanding that the 1986 Act mandated adherence to the 100:1 ratio in imposing sentence. See, e.g., Pub. L. No. 104-38, § 2(a)(1), 109 Stat. 334 (directing the Com mission to "submit to Congress recommendations (and an explanation therefor), regarding changes to the stat utes and sentencing guidelines governing sentences for * * * trafficking of cocaine") (emphasis added); § 2(a)(2), 109 Stat. 335 (providing that the Commission "shall propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant stat utes and guidelines in a manner consistent with the ra tios set for other drugs and consistent with the objec tives set forth in [18 U.S.C. 3553(a)]") (emphasis added). Congress's rejection of the proposed amendment there fore constituted "a clear statement of Congressional belief that changing the Guidelines ratio without chang ing the mandatory minimums would result in an unwar ranted disparity, while retaining the ratio at 100:1 would not." Castillo, 460 F.3d at 358.

The legislative history to the 1995 statute confirms that Congress understood that any proposed sentencing system that takes drug quantity into account in a man ner inconsistent with the 100:1 ratio would conflict with the structure of the 1986 Act. The House Report expressed concern that the proposed amendment would give rise to sentencing "cliffs" near the triggering quantities-a concern that, as explained above, would exist whenever a sentencing system was based on a ratio other than 100:1 (but the statutory minimums based on the 100:1 ratio remained). See H.R. Rep. No. 272, 104th Cong., 1st Sess. 4 (1995) (noting that, if the "amend ments went into effect without Congress lowering the current statutory mandatory minimum penalties, it would create gross sentencing disparities" around the statutory minimum and thereby "establish penalties for crimes that stand in sharp contrast with statutory man datory minimum penalties"). And the principal sponsors of the statute stated not only that the proposed amend ment was inconsistent with the 1986 Act, but that any significant change in sentencing for crack-cocaine of fenses would require legislative action. See pp. 8-9, su pra (quoting statements of Sen. Abraham and Rep. McCollum).11

In 1997 and 2002, the Sentencing Commission issued reports criticizing the 100:1 ratio. Notably, however, in both of those reports, the Commission, consistent with the view expressed by Congress in rejecting the Commis sion's proposed amendment in 1995, seemingly acknowl edged that Congress would need to take action before the Commission could deviate from the 100:1 ratio, and duly recommended that Congress do so (on the under standing that the Commission would then make con forming changes to the relevant guidelines). See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Pol icy 9 (1997) (recommending that Congress "revise the federal statutory penalty scheme for both crack and powder cocaine offenses" by, inter alia, adopting a 5:1 ratio); United States Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy 92 (2002) (recommending, inter alia, that Congress "decreas[e] the residual quantity-based penalties that apply to all crack cocaine offenders" by adopting no higher than a 20:1 ratio); but cf. id. at 90 (stating that "the legislative history is ambiguous as to whether Con gress intended the penalty structure for crack cocaine offenses to fit within the general two-tiered, five and ten-year penalty structure for serious and major traf fickers created by the 1986 Act"). Those reports con firm the Commission's understanding, dating from the initial Guidelines on drug quantity in 1987, that the Commission, like courts, is required to take drug quanti ties into account in setting sentences for crack-cocaine offenses, and that it is required to do so in a manner that respects the 100:1 ratio. A fortiori, by the Commission's own reasoning, the Commission's criticism of the 100:1 ratio in its reports cannot defeat Congress's adoption of the 100:1 ratio in the 1986 Act.12

3. Since 1995, Congress has taken no action to alter the 100:1 ratio, despite the Sentencing Commission's reports criticizing that ratio. Although a number of bills to lower the 100:1 ratio have been introduced, none of those bills has been enacted. See Castillo, 460 F.3d at 348, 350 (summarizing bills). While members of Con gress have "acknowledged that the [100:1] ratio is prob lematic" (Pet. Br. 15)-and, indeed, Congress has in vited the Commission to propose revisions to that ra tio-it is well established that "[c]ongressional inaction cannot amend a duly enacted statute." Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989).

4. Petitioner's contrary understanding of congres sional policy-under which Congress has done nothing more than establish statutory minimums for certain drug offenses, see Pet. Br. 24-would leave courts free not only to impose lower sentences for crimes involving crack cocaine (on the basis that the 100:1 ratio embodied in the Guidelines is not congressionally mandated and is excessive), but also to impose higher sentences for crimes involving powder cocaine (on the same basis). See id. at 29 (contending that "a district court not only may, but should, conduct its own evaluation of the 100:1 ratio"). Indeed, it would leave courts free to adopt what ever views they wished about the comparative severity of drugs (subject only to the statutory sentencing ranges and reasonableness review) in cases involving any of the drugs subject to Congress's three-tier quantity-based system. Courts thus could register their disagreement with Congress's relative treatment of any combination of those drugs (as reflected in the triggering quantities in the 1986 Act). That is because, as petitioner acknowl edges, it necessarily follows from petitioner's under standing of congressional policy that a court could con clude that trafficking in any of those drugs constitutes "similar conduct" for purposes of Section 3553(a)(6) (and impose sentence accordingly), subject only to whatever limits are imposed by appellate reasonableness review. See id. at 30 (contending that "[t]he term 'similar con duct' is broad enough to include all drug offenses"); cf. FPCD Br. 19 (contending that "a sentencing court might appropriately identify all cocaine defendants distribut ing comparable quantities" as having engaged in "simi lar conduct"). As a result, "the entire drug quantity table could be effectively discarded as courts express differing opinions as to the relative harmfulness of dif ferent drugs." Castillo, 460 F.3d at 359.

The end result of giving courts the discretion to mod ify or disregard the 100:1 ratio would be considerable disparities in sentencing for drug offenses. If each sen tencing judge is permitted to adopt whatever policy he deems appropriate with regard to individual drugs (sub ject only to the statutory sentencing ranges), defendants with identical real conduct will receive markedly differ ent sentences, depending on nothing more than the par ticular judge drawn for sentencing. And each judge could formulate his own ratio-with the result that one judge might use 5:1, another 20:1, and yet a third 100:1.13 Insofar as a judge adopts ratios of his own or even concludes that trafficking in different quantities of the same drug (within the same statutory range) consti tutes "similar conduct" warranting similar sentences, the same judge could end up imposing wildly different sentences based on insignificant variations in drug quan tity around the statutory triggers, resulting in sentenc ing "cliffs" of varying severity depending on the ratio employed by any particular judge in that judge's court room.

The ultimate flaw with petitioner's approach, beyond the "discordant symphony" that would ensue from adopting it, Booker, 543 U.S. at 263, is that it cannot be reconciled with the 1986 Act. Under that approach, a court could give a distributor of heroin a lower sentence on the ground that distributors of identical amounts of marijuana and heroin should be given the same sen tences; the only difference between that case and one in which a court gives a distributor of crack cocaine a lower sentence is that there may be stronger policy grounds on which to disagree with Congress's judgment concern ing the relative severity of crack and powder offenses than its judgment concerning the relative severity of marijuana and heroin offenses.14 Both of those judg- ments, however, are ones that Congress made in the 1986 Act-and courts therefore lack the discretion to disagree with them. See, e.g., United States v. Gaines, 122 F.3d 324, 330 (6th Cir.) (noting that "[r]easonable minds can differ as to whether Congress * * * chose the best policy, but as long as the 100:1 ratio does not violate the Constitution, it is for Congress to make the policy choice"), cert. denied, 522 U.S. 962 (1997).

In sum, because "Congress incorporated the 100:1 ratio in the statutory scheme, rejected the Sentencing Commission's 1995 proposal to rid the guidelines of it, and failed to adopt any of the Commission's subsequent recommendations for easing the differential between crack and powdered cocaine," it is clear that "[t]he deci sion to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy judg ment, pure and simple." Pho, 433 F.3d at 62-63. That policy determination is one that courts, no less than the Sentencing Commission, are bound to respect.

C. Requiring Courts To Adhere To Congress's Policy Deter minations Concerning Sentencing For Crack-Cocaine Offenses Would Not Reestablish Mandatory Guidelines Or Violate The Sixth Amendment

1. Petitioner and his amici repeatedly contend that the question presented in this case is whether district courts may disagree with the Sentencing Guidelines in imposing sentence for crack-cocaine offenses. See, e.g., Pet. Br. 13; ACLU Br. 20-25; NACDL Br. 5, 11-13. That contention fails, however, for the simple reason that, in adopting the relevant guidelines, the Sentencing Com mission itself was bound by, and duly implemented, Con gress's policy direction to sentencing courts with respect to the 100:1 ratio. Because this case involves a court's disagreement with a policy determination made by Con gress in enacting sentencing statutes directed to the courts (and implemented by the Commission), not one made by the Commission in carrying out its general re sponsibility to implement the SRA, petitioner cannot bring himself within this Court's recognition that dis trict courts may vary from the Guidelines based on a reasoned disagreement with Commission policy. See, e.g., Rita, 127 S. Ct. at 2465 (noting that the parties may argue "that the Guidelines sentence should not ap ply * * * because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations"). Contrary to petitioner's contention (Br. 22), there is nothing pecu liar about a regime that "allows sentencing courts to evaluate Commission judgments in the Guidelines, but prohibits them from taking into consideration the Com mission's public and persistent declaration that the 100:1 ratio is flawed," in light of the fact that the 100:1 ratio was adopted (and thus can only be altered) by Congress.

2. A rule that prohibited district courts from reduc ing a defendant's sentence based on their disagreement with the 100:1 ratio would not "effectively reinstate the mandatory nature of the guideline applicable to [crack- cocaine] cases," as petitioner suggests (Br. 34). While the Sentencing Guidelines establish a base offense level for crack-cocaine offenses based on the 100:1 ratio, the ultimate Guidelines sentencing range remains advisory, and district courts may vary from that range based on any other consideration besides their disagreement with the 100:1 ratio, provided that the consideration is consis tent with Section 3553(a) (and upheld in subsequent rea sonableness review). See, e.g., Castillo, 460 F.3d at 361 (emphasizing that "district courts may give non-Guide lines sentences * * * because of case-specific applica tions of the § 3553(a) factors"). Specifically, district courts may rely on any facts, including (but not limited to) facts already reflected in the jury verdict or in the defendant's admissions, or on other policy consider ations, in determining that an above- or below-Guide lines sentence is justified. See, e.g., Rita, 127 S. Ct. at 2466 (emphasizing that a judge may sentence above the Guidelines range "in the absence of the special facts * * * which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range"). Thus, for example, a court could disagree with the Guidelines' treatment of a crack of fender's role in the offense, or (as was seemingly the case here) with the Guidelines' treatment of the of fender's prior military service. The mere fact that there may be cases in which no such facts or policy consider ations exist does not render the guideline for crack-co caine cases "mandatory," any more than it does for the guidelines for any other types of offense.15

Contrary to petitioner's contention (Br. 14), courts would not be entirely prohibited from considering the Sentencing Commission's reports concerning sentencing for crack-cocaine offenses. While courts could not rely on those reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defen dant's commission of a crack-cocaine offense implicates the policy reasons underlying Congress's harsher treat ment of crack offenses. See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369. For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons). See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentenc ing Policy 184-185 (1995). Accordingly, it would not be inconsistent with congressional policy for a court to con clude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a down ward variance would be appropriate.

3. Petitioner erroneously asserts (Br. 34-35) that a rule that prohibited district courts from reducing a de fendant's sentence based on their disagreement with the 100:1 ratio would violate the Sixth Amendment. This Court has found guidelines systems inconsistent with the Sixth Amendment when they mandate some range, lower than the statutory maximum for the relevant of fense, that the judge may lawfully exceed only by find ing a fact beyond the "facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis omitted); see Cunn ingham v. California, 127 S. Ct. 856, 869 (2007) (explain ing that the Sixth Amendment is violated "[i]f the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the lon ger term"). A court need not find any additional fact to sentence a crack offender outside the Guidelines range; instead, the court may vary upward (or downward) based on its own judgment about proper sentencing pol icy, as long as its policy judgment does not conflict with that of Congress (and is found valid on subsequent rea sonableness review). Nothing in this Court's Sixth Amendment decisions requires that every conceivable policy judgment be available to the sentencing court. As long as the district court can sentence above the Guide lines range without finding an additional fact, a rule that takes a single policy consideration off the table presents no Sixth Amendment difficulty.

D. Because The District Court Reduced Petitioner's Sen tence Based On Its Disagreement With The 100:1 Ratio, The Resulting Sentence Was Unreasonable

1. As explained above, see p. 26 & n.6, supra, where a court fails to comply with a congressional policy deter mination in imposing sentence, the resulting sentence will necessarily be unreasonable. In this case, although petitioner was subject to a statutory minimum sentence of 120 months on the crack-cocaine counts, petitioner's advisory Guidelines sentencing range was 168 to 210 months (with the increase from the statutory minimum resulting almost entirely from an adjustment for ob struction of justice and from petitioner's criminal his tory). In sentencing petitioner to the statutory mini mum on the crack-cocaine counts, however, the court primarily relied on its disagreement with the disparity in sentences for crimes involving crack and powder co caine. The court cited the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." J.A. 72. "This case," according to the court, "is another example of how the crack cocaine guidelines are driving the offense level to a point higher than is necessary to do justice." Ibid. The court added that "[i]t's amazing that when the Court goes back and calculates the offense in this case using powder cocaine, because we are dealing with cocaine at the end of the day in this case, the level, the guidelines range comes down so significantly that it's unbelievable." J.A. 74. The court reasoned that a lower sentence was necessary in order to "avoid impos ing an unwarranted disproportionate sentence." Ibid. The district court therefore evidently sentenced peti tioner in significant part based on its rejection of the 100:1 ratio adopted by Congress.

Petitioner seemingly (and tellingly) concedes (Br. 32 n.9) that it would be improper for a sentencing court to announce a different ratio of its own, but nevertheless contends that the district court acted reasonably be cause it did not do so here. But where, as here, a sen tencing court rejects the 100:1 ratio, it does not matter whether the court acts transparently in announcing the ratio that it is applying, applies a different ratio sub silentio, or implicitly adopts an unspecified ratio; in all of those cases, the court effectively "revise[s] the 100:1 ratio." Ibid. Although it is impossible in this case to isolate the ratio that the district court used (in light of the fact that the district court did not articulate a ratio and relied in addition on other factors in imposing sen tence), it is clear that the district court's disagreement with the congressional policy formed a critical factor that drove its analysis. The Court emphasized the dis parity created by the differential treatment of crack and powder cocaine, even though both are "cocaine at the end of the day." J.A. 74. Indeed, the district court sug gested that, were it not bound by the statutory mini mum, it would have applied a 1:1 ratio. Ibid. Where a sentencing court relies in whole or in part on its dis agreement with the 100:1 ratio, regardless whether it articulates an explicit alternative ratio of its own, it com mits legal error.

2. As petitioner notes (Br. 45-46), the district court also cited petitioner's limited criminal history, his work history, and his prior military service in imposing a be- low-Guidelines sentence. J.A. 73, 74. Because the dis trict court primarily relied on its disagreement with the disparity in sentences for crimes involving crack and powder cocaine, however, the court of appeals correctly vacated the sentence and remanded for resentencing. Cf. Williams v. United States, 503 U.S. 193, 203 (1992) (holding that, when a court of appeals concludes that the district court "relied upon an invalid factor at sentenc ing," it should remand for resentencing unless it con cludes that "the error did not affect the district court's selection of the sentence imposed"). On remand, the district court should consider whether the remaining factors on which it relied justify a below-Guidelines sen tence, and, if so, the extent of an appropriate variance. Should the district court conclude that a downward vari ance is warranted, that sentence will be subject to rea sonableness review in any subsequent appeal.

CONCLUSION

The judgment of the court of appeals should be af firmed.

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
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys

 

 

AUGUST 2007

1 While not defined in the 1986 Act, the phrase "cocaine base" plainly includes crack cocaine, which is by far the most commonly trafficked form of cocaine in its chemically base form. See 1995 Report 13-14; United States v. Pho, 433 F.3d 53, 54 n.1 (1st Cir. 2006). The courts of appeals are divided on whether "cocaine base" reaches other types of cocaine in base form besides crack. Compare, e.g., United States v. Barbosa, 271 F.3d 438, 461-467 (3d Cir. 2001), cert. denied, 537 U.S. 1049 (2002), with United States v. Edwards, 397 F.3d 570 (7th Cir. 2005).

2 Earlier this year, the Sentencing Commission again recommended that Congress alter the ratio used in establishing the statutory mini mum sentences for crack-cocaine offenses, although the Commission made no specific recommendation. See 2007 Report 8. The Commis sion also proposed an amendment to the Guidelines that would lower the base offense levels for those crimes (and subsequently sought com ment on whether the amendment should be applied retroactively). See 72 Fed. Reg. 28,571-28,573 (2007); id. at 41,794-41,795. That amend ment will take effect on November 1, 2007, unless it is modified or dis approved by Congress. See 28 U.S.C. 994(p). The amendment is dis cussed in further detail at p. 38 n.12, infra.

3 See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *5 (3d Cir. July 20, 2007); United States v. Leatch, 482 F.3d 790, 791-792 (5th Cir. 2007) (per curiam), petition for cert. pending, No. 06-12046 (filed June 21, 2007); United States v. Spears, 469 F.3d 1166, 1176-1178 (8th Cir. 2006) (en banc), petition for cert. pending, No. 06-9864 (filed Mar. 2, 2007); United States v. Castillo, 460 F.3d 337, 361 (2d Cir. 2006); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); United States v. Williams, 456 F.3d 1353, 1369 (11th Cir. 2006), cert. dismissed, 127 S. Ct. 3040 (2007); United States v. Eura, 440 F.3d 625, 633-634 (4th Cir. 2006), petition for cert. pending, No. 05-11659 (filed June 20, 2006); United States v. Pho, 433 F.3d 53, 64 (1st Cir. 2006); see also United States v. McCullough, 457 F.3d 1150, 1172 (10th Cir. 2006) (dictum), cert. denied, 127 S.Ct. 988 (2007). By contrast, the District of Columbia Circuit has held that a district court errs when it concludes that it lacks discretion to consider the 100:1 ratio in imposing sentence. See United States v. Pickett, 475 F.3d 1347, 1351-1356 (2007), petition for cert. pending, No. 07-218 (filed Aug. 20, 2007). The Third Circuit had similarly held in United States v. Gunter, 462 F.3d 237 (2006), but it qualified that holding in United States v. Ricks, supra, by making clear that a sentencing court cannot categorically replace the 100:1 ratio with one of its own.

4 Occasionally, Congress has provided explicit guidance about the exercise of judicial discretion in sentencing within a range. For example, in 27 U.S.C. 91 (1934), Congress provided that, in sentencing within the five-year maximum for certain violations of the Prohibition laws, "it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize viola tions of the law." Guidance of that type reflects only what it is implicit in Congress's provision of a sentencing range, i.e., that courts should graduate sentences within the range according to the degree of the defendant's culpability. Indeed, "the only rational purpose in prescrib ing maximum and minimum penalties is to enable just such discrimina tion, and, so far as human judgment can effect it, to fit the punishment to the particular offense." Foster v. United States, 47 F.2d 892, 892-893 (7th Cir. 1931). Accordingly, Foster rejected a claim that Congress's direction to the sentencing court in former Section 91 infringed the right to jury trial, explaining that "[t]he judge who, having power and discretion to fix the penalty within the prescribed statutory limits, would not in all circumstances discriminate between casual or slight violations and those which are more serious, would be unworthy of his high office." Id. at 892.

5 That is not to say that there will always be a conflict between specific and general statutes, because the Section 3553(a) factors them selves accommodate the specific judgments of Congress concerning, inter alia, "the seriousness of the offense." 18 U.S.C. 3553(a)(2)(A).

6 As this Court recently explained in Rita v. United States, 127 S. Ct. 2456 (2007), "appellate 'reasonableness' review merely asks whether the trial court abused its discretion." Id. at 2465. A disagreement with a congressional policy determination constitutes a legal error giving rise to an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996) (noting that "[t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal con clusions"); Rita, 127 S. Ct. at 2483 n.6 (Scalia, J., concurring) (explain ing that reasonableness review "includes the limiting of sentencing factors to permissible ones").

7 Of course, as the United States noted in its brief in Gall (at 37 n.11), the nature and specificity of policy judgments in the Guidelines can also inform the substantive reasonableness review envisioned by Booker and Rita. A policy-based variance from the Guidelines is not entitled to as much deference on reasonableness review as a fact-based variance.

8 The 100:1 ratio refers only to the relative quantities necessary to trigger the same sentences for trafficking crimes involving crack and powder cocaine, not to the relative sentences imposed for crimes in volving the same quantity. See Pho, 433 F.3d at 55 n.2. Although the sentence for a crime involving a given quantity of crack cocaine is typically substantially longer than the sentence for a crime involving the same quantity of powder cocaine, that disparity is invariably much smaller than 100:1. See ibid. (citing United States Department of Justice, Federal Cocaine Offenses: An Analysis of Crack and Powder Penalties 19 (2002) <www.usdoj.gov/olp/pdf/crack_powder2002.pdf>); United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 12-14 (2007) (2007 Report).

9 The Commission used the same ratios in devising the drug equiv alency table, which is used where (as here) a defendant is respon- sible for quantities of multiple drugs. See Guidelines § 2D1.1 comment. (n.10).

10 The Sentencing Commission had issued its proposed amendment in response to a congressional directive to provide a report that "address[es] the differences in penalty levels that apply to different forms of cocaine and include any recommendations that the Commis sion may have for retention or modification of such differences in penalty levels." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280006, 108 Stat. 2097.

11 Cf. H.R. Rep. No. 460, 103d Cong., 2d Sess. 5 (1994) (noting that, under "safety valve" provision, the least culpable offenders would re ceive two-year sentences, and "[the] Guideline ranges for other of fenders would be expected to increase progressively, in proportion to indicia of culpability or seriousness, from the floor of the two year guideline range").

12 Earlier this year, the Sentencing Commission again recommended that Congress alter the ratio used in establishing the statutory minimum sentences for crack-cocaine offenses, although the Commis sion made no specific recommendation. See 2007 Report 8. In doing so, the Commission reiterated that "establishing federal cocaine sentencing policy, as underscored by past actions, ultimately is Congress's prero gative." Id. at 9. The Commission simultaneously proposed an amend ment to the Guidelines that would lower base offense levels for crack- cocaine offenses by two levels (and make conforming changes to the drug equivalency table)-with the result that, at quantities that trigger a statutory minimum sentence, the statutory minimum sentence would fall near the top, rather than at the bottom, of the resulting Guidelines sentencing range. See 72 Fed. Reg. 28,571-28,573 (2007). Although the Commission makes no reference in its accompanying report to the effect of the proposed amendment on the ratio, the amendment imple ments a ratio of powder to crack cocaine that varies (at different offense levels) from 25:1 to 80:1. That amendment will take effect on November 1, 2007, unless it is modified or disapproved by Congress. See 28 U.S.C. 994(p). Should Congress allow the amendment to take effect, it could apply in this case only if it were made retroactive, see 18 U.S.C. 3582(c)(2); 18 U.S.C. 3742(g)(1) (Supp. IV 2004); 72 Fed. Reg. 41,794- 41,795 (2007) (requesting comment on proposal to make amendment retroactive), and if it were held to be valid, see LaBonte, 520 U.S. at 757.

13 While petitioner shrinks from that suggestion, see Br. 32 & n.9, one of his amici embraces it. See ACLU Br. 24 ("If, for example, the sentencing court believes that the 100:1 ratio does not * * * 'reflect the seriousness of the offense,' 18 U.S.C. § 3553(a)(2), but does believe that a 20:1 ratio would carry out this purpose of sentencing, then the court should be able to follow this Congressional directive and impose a sentence that takes that alternative ratio as a starting point for con sidering the offender-specific aspects of § 3553(a).").

14 Petitioner and his amici contend (Pet. Br. 44; NAACP Br. 4-13; NACDL Br. 23-24; Sentencing Project Br. 22-23) that the 100:1 powder-to-crack ratio disproportionately imposes longer sentences on minorities (especially blacks). Cf. 2007 Report 15-16 (noting that, as of 2006, 81.8% of crack-cocaine offenders are black, 8.8% are white, and 8.4% are Hispanic, whereas 57.5% of powder-cocaine offenders are Hispanic, 27.0% are black, and 14.3% are white). Petitioner and his amici do not contend, however, that use of the 100:1 powder-to-crack ratio would be unconstitutional on that basis, and all of the courts of appeals have long since rejected similar contentions. See, e.g., United States v. Johnson, 40 F.3d 436, 439-441 (D.C. Cir. 1994), cert. denied, 514 U.S. 1041 (1995); United States v. Singleterry, 29 F.3d 733, 741 (1st Cir.), cert. denied, 513 U.S. 1048 (1994); United States v. Moore, 54 F.3d 92, 96-99 (2d Cir. 1995), cert. denied, 516 U.S. 1081 (1996); United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992), cert. denied, 507 U.S. 1010 and 507 U.S. 1011 (1993); United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied, 512 U.S. 1242 (1994); United States v. Watson, 953 F.2d 895, 897-898 (5th Cir.), cert. denied, 504 U.S. 928 (1992); United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993), cert. denied, 511 U.S. 1043 (1994); United States v. Chandler, 996 F.2d 917, 918-919 (7th Cir. 1993) (per curiam); United States v. Lattimore, 974 F.2d 971, 975-976 (8th Cir. 1992), cert. denied, 507 U.S. 1020 (1993); United States v. Coleman, 24 F.3d 37, 38-39 (9th Cir.), cert. denied, 513 U.S. 901 (1994); United States v. Angulo-Lopez, 7 F.3d 1506, 1508-1509 (10th Cir. 1993), cert. denied, 511 U.S. 1041 (1994); United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992) (per curiam).

15 Petitioner contends (Br. 34 n.11) that there is "no practical differ ence" between the above standard and the standard under 18 U.S.C. 3553(b)(1) (Supp. IV 2004), the provision excised by Booker. That con tention lacks merit. Under Section 3553(b)(1), a court could depart from the otherwise mandatory Guidelines range only if it found a fact not adequately taken into account by the Guidelines; under the above standard, a court can vary from the Guidelines range based on any fact or reasonable policy determination, other than a policy determination inconsistent with Congress's determination concerning the 100:1 ratio.

 

APPENDIX

 

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

1. The Sixth Amendment to the United States Consti tution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been pre viously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory pro cess for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

2. Section 3553 of Title 18 of the United States Code (2000 & Supp. IV 2004) provides:

Imposition of a sentence

(a) FACTORS TO BE CONSIDERED IN IMPOSING A SEN TENCE.-The court shall impose a sentence sufficient, but not greater than necessary, to comply with the pur poses set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be im posed, shall consider-

(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 of fense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to crimi nal 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 manner;

(3) the kinds of sentences available;

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

(A) the applicable category of offense commit ted 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 Commis sion 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 supervised release, the applicable guidelines or policy statements issued by the Sentencing Com mission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments 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 amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement-

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regard less 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.1

(6) the need to avoid unwarranted sentence dis parities 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.

(b) APPLICATION OF GUIDELINES IN IMPOSING A SENTENCE.-

(1) In general.

Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or miti gating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentenc ing Commission in formulating the guidelines that should result in a sentence different from that de scribed. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy state ments, and official commentary of the Sentencing Commission. In the absence of an applicable sen tencing guideline, the court shall impose an appropri ate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an appli cable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence im posed to sentences prescribed by guidelines applica ble to similar offenses and offenders, and to the ap plicable policy statements of the Sentencing Com mission.

(2) Child crimes and sexual offenses

(A)2 Sentencing

In sentencing a defendant convicted of an of fense under section 1201 involving a minor victim, an offense under section 1591, or an offense un der chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless-

(i) the court finds that there exists an ag gravating circumstance of a kind, or to a de gree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;

(ii) the court finds that there exists a miti gating circumstance of a kind or to a degree, that-

(I) has been affirmatively and specifi cally identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued un der section 994(a) of title 28, taking ac count of any amendments to such sentenc ing guidelines or policy statements by Congress;

(II) has not been taken into consider ation by the Sentencing Commission in formulating the guidelines; and

(III) should result in a sentence differ ent from that described; or

(iii) the court finds, on motion of the Gov ernment, that the defendant has provided sub stantial assistance in the investigation or pros ecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consider ation by the Sentencing Commission in formu lating the guidelines that should result in a sentence lower than that described.

In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applica ble to similar offenses and offenders, and to the applica ble policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.

(c) STATEMENT OF REASONS FOR IMPOSING A SEN TENCE.-The court, at the time of sentencing, shall state in open court the reasons for its imposition of the partic ular sentence, and, if the sentence-

(1) is of the kind, and within the range, described in subsection (a)(4) and that range exceeds 24 months, the reason for imposing a sentence at a par ticular point within the range; or

(2) is not of the kind, or is outside the range, de scribed in subsection (a)(4), the specific reason for the imposition of a sentence different from that de scribed, which reasons must also be stated with spec ificity in the written order of judgment and commit ment, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such state ments were so received and that it relied upon the content of such statements.

If the court does not order restitution, or orders only partial restitution, the court shall include in the state ment the reason therefor. The court shall provide a transcription or other appropriate public record of the court's statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,,3 and, if the sentence includes a term of imprisonment, to the Bureau of Pris ons.

(d) PRESENTENCE PROCEDURE FOR AN ORDER OF NOTICE.-Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defen dant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall-

(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;

(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and

(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its de terminations regarding the nature of such an order.

 

Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not un duly complicate or prolong the sentencing process.

(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY MINIMUM.-Upon motion of the Government, the court shall have the authority to im pose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's sub stantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guide lines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.-Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 944, 846) or section 1010 or 103 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pur suant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommenda tion, that-

(1) the defendant does not have more than 1 criminal history point, as determined under the sen tencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dan gerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defen dant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the informa tion shall not preclude a determination by the court that the defendant has complied with this require ment.

3. Section 841 of Title 21 of the United States Code (2000 & Supp. IV 2004) provides:

Prohibited acts

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsec tion (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving-

(i) 1 kilogram or more of a mixture or sub stance containing a detectable amount of heroin;

(ii) 5 kilograms or more of a mixture or sub stance containing a detectable amount of-

(I) coca leaves, except coca leaves and ex tracts of coca leaves from which cocaine, ec gonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which contains any quantity of any of the sub stances referred to in subclauses (I) through (III);

(iii) 50 grams or more of a mixture or sub stance described in clause (ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance con taining a detectable amount of phencyclidine (PCP);

(v) 10 grams or more of a mixture or sub stance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or sub stance containing a detectable amount of N-phenyl- N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or 100 grams or more of a mixture or substance con taining a detectable amount of any analogue of N- phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propana mide;

(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of mari huana, or 1,000 or more marihuana plants regardless of weight; or

(viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a de tectable amount of methamphetamine, its salts, iso mers, or salts of its isomers;

such person shall be sentenced to a term of imprison ment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of impris onment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accor dance with the provisions of Title 18, or $8,000,000 if the defendant is an individual or $20,000,000 if the defen dant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accor dance with the preceding sentence. Notwithstanding section 3583 of Title 18, any sentence under this sub paragraph shall, in the absence of such a prior convic tion, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this sub paragraph shall be eligible for parole during the term of imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section involving-

(i) 100 grams or more of a mixture or sub stance containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or sub stance containing a detectable amount of-

(I) coca leaves, except coca leaves and ex tracts of coca leaves from which cocaine, ec gonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, iso mers, and salts of isomers; or

(IV) any compound, mixture, or preparation which contains any quantity of any of the sub stances referred to in subclauses (I) through (III);

(iii) 5 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance con taining a detectable amount of phencyclidine (PCP);

(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 40 grams or more of a mixture or sub stance containing a detectable amount of N-phenyl- N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or 10 grams or more of a mixture or substance con taining a detectable amount of any analogue of N- phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or sub stance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight; or

(viii) 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detect able amount of methamphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprison ment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury re sults from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provi sions of Title 18, or $2,000,000 if the defendant is an indi vidual or $5,000,000 if the defendant is other than an individual, or both. If any person commits such a viola tion after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or se rious bodily injury results from the use of such sub stance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accor dance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defen dant is other than an individual, or both. Notwithstand ing section 3583 of Title 18, any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on pro bation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.

(C) In the case of a controlled substance in sched ule I or II, gamma hydroxybutyric acid (including when scheduled as an approved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in subpara graphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprison ment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in ac cordance with the provisions of Title 18, or $1,000,000 if the defendant is an individual or $5,000,000 if the defen dant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Ti tle 18, or $2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior convic tion, impose a term of supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence.

(D) In the case of less than 50 kilograms of mari huana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil or in the case of any controlled substance in schedule III (other than gamma hydroxy butyric acid), or 30 milligrams of flunitrazepam, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of impris onment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provi sions of Title 18, or $250,000 if the defendant is an indi vidual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a viola tion after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accor dance with the provisions of Title 18, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior convic tion, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

(2) In the case of a controlled substance in schedule IV, such person shall be sentenced to a term of impris onment of not more than 3 years, a fine not to exceed the greater of that authorized in accordance with the provi sions of Title 18, or $250,000 if the defendant is an indi vidual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a viola tion after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant sub stances, have become final, such person shall be sen tenced to a term of imprisonment of not more than 6 years, a fine not to exceed the greater of twice that au thorized in accordance with the provisions of Title 18, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior con viction, impose a term of supervised release of at least one year in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule V, such person shall be sentenced to a term of imprison ment of not more than one year, a fine not to exceed the greater of that authorized in accordance with the provi sions of Title 18, or $100,000 if the defendant is an indi vidual or $250,000 if the defendant is other than an indi vidual, or both. If any person commits such a violation after one or more convictions of him for an offense pun ishable under this paragraph, or for a crime under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, mari huana, or depressant or stimulant substances, have be come final, such persons shall be sentenced to a term of imprisonment of not more than 2 years, a fine not to ex ceed the greater of twice that authorized in accordance with the provisions of Title 18, or $200,000 if the defen dant is an individual or $500,000 if the defendant is other than an individual, or both.

(4) Notwithstanding paragraph (1)(D) of this sub section, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.

(5) Any person who violates subsection (a) of this section by cultivating or manufacturing a controlled sub stance on Federal property shall be imprisoned as pro vided in this subsection and shall be fined any amount not to exceed-

(A) the amount authorized in accordance with this section;

(B) the amount authorized in accordance with the provisions of Title 18;

(C) $500,000 if the defendant is an individual; or

(D) $1,000,000 if the defendant is other than an individual;

or both.

(6) Any person who violates subsection (a), or at tempts to do so, and knowingly or intentionally uses a poison, chemical, or other hazardous substance on Fed eral land, and, by such use-

(A) creates a serious hazard to humans, wildlife, or domestic animals,

(B) degrades or harms the environment or natu ral resources, or

(C) pollutes an aquifer, spring, stream, river, or body of water,

shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

(7) PENALTIES FOR DISTRIBUTION.-

(A) IN GENERAL.-Whoever, with intent to com mit a crime of violence, as defined in section 16 of Title 18 (including rape), against an individual, vio lates subsection (a) of this section by distributing a controlled substance or controlled substance ana logue to that individual without that individual's knowledge, shall be imprisoned not more than 20 years and fined in accordance with Title 18.

(B) DEFINITION.-For purposes of this para graph, the term "without that individual's knowl edge" means that the individual is unaware that a substance with the ability to alter that individual's ability to appraise conduct or to decline participation in or communicate unwillingness to participate in conduct is administered to the individual.

(c) Offenses involving listed chemicals

Any person who knowingly or intentionally-

(1) possesses a listed chemical with intent to manufacture a controlled substance except as autho rized by this subchapter;

(2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a con trolled substance except as authorized by this subchapter; or

(3) with the intent of causing the evasion of the recordkeeping or reporting requirements of section 830 of this title, or the regulations issued under that section, receives or distributes a reportable amount of any listed chemical in units small enough so that the making of records or filing of reports under that section is not required;

shall be fined in accordance with Title 18 or imprisoned not more than 20 years in the case of a violation of para graph (1) or (2) involving a list I chemical or not more than 10 years in the case of a violation of this subsection other than a violation of paragraph (1) or (2) involving a list I chemical, or both.

 

(d) Boobytraps on Federal property; penalties; "booby trap" defined

(1) Any person who assembles, maintains, places, or causes to be placed a boobytrap on Federal property where a controlled substance is being manufactured, distributed, or dispensed shall be sentenced to a term of imprisonment for not more than 10 years or fined under Title 18, or both.

(2) If any person commits such a violation after 1 or more prior convictions for an offense punishable under this subsection, such person shall be sentenced to a term of imprisonment of not more than 20 years or fined un der Title 18, or both.

(3) For the purposes of this subsection, the term "boobytrap" means any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammunition, or explosive devices attached to trip wires or other trigger ing mechanisms, sharpened stakes, and lines or wires with hooks attached.

(e) Ten-year injunction as additional penalty

In addition to any other applicable penalty, any per son convicted of a felony violation of this section relating to the receipt, distribution, manufacture, exportation, or importation of a listed chemical may be enjoined from engaging in any transaction involving a listed chemical for not more than ten years.

(f) Wrongful distribution or possession of listed chemi cals

(1) Whoever knowingly distributes a listed chemical in violation of this subchapter (other than in violation of a recordkeeping or reporting requirement of section 830 of this title) shall, except to the extent that paragraph (12), (13), or (14) of section 842(a) of this title applies, be fined under Title 18 or imprisoned not more than 5 years, or both.

(2) Whoever possesses any listed chemical, with knowledge that the recordkeeping or reporting require ments of section 830 of this title have not been adhered to, if, after such knowledge is acquired, such person does not take immediate steps to remedy the violation shall be fined under Title 18 or imprisoned not more than one year, or both.

4. Public L. No. 104-38, 109 Stat. 334, provides:

SECTION 1. DISAPPROVAL OF AMENDMENTS RE LATING TO LOWERING OF CRACK SEN TENCES AND SENTENCES FOR MONEY LAUNDERING AND TRANSACTIONS IN PROPERTY DERIVED FROM UNLAW FUL ACTIVITY.

In accordance with section 994(p) of title 28, United States Code, amendments numbered 5 and 18 of the "Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary", submitted by the United States Sentencing Commission to Congress on May 1, 1995, are hereby disapproved and shall not take effect.

SECTION 2. REDUCTION OF SENTENCING DISPAR ITY.

(a) RECOMMENDATIONS.-

(1) IN GENERAL.-The United States Sentencing Commission shall submit to Congress recommenda tions (and an explanation therefor), regarding changes to the statutes and sentencing guidelines governing sentences for unlawful manufacturing, importing, exporting, and trafficking of cocaine, and like offenses, including unlawful possession, posses sion with intent to commit any of the forgoing of fenses, and attempt and conspiracy to commit any of the forgoing offenses. The recommendations shall reflect the following considerations-

(A) the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine;

(B) high-level wholesale cocaine traffickers, organizers, and leaders, of criminal activities should generally receive longer sentences than low-level retail cocaine traffickers and those who played a minor or minimal role in such criminal activity;

(C) if the Government establishes that a de fendant who traffics in powder cocaine has knowl edge that such cocaine will be converted into crack cocaine prior to its distribution to individ ual users, the defendant should be treated at sen tencing as though the defendant had trafficked in crack cocaine; and

(D) an enhanced sentence should generally be imposed on a defendant who, in the course of an offense described in this subsection-

(i) murders or causes serious bodily injury to an individual;

(ii) uses a dangerous weapon;

(iii) uses or possesses a firearm;

(iv) involves a juvenile or a woman who the defendant knows or should know to be pregnant;

(v) engages in a continuing criminal en terprise or commits other criminal offenses in order to facilitate his drug trafficking activi ties;

(vi) knows, or should know, that he is involving an unusually vulnerable person;

(vii) restrains a victim;

(viii) traffics in cocaine within 500 feet of a school;

(ix) obstructs justice;

(x) has a significant prior criminal re cord; or

(xi) is an organizer or leader of drug trafficking activities involving five or more persons.

(2) RATIO.-The recommendations described in the preceding subsection shall propose revision of the drug quantity ratio of crack cocaine to pow der cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objec tives set forth in section 3553(a) of title 28 United States Code.

(b) STUDY.-No later than May 1, 1996, the Depart ment of Justice shall submit to the Judiciary Commit tees of the Senate and House of Representatives a re port on the charging and plea practices of Federal pros ecutors with respect to the offense of money laundering. Such study shall include an account of the steps taken or to be taken by the Justice Department to ensure consis tency and appropriateness in the use of the money laun dering statute. The Sentencing Commission shall sub mit to the Judiciary Committees comments on the study prepared by the Department of Justice.

5. Section 2D1.1 of the United States Sentencing Com mission Guidelines provides in relevant part:

§ 2D1.1. Unlawful Manufacturing, Importing, Export ing, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of con viction establishes that death or seri ous bodily injury resulted from the use of the substance and that the de fendant committed the offense after one or more prior convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of con viction establishes that death or seri ous bodily injury resulted from the use of the substance; or

(3) the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.

(2) If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly sched uled commercial air carrier was used to import or export the controlled sub stance, or (B) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels. If the resulting offense level is less than level 26, increase to level 26.

(3) If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels.

(4) If (A) the offense involved the impor tation of amphetamine or metham phetamine or the manufacture of am phetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under § 3B1.2 (Mitigating Role), increase by 2 levels.

(5) If the defendant, or a person for whose conduct the defendant is ac countable under § 1B1.3 (Relevant Conduct), distributed a controlled substance through mass-marketing by means of an interactive computer ser vice, increase by 2 levels.

(6) If the offense involved the distribution of an anabolic steroid and a masking agent, increase by 2 levels.

(7) If the defendant distributed an anabo lic steroid to an athlete, increase by 2 levels.

(8) (Apply the greater):

(A) If the offense involved (i) an un lawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.

(B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) cre ated a substantial risk of harm to (I) human life other than a life described in subdivision (C); or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, in crease to level 27.

(C) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) cre ated a substantial risk of harm to the life of a minor or an incompe tent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30.

(9) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsec tion (a) of § 5C1.2 (Limitation on Ap plicability of Statutory Minimum Sen tences in Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following pages.]

(d) Cross References

(1) If a victim was killed under circum stances that would constitute murder under 18 U.S.C. § 1111 had such kill ing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate, if the result ing offense level is greater than that determined under this guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of distributing a controlled substance with intent to commit a crime of violence), apply § 2X1.1 (Attempt, Solicitation, or Con spiracy) in respect to the crime of vio lence that the defendant committed, or attempted or intended to commit, if the resulting offense level is greater than that determined above.

(e) Special Instruction

(1) If (A) subsection (d)(2) does not apply; and (B) the defendant committed, or attempted to commit, a sexual offense against another individual by distrib uting, with or without that individual's knowledge, a controlled substance to that individual, an adjustment under § 3A1.1(b)(1) shall apply.

(c) DRUG QUALITY TABLE

 

 

Controlled Substances and Quantity*

Base Offense Level

(1)

o 30 KG or more of Heroin; o 150 KG or more of Cocaine; o 1.5 KG or more of Cocaine Base; o 30 KG or more of PCP, or 3 KG or more of PCP (actual); o 15 KG or more of Methamphetamine, or 1.5 KG or more of Methamphetamine (actual), or 1.5 KG or more of "Ice"; o 15 KG or more of Amphetamine, or 1.5 KG or more of

Amphetamine (actual); o 300 G or more of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o 12 KG or more of Fentanyl; o 3 KG or more of a Fentanyl Analogue; o 30,000 KG or more of Marihuana; o 6,000 KG or more of Hashish; o 600 KG or more of Hashish Oil; o 30,000,000 units or more of Schedule I or II Depressants; o 1,875,000 units or more of Flunitrazepam.

Level 38

(2)

o At least 10 KG but less than 30 KG of Heroin; o At least 50 KG but less than 150 KG of Cocaine; o At least 500 G but less than 1.5 KG of Cocaine Base; o At least 10 KG but less than 30 KG of PCP, or at least 1 KG but less than 3 KG of PCP (actual); o At least 5 KG but less than 15 KG of Methamphetamine, or at least 500 G but less than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 1.5 KG of "Ice"; o At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less than 1.5 KG of Amphetamine (actual);

o At least 100 G but less than 300 G of LSD (or the equiva- lent amount of other Schedule I or II Hallucinogens); o At least 4 KG but less than 12 KG of Fentanyl; o At least 1 KG but less than 3 KG of a Fentanyl Analogue; o At least 10,000 KG but less than 30,000 KG of Marihuana; o At least 2,000 KG but less than 6,000 KG of Hashish; o At least 200 KG but less than 600 KG of Hashish Oil; o At least 10,000,000 but less than 30,000,000 units of Sched- ule I or II Depressants; o At least 625,000 but less than 1,875,000 units of Flunitrazepam.

Level 36

 

(3)

o At least 3 KG but less than 10 KG of Heroin; o At least 15 KG but less than 50 KG of Cocaine; o At least 150 G but less than 500 G of Cocaine Base; o At least 3 KG but less than 10 KG of PCP, or at least 300 G but less than 1 KG of PCP (actual); o At least 1.5 KG but less than 5 KG of Methamphetamine, or at least 150 G but less than 500 G of Methamphetamine (actual), or at least 150 G but less than 500 G of "Ice"; o At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less than 500 G of Amphetamine (actual); o At least 30 G but less than 100 G of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o At least 1.2 KG but less than 4 KG of Fentanyl; o At least 300 G but less than 1 KG of a Fentanyl Analogue; o At least 3,000 KG but less than 10,000 KG of Marihuana; o At least 600 KG but less than 2,000 KG of Hashish; o At least 60 KG but less than 200 KG of Hashish Oil; o At least 3,000,000 but less than 10,000,000 units of Schedule I or II Depressants; o At least 187,500 but less than 625,000 units of Flunitrazepam.

Level 34

(4)

o At least 1 KG but less than 3 KG of Heroin; o At least 5 KG but less than 15 KG of Cocaine; o At least 50 G but less than 150 G of Cocaine Base;

o At least 1 KG but less than 3 KG of PCP, or at least 100 G but less than 300 G of PCP (actual); o At least 500 G but less than 1.5 KG of Methamphetamine, or at least 50 G but less than 150 G of Methamphetamine (actual), or at least 50 G but less than 150 G of "Ice"; o At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less than 150 G of Amphetamine (actual); o At least 10 G but less than 30 G of LSD; o At least 400 G but less than 1.2 KG of Fentanyl; o At least 100 G but less than 300 G of a Fentanyl Analogue; o At least 1,000 KG but less than 3,000 KG of Marihuana; o At least 200 KG but less than 600 KG of Hashish; o At least 20 KG but less than 60 KG of Hashish Oil; o At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants; o At least 62,500 but less than 187,500 units of

Flunitrazepam.

Level 32

(5)

o At least 700 G but less than 1 KG of Heroin; o At least 3.5 KG but less than 5 KG of Cocaine; o At least 35 G but less than 50 G of Cocaine Base; o At least 700 G but less than 1 KG of PCP, or at least 70 G but less than 100 G of PCP (actual); o At least 350 G but less than 500 G of Methamphetamine, or at least 35 G but less than 50 G of Methamphetamine

(actual), or at least 35 G but less than 50 G of "Ice"; o At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less than 50 G of Amphetamine (actual); o At least 7 G but less than 10 G of LSD; o At least 280 G but less than 400 G of Fentanyl; o At least 70 G but less than 100 G of a Fentanyl Analogue; o At least 700 KG but less than 1,000 KG of Marihuana; o At least 140 KG but less than 200 KG of Hashish; o At least 14 KG but less than 20 KG of Hashish Oil;

o At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants; o At least 43,750 but less than 62,500 units of Flunitrazepam.

Level 30

 

(6)

o At least 400 G but less than 700 G of Heroin; o At least 2 KG but less than 3.5 KG of Cocaine; o At least 20 G but less than 35 G of Cocaine Base; o At least 400 G but less than 700 G of PCP, or at least 40 G but less than 70 G of PCP (actual); o At least 200 G but less than 350 G of Methamphetamine, or at least 20 G but less than 35 G of Methamphetamine

(actual), or at least 20 G but less than 35 G of "Ice"; o At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less than 35 G of Amphetamine (actual); o At least 4 G but less than 7 G of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o At least 160 G but less than 280 G of Fentanyl; o At least 40 G but less than 70 G of a Fentanyl Analogue; o At least 400 KG but less than 700 KG of Marihuana; o At least 80 KG but less than 140 KG of Hashish; o At least 8 KG but less than 14 KG of Hashish Oil; o At least 400,000 but less than 700,000 units of Schedule I or II Depressants; o At least 25,000 but less than 43,750 units of Flunitrazepam.

Level 28

(7)

o At least 100 G but less than 400 G of Heroin; o At least 500 G but less than 2 KG of Cocaine; o At least 5 G but less than 20 G of Cocaine Base; o At least 100 G but less than 400 G of PCP, or at least 10 G but less than 40 G of PCP (actual);

 

 

o At least 50 G but less than 200 G of Methamphetamine,

or at least 5 G but less than 20 G of Methamphetamine (actual), or at least 5 G but less than 20 G of "Ice";

o At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 20 G of Amphetamine (actual);

o At least 1 G but less than 4 G of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o At least 40 G but less than 160 G of Fentanyl; o At least 10 G but less than 40 G of a Fentanyl Analogue; o At least 100 KG but less than 400 KG of Marihuana; o At least 20 KG but less than 80 KG of Hashish; o At least 2 KG but less than 8 KG of Hashish Oil; o At least 100,000 but less than 400,000 units of Schedule I or II Depressants; o At least 6,250 but less than 25,000 units of Flunitrazepam.

Level 26

 

(8)

o At least 80 G but less than 100 G of Heroin; o At least 400 G but less than 500 G of Cocaine; o At least 4 G but less than 5 G of Cocaine Base; o At least 80 G but less than 100 G of PCP, or at least 8 G but less than 10 G of PCP (actual); o At least 40 G but less than 50 G of Methamphetamine, or at least 4 G but less than 5 G of Methamphetamine (actual), or at least 4 G but less than 5 G of "Ice"; o At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 5 G of Amphetamine (actual); o At least 800 MG but less than 1 G of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o At least 32 G but less than 40 G of Fentanyl; o At least 8 G but less than 10 G of a Fentanyl Analogue; o At least 80 KG but less than 100 KG of Marihuana; o At least 16 KG but less than 20 KG of Hashish; o At least 1.6 KG but less than 2 KG of Hashish Oil; o At least 80,000 but less than 100,000 units of Schedule I or II Depressants; o At least 5,000 but less than 6,250 units of Flunitrazepam.

Level 24

 

(9)

o At least 60 G but less than 80 G of Heroin; o At least 300 G but less than 400 G of Cocaine; o At least 3 G but less than 4 G of Cocaine Base;

o At least 60 G but less than 80 G of PCP, or at least 6 G but less than 8 G of PCP (actual); o At least 30 G but less than 40 G of Methamphetamine, or at least 3 G but less than 4 G of Methamphetamine (actual), or at least 3 G but less than 4 G of "Ice"; o At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 4 G of Amphetamine (actual); o At least 600 MG but less than 800 MG of LSD (or the equiv- alent amount of other Schedule I or II Hallucinogens); o At least 24 G but less than 32 G of Fentanyl; o At least 6 G but less than 8 G of a Fentanyl Analogue; o At least 60 KG but less than 80 KG of Marihuana; o At least 12 KG but less than 16 KG of Hashish; o At least 1.2 KG but less than 1.6 KG of Hashish Oil; o At least 60,000 but less than 80,000 units of Schedule I or II Depressants; o At least 3,750 but less than 5,000 units of Flunitrazepam.

Level 22

(10)

o At least 40 G but less than 60 G of Heroin; o At least 200 G but less than 300 G of Cocaine; o At least 2 G but less than 3 G of Cocaine Base; o At least 40 G but less than 60 G of PCP, or at least 4 G but less than 6 G of PCP (actual); o At least 20 G but less than 30 G of Methamphetamine, or at least 2 G but less than 3 G of Methamphetamine (actual), or at least 2 G but less than 3 G of "Ice"; o At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 3 G of Amphetamine (actual); o At least 400 MG but less than 600 MG of LSD (or the equiv- alent amount of other Schedule I or II Hallucinogens); o At least 16 G but less than 24 G of Fentanyl; o At least 4 G but less than 6 G of a Fentanyl Analogue; o At least 40 KG but less than 60 KG of Marihuana; o At least 8 KG but less than 12 KG of Hashish; o At least 800 G but less than 1.2 KG of Hashish Oil; o At least 40,000 but less than 60,000 units of Schedule I or II Depressants; o 40,000 or more units of Schedule III substances; o At least 2,500 but less than 3,750 units of Flunitrazepam.

Level 20

 

(11)

o At least 20 G but less than 40 G of Heroin; o At least 100 G but less than 200 G of Cocaine; o At least 1 G but less than 2 G of Cocaine Base; o At least 20 G but less than 40 G of PCP, or at least 2 G but less than 4 G of PCP (actual); o At least 10 G but less than 20 G of Methamphetamine, or at least 1 G but less than 2 G of Methamphetamine (actual), or at least 1 G but less than 2 G of "Ice"; o At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 2 G of Amphetamine (actual); o At least 200 MG but less than 400 MG of LSD; o At least 8 G but less than 16 G of Fentanyl; o At least 2 G but less than 4 G of a Fentanyl Analogue; o At least 20 KG but less than 40 KG of Marihuana; o At least 5 KG but less than 8 KG of Hashish; o At least 500 G but less than 800 G of Hashish Oil; o At least 20,000 but less than 40,000 units of Schedule I or II Depressants; o At least 20,000 but less than 40,000 units of Schedule III substances; o At least 1,250 but less than 2,500 units of Flunitrazepam.

Level 18

(12)

o At least 10 G but less than 20 G of Heroin; o At least 50 G but less than 100 G of Cocaine; o At least 500 MG but less than 1 G of Cocaine Base;

o At least 10 G but less than 20 G of PCP, or at least 1 G but less than 2 G of PCP (actual);

o At least 5 G but less than 10 G of Methamphetamine, or

at least 500 MG but less than 1 G of Methamphetamine

(actual), or at least 500 MG but less than 1 G of "Ice"; o At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less than 1 G of Amphetamine (actual); o At least 100 MG but less than 200 MG of LSD; o At least 4 G but less than 8 G of Fentanyl; o At least 1 G but less than 2 G of a Fentanyl Analogue; o At least 10 KG but less than 20 KG of Marihuana; o At least 2 KG but less than 5 KG of Hashish; o At least 200 G but less than 500 G of Hashish Oil; o At least 10,000 but less than 20,000 units of Schedule I or II Depressants; o At least 10,000 but less than 20,000 units of Schedule III substances; o At least 625 but less than 1,250 units of Flunitrazepam.

Level 16

 

(13)

o At least 5 G but less than 10 G of Heroin; o At least 25 G but less than 50 G of Cocaine; o At least 250 MG but less than 500 MG of Cocaine Base; o At least 5 G but less than 10 G of PCP, or at least 500 MG but less than 1 G of PCP (actual); o At least 2.5 G but less than 5 G of Methamphetamine, or at least 250 MG but less than 500 MG of Methamphetamine (actual), or at least 250 MG but less than 500 MG of "Ice"; o At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less than 500 MG of Amphetamine (actual); o At least 50 MG but less than 100 MG of LSD; o At least 2 G but less than 4 G of Fentanyl; o At least 500 MG but less than 1 G of a Fentanyl Analogue; o At least 5 KG but less than 10 KG of Marihuana; o At least 1 KG but less than 2 KG of Hashish; o At least 100 G but less than 200 G of Hashish Oil; o At least 5,000 but less than 10,000 units of Schedule I or II Depressants; o At least 5,000 but less than 10,000 units of Schedule III substances; o At least 312 but less than 625 units of Flunitrazepam.

Level 14

 

(14)

o Less than 5 G of Heroin; o Less than 25 G of Cocaine; o Less than 250 MG of Cocaine Base; o Less than 5 G of PCP, or less than 500 MG of PCP (actual);

o Less than 2.5 G of Methamphetamine, or less than 250 MG of Methamphetamine (actual), or less than 250 MG of "Ice"; o Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine (actual); o Less than 50 MG of LSD (or the equivalent amount of other Schedule I or II Hallucinogens); o Less than 2 G of Fentanyl; o Less than 500 MG of a Fentanyl Analogue; o At least 2.5 KG but less than 5 KG of Marihuana; o At least 500 G but less than 1 KG of Hashish; o At least 50 G but less than 100 G of Hashish Oil; o At least 2,500 but less than 5,000 units of Schedule I or II Depressants; o At least 2,500 but less than 5,000 units of Schedule III substances; o At least 156 but less than 312 units of Flunitrazepam; o 40,000 or more units of Schedule IV substances (except Flunitrazepam).

Level 12

(15)

o At least 1 KG but less than 2.5 KG of Marihuana; o At least 200 G but less than 500 G of Hashish; o At least 20 G but less than 50 G of Hashish Oil; o At least 1,000 but less than 2,500 units of Schedule I or II Depressants; o At least 1,000 but less than 2,500 units of Schedule III substances; o At least 62 but less than 156 units of Flunitrazepam; o At least 16,000 but less than 40,000 units of Schedule IV substances (except Flunitrazepam).

Level 10

(16)

o At least 250 G but less than 1 KG of Marihuana; o At least 50 G but less than 200 G of Hashish; o At least 5 G but less than 20 G of Hashish Oil; o At least 250 but less than 1,000 units of Schedule I or II

Depressants; o At least 250 but less than 1,000 units of Schedule III

substances; o Less than 62 units of Flunitrazepam; o At least 4,000 but less than 16,000 units of Schedule IV

substances (except Flunitrazepam); o 40,000 or more units of Schedule V substances.

Level 8

 

(17)

o Less than 250 G of Marihuana; o Less than 50 G of Hashish; o Less than 5 G of Hashish Oil; o Less than 250 units of Schedule I or II Depressants; o Less than 250 units of Schedule III substances; o Less than 4,000 units of Schedule IV substances (except

Flunitrazepam); o Less than 40,000 units of Schedule V substances.

Level 6

 

[notes to drug quantity table omitted]

* * * * *

COMMENTARY

APPLICATION NOTES

* * * * *

10. The Commission has used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. § 841(b)(1)), as the primary basis for the guideline sentences. The statute, however, provides direction only for the more common controlled sub stances, i.e., heroin, cocaine, PCP, methamphet amine, fentanyl, LSD and marihuana. In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table, determine the base offense level as follows:

(A) Use the Drug Equivalency Tables to convert the quantity of the controlled substance in volved in the offense to its equivalent quan tity of marihuana.

(B) Find the equivalent quantity of marihuana in the Drug Quantity Table.

(C) Use the offense level that corresponds to the equivalent quantity of marihuana as the base offense level for the controlled substance in volved in the offense.

(See also Application Note 5.) For example, in the Drug Equivalency Tables set forth in this Note, 1 gm of a sub stance containing oxymorphone, a Schedule I opiate, converts to an equivalent quantity of 5 kg of marihuana. In a case involving 100 gm of oxymorphone, the equiva lent quantity of marihuana would be 500 kg, which corre sponds to a base offense level of 28 in the Drug Quantity Table.

The Drug Equivalency Tables also provide a means for combining differing controlled substances to obtain a single offense level. In each case, convert each of the drugs to its marihuana equivalent, add the quantities, and look up the total in the Drug Quantity Table to ob tain the combined offense level.

For certain types of controlled substances, the mari huana equivalencies in the Drug Equivalency Tables are "capped" at specified amounts (e.g., the combined equiva lent weight of all Schedule V controlled substances shall not exceed 999 grams of marihuana). Where there are controlled substances from more than one schedule (e.g., a quantity of a Schedule IV substance and a quantity of a Schedule V substance), determine the marihuana equiv alency for each schedule separately (subject to the cap, if any, applicable to that schedule). Then add the mari huana equivalencies to determine the combined mari huana equivalency (subject to the cap, if any, applicable to the combined amounts).

Note: Because of the statutory equivalences, the ratios in the Drug Equivalency Tables do not necessarily reflect dosages based on pharmacological equivalents.

Examples:

a. The defendant is convicted of selling 70 grams of a substance containing PCP (Level 22) and 250 milli grams of a substance containing LSD (Level 18). The PCP converts to 70 kilograms of marihuana; the LSD converts to 25 kilograms of marihuana. The total is therefore equivalent to 95 kilograms of marihuana, for which the Drug Quantity Table provides an offense level of 24.

b. The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diaze pam (Level 8). The diazepam, a Schedule IV drug, is equivalent to 625 grams of marihuana. The to tal, 1.125 kilograms of marihuana, has an offense level of 10 in the Drug Quantity Table.

c. The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14). The cocaine is equivalent to 16 kilo grams of marihuana. The total is therefore equiva lent to 21 kilograms of marihuana, which has an offense level of 18 in the Drug Quantity Table.

d. The defendant is convicted of selling 56,000 units of a Schedule III substance, 100,000 units of a Sched ule IV substance, and 200,000 units of a Schedule V substance. The marihuana equivalency for the Schedule III substance is 56 kilograms of mari huana (below the cap of 59.99 kilograms of mari huana set forth as the maximum equivalent weight for Schedule III substances). The marihuana equivalency for the Schedule IV substance is sub ject to a cap of 4.99 kilograms of marihuana set forth as the maximum equivalent weight for Sched ule IV substances (without the cap it would have been 6.25 kilograms). The marihuana equivalency for the Schedule V substance is subject to the cap of 999 grams of marihuana set forth as the maximum equivalent weight for Schedule V substances (with out the cap it would have been 1.25 kilograms). The combined equivalent weight, determined by adding together the above amounts, is subject to the cap of 59.99 kilograms of marihuana set forth as the max imum combined equivalent weight for Schedule III, IV, and V substances. Without the cap, the com bined equivalent weight would have been 61.99 (56 + 4.99 + .999) kilograms.

DRUG EQUIVALENCY TABLES

 

Schedule I or II Opiates*


1 gm of Heroin =
1 kg of marihuana
1 gm of Alpha-Methylfentanyl =
10 kg of marihuana
1 gm of Dextromoramide =
670 gm of marihuana
1 gm of Dipipanone =
250 gm of marihuana
1 gm of 3-Methylfentanyl =
10 kg of marihuana
1 gm of 1-Methyl-4-phenyl-4- propionoxypiperidine/MPPP =

700 gm of marihuana
1 gm of 1-(2-Phenylethyl)-4-phenyl-4- acetyloxypiperidine/PEPAP =

700 gm of marihuana
1 gm of Alphaprodine =
100 gm of marihuana
1 gm of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propana- mide) =


2.5 kg of marihuana
1 gm of Hydromorphone/Dihydro-
morphinone =

2.5 kg of marihuana
1 gm of Levorphanol =
2.5 kg of marihuana
1 gm of Meperidine/Pethidine =
50 gm of marihuana
1 gm of Methadone =
500 gm of marihuana
1 gm of 6-Monoacetylmorphine =
1 kg of marihuana
1 gm of Morphine =
500 gm of marihuana
1 gm of Oxycodone (actual) =
6700 gm of marihuana
1 gm of Oxymorphone =
5 kg of marihuana
1 gm of Racemorphan =
800 gm of marihuana
1 gm of Codeine =
80 gm of marihuana
1 gm of Dextropropoxy phene/Propoxyphene-Bulk =

50 gm of marihuana
1 gm of Ethylmorphine =
165 gm of marihuana
1 gm of Hydrocodone/Dihydroco-
deinone =

500 gm of marihuana
1 gm of Mixed Alkaloids of Opium/ Papaveretum =

250 gm of marihuana
1 gm of Opium =
50 gm of marihuana
1 gm of Levo-alpha-acetylmethadol
(LAAM) =

3 kg of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in com bination with another controlled substance, is level 12.


Cocaine and Other Schedule I and II Stimulants (and their immedi ate precursors)*
1 gm of Cocaine =
200 gm of marihuana
1 gm of N-Ethylamphetamine =
80 gm of marihuana
1 gm of Fenethylline =
40 gm of marihuana
1 gm of Amphetamine =
2 kg of marihuana
1 gm of Amphetamine (Actual) =
20 kg of marihuana
1 gm of Methamphetamine =
2 kg of marihuana
1 gm of Methamphetamine (Actual) =
20 kg of marihuana
1 gm of "Ice" =
20 kg of marihuana
1 gm of Khat =
.01 gm of marihuana
1 gm of 4-Methylaminorex
("Euphoria")=

100 gm of marihuana
1 gm of Methylphenidate (Ritalin)=
100 gm of marihuana
1 gm of Phenmetrazine =
80 gm of marihuana
1 gm Phenylacetone/P2P (when pos sessed for the purpose of manufacturing methamphetamine) =


416 gm of marihuana
1 gm Phenylacetone/P2P (in any other
case) =

75 gm of marihuana
1 gm of Cocaine Base ("Crack") =
20 kg of marihuana
1 gm of Aminorex =
100 gm of marihuana
1 gm of Methcathinone =
380 gm of marihuana
1 gm of N-N-Dimethylamphetamine =
40 gm of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in com bination with another controlled substance, is level 12.




LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*
1 gm of Bufotenine =
70 gm of marihuana
1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD =

100 kg of marihuana
1 gm of Diethyltryptamine/DET =
80 gm of marihuana
1 gm of Dimethyltryptamine/DMT =
100 gm of marihuana
1 gm of Mescaline =
10 gm of marihuana
1 gm of Mushrooms containing Psilocin and/or Psilocybin(Dry) =

1 gm of marihuana
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Wet) =

0.1 gm of marihuana
1 gm of Peyote (Dry) =
0.5 gm of marihuana
1 gm of Peyote (Wet) =
0.05 gm of marihuana
1 gm of Phencyclidine/PCP =
1 kg of marihuana
1 gm of Phencyclidine (actual) /PCP
(actual) =

10 kg of marihuana
1 gm of Psilocin =
500 gm of marihuana
1 gm of Psilocybin =
500 gm of marihuana
1 gm of Pyrrolidine Analog of Phencyclidine/PHP =

1 kg of marihuana
1 gm of Thiophene Analog of Phencyclidine/TCP =

1 kg of marihuana
1 gm of 4-Bromo-2,5- Dimethoxyamphetamine/DOB =

2.5 kg of marihuana
1 gm of 2,5-Dimethoxy-4- methylamphetamine/DOM =

1.67 kg of marihuana
1 gm of 3,4-Methylenedioxy amphetamine/MDA =

500 gm of marihuana
1 gm of 3,4-Methylenedioxy methamphetamine/MDMA =

500 gm of marihuana
1 gm of 3,4-Methylenedioxy-N- ethylamphetamine/MDEA=

500 gm of marihuana
1 gm of Paramethoxymethamphetamine/ PMA =

500 gm of marihuana
1 gm of 1-Piperidinocyclohexanecar bonitrile/PCC =

680 gm of marihuana
1 gm of N-ethyl-1- phenylcyclohexylamine (PCE) =

1 kg of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in com bination with another controlled substance, is level 12.


Schedule I Marihuana

1 gm of Marihuana/Cannabis, granu lated, powdered, etc. =

1 gm of marihuana
1 gm of Hashish Oil =
50 gm of marihuana
1 gm of Cannabis Resin or Hashish =
5 gm of marihuana
1 gm of Tetrahydrocannabinol,
Organic =

167 gm of marihuana
1 gm of Tetrahydrocannabinol, Syn-
thetic =

167 gm of marihuana


Flunitrazepam**

1 unit of Flunitrazepam =
16 gm of marihuana
**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in combination with any Schedule I or II depressants, Schedule III substances, Schedule IV substances, and Schedule V substances is level 8.




Schedule I or II Depressants (except gamma-hydroxybutyric acid)

1 unit of a Schedule I or II Depressant
(except gamma-hydroxybutyric acid) =


1 gm of marihuana


Gamma-hydroxybutyric Acid



1 ml of gamma-hydroxybutyric acid =
8.8 gm of marihuana


Schedule III Substances***



1 unit of a Schedule III Substance =
1 gm of marihuana
***Provided, that the combined equivalent weight of all Schedule III substances, Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 59.99 kilograms of mari huana.

Schedule IV Substances (except flunitrazepam)****


1 unit of a Schedule IV Substance
(except Flunitrazepam) =

0.0625 gm of marihuana
****Provided, that the combined equivalent weight of all Sched ule IV (except flunitrazepam) and V substances shall not exceed 4.99 kilograms of marihuana.


Schedule V Substances*****




1 unit of a Schedule V Substance =
0.00625 gm of mari huana

*****Provided, that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana.
List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)******


1 gm of Ephedrine =
10 kg of marihuana
1 gm of Phenylpropanolamine =
10 kg of marihuana
1 gm of Pseudoephedrine =
10 kg of marihuana
******Provided, that in a case involving ephedrine, pseudoephe drine, or phenylpropanolamine tablets, use the weight of the ephed rine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.
To facilitate conversions to drug equivalencies, the following table is provided:
MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm
1 lb = 453.6 gm
1 lb = 0.4536 kg
1 gal = 3.785 liters
1 qt = 0.946 liters
l gm = 1 ml (liquid)
1 liter - 1,000 ml
1 kg - 1,000 gm
1gm = 1,000 mg
1 grain = 64.8 mg.

* * * * *

Background: Offenses under 21 U.S.C. §§ 841 and 960 re ceive identical punishment based upon the quantity of the controlled substance involved, the defendant's criminal his tory, and whether death or serious bodily injury resulted from the offense.

The base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are propor tional to the levels established by statute, and apply to all unlawful trafficking. Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essen tial to provide a logical sentencing structure for drug of fenses. To determine these finer distinctions, the Commis sion consulted numerous experts and practitioners, includ ing authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity of these distinctions. Where neces sary, this scheme has been modified in response to specific congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guide line ranges with a lower limit as close to the statutory mini mum as possible; e.g., level 32 ranges from 121 to 151 months, where the statutory minimum is ten years or 120 months.

For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant, or the actual weight of the usable marihuana, whichever is greater. The decision to treat each plant as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana. In controlled substance offenses, an attempt is assigned the same offense level as the object of the attempt. Consequently, the Commission adopted the policy that each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except where the actual weight of the usable marihuana is greater.

Specific Offense Characteristic (b)(2) is derived from Section 6453 of the Anti-Drug Abuse Act of 1988.

Frequently, a term of supervised release to follow impris onment is required by statute for offenses covered by this guideline. Guidelines for the imposition, duration, and con ditions of supervised release are set forth in Chapter Five, Part D (Supervised Release).

Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled sub stance itself, the Commission has determined that basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among of fenses involving the same quantity of actual LSD (but differ ent carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP.

Consequently, in cases involving LSD contained in a carrier medium, the Commission has established a weight per dose of 0.4 milligram for purposes of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug En forcement Administration's standard dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign some weight to the carrier medium. Be cause LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity, and (B) the decision in Chapman v. United States, 111 S.Ct. 1919 (1991) (holding that the term "mixture or substance" in 21 U.S.C. § 841(b)(1) includes the carrier medium in which LSD is absorbed). At the same time, the weight per dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier medium with that for the same number of doses of PCP, a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. (Treating LSD on a carrier medium as weighing 0.5 milligram per dose would produce offense levels equivalent to those for PCP.) Thus, the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances and avoid an un due influence of varied carrier weight on the applicable of fense level. None the-less, this approach does not override the applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence (see Chap man; § 5G1.1(b)).

Subsection (b)(8)(A) implements the instruction to the Commission in section 303 of Public Law 103-237.

Subsections (b)(8)(B) and (C) implement, in a broader form, the instruction to the Commission in section 102 of Public Law 106-310.

 

1 So in original. The period probably should be a semicolon.

2 So in original. No subpar. (B) has been enacted.

3 So in original.