The opinion of the court was delivered by: John D. Bates United States District Judge
The sentencing of defendant John Doe*fn1 compels this Court to consider whether, in light of the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), federal district courts may impose sentences below the range suggested by the now-advisory United States Sentencing Guidelines solely to mitigate perceived sentencing disparities between defendants convicted of possessing or distributing cocaine base (crack) and those who are convicted of possessing or distributing a like quantity of powder cocaine. The Court is not altogether comfortable with a sentencing scheme that prescribes significantly lengthier sentences for crimes involving one type of cocaine than it does for crimes involving the same amount of the drug in another form, especially because the more severe crack penalties tend to fall disproportionally on street-level offenders and members of vulnerable populations. Nonetheless, the Court cannot deem such uneven treatment to create "unwarranted sentence disparities," within the meaning of the federal sentencing statute, 18 U.S.C. § 3553(a)(6), given Congress's repeated endorsement of harsher sanctions for crack offenders than for powder-cocaine offenders. To do so -- that is, to treat as similar that which Congress consistently has chosen to treat as dissimilar -- would effectively substitute this Court's policy judgment or preference for the considered judgment of Congress. Nothing in Booker confers such authority on federal courts. Nor does Booker undermine Congress's power to define offenses and fix criminal penalties or its concomitant authority to impose constraints on judicial discretion by specifying the factors that judges may consider at sentencing.*fn2 Assessment of the relevant sentencing factors, applied to the individual circumstances of this defendant, does not, the Court concludes, warrant a sentence below the advisory range set by the Guidelines. Thus, as explained below, the Court has sentenced defendant to a term of imprisonment that is consistent with the advisory Guidelines range as well as with unambiguous legislative directives.
Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine base and to possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. At a hearing held on January 23, 2006, the Court sentenced defendant to a term of imprisonment of 121 months. In doing so, the Court rejected several arguments by defendant for a reduced sentence, including his primary argument based on the crack-powder disparity, which the Court now explains more fully here.
I. Post-Booker Sentencing Regime
Booker inaugurated a new era in federal criminal sentencing. By excising those portions of the Federal Sentencing Act that obligated judges to adhere to the Sentencing Guidelines, the Supreme Court put in place a sentencing regime under which the Guidelines are now merely advisory. See 125 S.Ct. at 757. This remedy was crafted to cure a Sixth Amendment defect caused by the mandatory nature of the Guidelines.*fn3 Under the post-Booker system, "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 767. "[A] sentencing court is required 'to consider Guidelines ranges' applicable to the defendant, but is permitted 'to tailor the sentence in light of other statutory concerns as well.'" United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005) (quoting Booker, 125 S.Ct. at 757). Hence, as this Circuit has summarized, Booker's modification of the Federal Sentencing Act -- by severing and excising the mandatory Guidelines provisions --"'requires the sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp. 2004), but ... permits the court to tailor the sentencing in light of other statutory concerns as well, see § 3553(a) (Supp. 2004).'" United States v. Simpson, No. 04-3129, slip op. at 8 (D.C. Cir. Dec. 13, 2005) (quoting Booker, 125 S.Ct. at 757).
Specifically, the "other statutory concerns" are those specified in 18 U.S.C. § 3553(a), which instructs judges, "in determining the particular sentence to be imposed, [to] consider" the following factors (in addition to the Guidelines and the policy statements of the United States Sentencing Commission):
"the nature and circumstances of the offense and the history and characteristics of the defendant;"
the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence to criminal conduct, protect the public from further crimes by the defendant, and provide the defendant with rehabilitation, education and training, and other correctional treatment;
"the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;" and
the need to provide restitution to victims.
See 18 U.S.C. § 3553(a). Sentences are subject to review on appeal for "reasonableness" in light of the factors specified in section 3553(a). Booker, 125 S.Ct. at 765-66.*fn4
There is a broad consensus that Booker requires judges to engage in a two-step analysis to determine a reasonable sentence. "[A] district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in [18 U.S.C.] § 3553(a) before imposing the sentence." United States v. Clark, No. 05-4274, slip op. at 3 (4th Cir. Jan. 12, 2006) (quoting United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)); see also Mickelson, slip op. at 8 ("[C]alculation of the appropriate guideline sentence is only the first step in sentencing decisions under Booker, for the court must also consider the § 3553(a) factors before making its ultimate decision."); United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) ("[A]fter considering the Guidelines and all the other factors set forth in section 3553(a), [the sentencing judge should decide] whether (I) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence."). As it has in all ...