The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter came before the Court for a second resentencing on June 1, 2009. Defendant Anthony T. Lewis previously pled guilty to one count of a five-count indictment, each of which charged unlawful distribution of five grams or more of cocaine base. At the time of his plea, Mr. Lewis acknowledged that he was accountable for 187.7 grams of cocaine base, also known as crack cocaine. Mr. Lewis has 17 criminal history points and therefore his Criminal History Category is VI.
At the original sentencing on October 14, 2005, the Court applied a 20-to-1 crack-to-powder ratio rather than the 100-to-1 ratio contained in the Sentencing Guidelines. Had the Court applied the crack Guidelines as they existed on October 14, 2005, including the 100-to-1 ratio, Mr. Lewis would have been at Offense Level 31, Criminal History Category VI, resulting in a sentencing range of 188 to 235 months. At the first resentencing on December 21, 2007, the Court again applied a 20-to-1 ratio, even though the crack Guidelines had recently been amended in a way favorable to Mr. Lewis. (The amendments ameliorated the previous disparity, but not entirely. Applying them would have put Mr. Lewis at Offense Level 29, Criminal History Category VI, resulting in a sentencing range of 151 to 188 months.) By applying a 20-to-1 ratio at both sentencings, the Court reached the conclusion that Mr. Lewis was at Offense Level 27, Criminal History Category VI, which corresponded with a sentencing range of 130 to 162 months. For the reasons then explained, the Court sentenced Mr. Lewis to 162 months imprisonment -- that is, the high end of the range -- on both occasions.*fn1
At the second resentencing on June 1, 2009, as a matter of policy the Court adopted a new approach to sentencing in crack cocaine cases, an approach it will take in this case and in all future crack cocaine sentencings. Henceforth, this Court will apply a 1-to-1 crack-to-powder ratio and then, in appropriate cases, will vary upward to take account of any aggravating factors that may exist. This Opinion explains the Court's reasoning for adopting the new approach.
Shortly after the Supreme Court decided in United States v. Booker, 543 U.S. 220 (2005), that the United States Sentencing Guidelines are advisory only, this Court began to apply a 20-to-1 crack-to-powder ratio in crack cocaine sentencings. Recognizing that after Booker and under 18 U.S.C. § 3553(a) the Sentencing Guidelines were only one factor to consider in sentencing, this Court considered both the policy concerns underlying the crack/powder disparity and the Section 3553(a) factors as they applied to the individual being sentenced. The Court acknowledged that post-Booker the Sentencing Commission's expertise still entitled the Guidelines to serious consideration, see, e.g., Booker v. United States, 543 U.S. at 245; Gall v. United States, 128 S.Ct. 586, 596-97 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564 (2007), but concluded that in the case of crack cocaine the Commission's expertise was reflected not in the Guidelines themselves, but rather in the numerous reports on the crack/powder disparity the Commission issued between 1995 and 2007.
This Court's approach was endorsed by the D.C. Circuit in United States v. Pickett, 475 F.3d 1347 (D.C. Cir. 2007). In Pickett, the D.C. Circuit reviewed the history of the crack Guidelines and noted that the Sentencing Commission itself has been "one of [the] severest critics" of those Guidelines. Id. at 1353. Specifically, the court observed that "[f]or more than a dozen years," in numerous extensive reports, the Commission has argued strongly against retaining the 100-to-1 ratio. Id. at 1353-54. The court further noted the Commission's recommendation to substitute a 20-to-1 ratio, a recommendation on which Congress never acted. Id. at 1351. In the end, the D.C. Circuit not only concluded that sentencing judges have discretion under Booker to consider a 20-to-1 ratio -- rather than to apply rigidly the 100-to-1 ratio embodied in the crack Guidelines -- but suggested that it would be an abuse of discretion for a judge not to at least consider a 20-to-1 ratio. See id. at 1356.
Less than a year after the D.C. Circuit issued its opinion in Pickett, the Supreme Court announced its agreement with that approach in Kimbrough v. United States, 128 S.Ct. 558 (2007). Justice Ginsburg, writing for the Court, began by summarizing the history of the crack/powder disparity embodied in the 100-to-1 ratio. She noted that in formulating the crack Guidelines, the Sentencing Commission did not use its usual empirical approach, but rather employed the "weight-driven scheme" of Congress' 1986 Anti-Drug Abuse Act. In other words, the Commission set base offense levels for drug offenders by adopting the Act's 100-to-1 ratio throughout the crack and powder cocaine Guidelines. Id. at 567; see also id. at 575 (noting that "those Guidelines [therefore] do not exemplify the Commission's exercise of its characteristic institutional role"). This, the Court held, was not required by law. See id. at 571-72. Given the history of the crack Guidelines and the Commission's own view, reiterated on many occasions, that the crack/powder disparity produces disproportionately harsh sentences, the Supreme Court concluded that "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case." Id. at 575.
While it seemed clear from Kimbrough that courts had discretion to vary from the crack Guidelines based on the same sort of overarching policy disagreements expressed by the Sentencing Commission in its reports, and not just based on individualized factors in particular cases, there still were some courts that resisted that conclusion. This led to the most recent discussion of the matter by the Supreme Court in Spears v. United States, 129 S.Ct. 840 (2009) (per curiam). Kimbrough, the Court said in Spears, recognized the authority of district courts to vary from the crack Guidelines "based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." Id. at 843 (emphasis in original). The Court also quoted with approval the dissent in the Eighth Circuit's en banc decision in Spears. In that dissent, Judge Colloton recognized that in Kimbrough the Supreme Court had established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances -- no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation -- a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates "an unwarranted disparity within the meaning of § 3553(a)," and is "at odds with § 3553(a)." The only fact necessary to justify such a variance is the sentencing court's disagreement with the guidelines -- its policy view that the 100-to-1 ratio creates an unwarranted disparity.
United States v. Spears, 533 F.3d 715, 719 (8th Cir. 2008) (en banc) (Colloton, J., dissenting) (citations omitted).
In short, it now is established that a sentencing court may reject the 100-to-1 ratio of the Guidelines as a matter of policy and without regard to the characteristics of the individual defendant. But this raises another question: If the sentencing court rejects the 100-to-1 ratio, then what ratio should it apply? For reasons stated by this Court in this and other cases and by the D.C. Circuit in Pickett, this Court previously had adopted a 20-to-1 ratio and, in each case, explained its reasons for applying that ratio. For the reasons explained below, this Court now adopts a 1-to-1 crack-to-powder ratio, and will apply the 1-to-1 ratio in all crack cocaine cases that come before it for sentencing in the future. In other words, this Court will take precisely the approach endorsed by the Supreme Court in Spears:
A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant's sentence necessarily permits adoption of a replacement ratio. . . . [D]istrict courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.
Spears v. United States, 129 S.Ct. ...