Legal, Policy and Training Division
TRAINING BRANCH
www.fd.org
This page provides resources that help explain the application of the new crack cocaine guidelines, and address issues that may arise in their retroactive application.
- Applying
the Crack Amendments 101 (November 1, 2007)
by National Federal Defender Sentencing Resource Counsel
This memorandum describes the 2007 crack cocaine amendments, how they work in cases sentenced on or after November 1, 2007, and points out anomalies within them. Note: This article includes analysis of the crack-to-marijuana equivalency table that has since been amended by the Commission (see discussion of drug equivalency table below).
- Mathematical
Anomalies Resulting from Drug Equivalency and Quantity Tables
When the USSC amended the crack cocaine guideline to reduce the base offense levels in November 2007, two separate types of mathematical anomalies resulted: (1) false equivalencies in poly-drug cases resulting from a new crack-to-marijuana equivalency table; and (2) within range-anomalies and differing ratios between crack and powder cocaine in the drug quantity table. The Commission has since remedied the first of these anomalies, by further amendment to the crack-to-marijuana equivalency table.
- Drug
Equivalency Table: In the original crack guideline amendments,
the Commission created a new separate table in the commentary to
USSG § 2D1.1, at Note 10(D), for converting crack to an “equivalent”
quantity of marijuana in cases involving crack and at least one
other drug. The table produced false equivalencies that, in some
cases, resulted in a base offense level no different than the pre-amendment
level. To correct these false equivalencies the Commission further
amended §2D1.1, effective May 1, 2008. This amendment
reinstates the pre-2007 drug equivalency table to provide that 1
gram of crack cocaine is equal to 20 kilograms of marijuana, and
then calls for a two-level decrease in the resulting offense level
after conversion to marijuana. A corresponding amendment to §1B1.10
renders the change to §2D1.1 retroactive. Attorneys who are
challenging §2D1.1 on its face may wish to study the history
of the mathematical problems with the equivalency table. Click here
to obtain Defender analysis and background information on this issue.
- Drug
Quantity Table: Currently, the lowest ratios incorporated
into the November 1, 2007 amendment drug quantity table of USSG
§2D1.1 only operate at base offense level 26. This results
in within range-anomalies and differing ratios between crack and
powder cocaine. For suggestions on how to argue against unwarranted
disparity still existing in crack cocaine sentencing as compared
to powder cocaine sentencing, click here.
- Drug
Equivalency Table: In the original crack guideline amendments,
the Commission created a new separate table in the commentary to
USSG § 2D1.1, at Note 10(D), for converting crack to an “equivalent”
quantity of marijuana in cases involving crack and at least one
other drug. The table produced false equivalencies that, in some
cases, resulted in a base offense level no different than the pre-amendment
level. To correct these false equivalencies the Commission further
amended §2D1.1, effective May 1, 2008. This amendment
reinstates the pre-2007 drug equivalency table to provide that 1
gram of crack cocaine is equal to 20 kilograms of marijuana, and
then calls for a two-level decrease in the resulting offense level
after conversion to marijuana. A corresponding amendment to §1B1.10
renders the change to §2D1.1 retroactive. Attorneys who are
challenging §2D1.1 on its face may wish to study the history
of the mathematical problems with the equivalency table. Click here
to obtain Defender analysis and background information on this issue.
- Statement
of A.J. Kramer at the February 12, 2008 U.S. Senate Hearing on Federal
Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
This testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. Click here for A.J. Kramer's Supplemental Statement, addressing DOJ's arguments against retroactive application of the crack cocaine amendments and refuting DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders.
- Statement
of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives
Hearing - Cracked Justice: Addressing the Unfairness in Cocaine Sentencing
Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security
This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee.
- 2007
USSC Report to Congress on Cocaine and Federal Sentencing Policy
In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.
- Guidance
to CJA Panel Attorneys
- Sample
Motions, Briefs and Orders
- BOP
Communications Affecting Inmates Eligible for Sentence Reductions Under
the Amended Crack Cocaine Guidelines
-
Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008)
by the Training Branch of the Office of Defender Services
This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions.
- Crack
Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February
18, 2008)
by Federal Public & Community Defenders
This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a prior article raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment (January 2, 2008).
- Commission
Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received
Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity
Sentence Reduction
The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker.However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For a transcript of the comments relevant to this issue from the St. Louis Crack Summit, click here.
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A Simple Solution to the False Equivalencies Produced by the New Crack-to-Marijuana Table in Cases Involving Retroactive Application of the Crack Amendment (March 18, 2008)
by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
This article addresses the mathematical problems created by the drug equivalency table in the November 1, 2007 amendments. These problems have since been addressed through the May 1, 2008 amendment of the table (see Drug Equivalency Table discussion for more information). This article was published in the April 2008 issue of The Champion.
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Text of Amended USSG §1B1.10 (as of November 1, 2007)
-
Redlined Version of Amended USSG §1B1.10
(indicating all changes between the November 1, 2007 amended version and the previous version of the guideline)
-
Chart Comparing Amended Version of USSG §1B1.10 with Previous Version
by National Federal Defender Sentencing Resource Counsel
This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief.
- Effective,
Efficient, and Fair Implementation of the Retroactive Amendment
(January 14, 2008)
Federal Defender Sentencing Guidelines Committee
This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 17-18 in Charlotte, N.C. It expresses the Defender community’s views with respect to (1) the right to counsel in crack retroactivity cases, and (2) the right for the defense bar to have equal access to the names of those who may benefit from retroactive application of the crack guidelines.
- Providing
Counsel to All Potentially Eligible Beneficiaries of the Retroactive
Crack Guideline Amendment Makes Sense and is Constitutionally Required
by National Federal Defender Sentencing Resource Counsel
This memorandum argues, contrary to positions taken by the Department of Justice and the Sentencing Commission, that defendants have a right to counsel in crack retroactivity cases under the Sixth Amendment and Due Process Clause.
- Selected
Retroactivity Caselaw
by National Federal Defender Sentencing Resource Counsel
This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 24-25 in St. Louis, MO. It addresses many issues that may arise in crack retroactivity cases, and provides caselaw and other support for a variety of arguments defense counsel may raise in handling such cases.
- Supplemental
Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing
on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder
Disparity
A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are “dangerous.”
- Memo
Regarding DOJ's Proposed Legislation to Repeal Crack Retroactivity
(February 8, 2008)
by the Defender Sentencing Guidelines Committee
The Attorney General has publicly declared the Department of Justice's intention to propose legislation that would repeal the retroactivity decisions of Congress and the Sentencing Commission. This memo lists reasons why Congress is unlikely to pass such legislation.
- Letter
from Defenders to the United States Sentencing Commission (November
21, 2007)
This letter outlines the Defender community’s opposition to the Commission’s decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10.
- Families
Against Mandatory Minimums
Check FAMM's web site for updated information on legislative developments regarding punishment for cocaine related offenses.
- FJC
Crack Cocaine Retroactivity Guideline Information Exchange
The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.