.

Sentencing Levels for Crack and Powder
Cocaine: Kimbrough v. United States
and
the Impact of United States v. Booker

Brian T. Yeh
Legislative Attorney
April 5, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33318
CRS Report for Congress
P
repared for Members and Committees of Congress
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Sentencing Levels for Crack and Powder Cocaine

Summary
Pursuant to the Anti-Drug Abuse Act of 1986, Congress established basic sentencing levels for
crack cocaine offenses. Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in the
quantities of powder cocaine and crack cocaine that trigger a mandatory minimum penalty. As
amended, 21 U.S.C. § 841(b)(1)(A) requires a mandatory minimum 10-year term of
imprisonment and a maximum life term of imprisonment for trafficking offenses involving 5
kilograms of cocaine or 50 grams of cocaine base. In addition, 21 U.S.C. § 841(b)(1)(B)
establishes a mandatory 5-year term of imprisonment for offenses involving 500 grams of cocaine
or 5 grams of cocaine base. 21 U.S.C. § 844(a) calls for a 5-year mandatory minimum
punishment for simple possession of crack cocaine.
Federal sentencing guidelines (the Guidelines) established by the U.S. Sentencing Commission
reflect the statutory differential treatment of crack and powder cocaine offenders. Until 2005, the
Guidelines were binding on federal courts: the judge had discretion to sentence a defendant, but
only within the narrow sentencing range that the Guidelines provided. The Supreme Court in its
2005 opinion, United States v. Booker, declared that the Guidelines must be considered advisory
rather than mandatory, in order to comply with the Constitution. Instead of being bound by the
Guidelines, sentencing courts must treat the federal guidelines as just one of a number of
sentencing factors (which include the need to avoid undue sentencing disparity).
In the aftermath of Booker, some judges, who did not believe that crack cocaine is 100 times
worse than powder cocaine, imposed lower sentences on crack cocaine offenders than the ones
recommended by the Guidelines. However, many appellate courts reversed those judgments
because they thought sentencing courts could not depart from the Guidelines solely based on a
dissatisfaction with the 100:1 ratio. In 2007, the Supreme Court in Kimbrough v. United States
held that a court may impose a sentence below that called for under the Guidelines, based on its
conclusion that the 100:1 ratio is greater than necessary or may foster unwarranted disparity.
Also in 2007, the Sentencing Commission revised the Guidelines by lowering the base offense
level for crack cocaine offenses by two levels, thereby eliminating the 100:1 ratio for future
sentencing guideline purposes (except at the point at which the statutory mandatory minimums
are triggered). In addition, the Sentencing Commission decided to make these amendments
retroactively applicable, thus allowing eligible crack cocaine offenders who were sentenced prior
to November 1, 2007, to petition a federal judge to reduce their sentences. On March 30, 2010,
the Supreme Court heard oral argument in Dillon v. United States, in which it considered whether
Booker applies in a sentence modification proceeding that is based on the retroactive crack
cocaine amendment to the Guidelines. Nearly all of the federal circuit courts of appeals have
concluded that Booker does not give district courts authority to further reduce a crack cocaine
offender’s sentence in such proceedings below the retroactive, amended Guidelines range.
Legislation is required to change the statutory 100:1 ratio in crack/powder cocaine quantities that
trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1). Several bills have been
introduced in the 111th Congress, including H.R. 18, H.R. 265, H.R. 1459, H.R. 2178, and H.R.
3245, to eliminate the statutory disparity in cocaine sentencing. Another bill, H.R. 1466, would
repeal all statutory mandatory minimums for drug offenses. On March 17, 2010, the Senate
passed S. 1789, which would reduce the statutory 100:1 ratio to 18:1, by increasing the threshold
amount of crack cocaine necessary to trigger the mandatory minimum penalties to 28 grams (for
the 5-year sentence) and 280 grams (for the 10-year sentence).
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Contents
Background ................................................................................................................................ 1
United States v. Booker ............................................................................................................... 3
Booker and the Crack Defendant ................................................................................................. 6
Kimbrough v. United States ......................................................................................................... 8
Spears v. United States .......................................................................................................... 9
2007 Amendment of the Sentencing Guidelines......................................................................... 10
Retroactivity Decision......................................................................................................... 13
Case Law Applying the Retroactive Crack Cocaine Amendments ........................................ 13
Legislation in the 111th Congress ............................................................................................... 17

Appendixes
Appendix. Drug Quantity Table (Before and After Amendment) ................................................ 19

Contacts
Author Contact Information ...................................................................................................... 20
Acknowledgments .................................................................................................................... 20

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Background
In its 2005 opinion United States v. Booker,1 the U.S. Supreme Court declared that the once-
binding federal sentencing guidelines (the Guidelines) set by the United States Sentencing
Commission are now only advisory, in order to be compatible with the Sixth Amendment to the
Constitution.2 Until 2007, the Guidelines reflected a statutory scheme that made crack cocaine
defendants subject to the same sentence as those defendants trafficking in 100 times more powder
cocaine; thus, the sentences for crack cocaine offenses were three to over six times longer than
those for offenses involving equivalent amounts of powder cocaine.3 In the immediate aftermath
of Booker, federal courts disagreed about whether the 100:1 ratio produces disparities that justify
a sentence lower than that recommended by the Guidelines. The Supreme Court resolved that
issue in its 2007 opinion Kimbrough v. United States, by holding that a federal court may impose
a sentence below that called for under the Guidelines’ then-existing 100:1 ratio, based on its
conclusion that the ratio is greater than necessary or may foster unwarranted disparity.4
The pre-Booker era for federal sentencing began with the Sentencing Reform Act of 1984,5 which
established a sentencing system under the United States Sentencing Commission’s federal
sentencing guidelines.6 The previous system tailored sentences to the individual defendants.
Judges were given broad ranges within which they could, at their discretion, sentence a
defendant.7 The sentence was supposed to be based on the defendant’s character as much as his
conduct. Thereafter, the discretion given to the judge was passed on to the Parole Commission to
determine how much of the judge’s sentence the defendant ultimately served.8 Under the
Guidelines, the judge’s role at sentencing was more uniform and unvaried.9 The judge could
inquire into a number of factors, including the defendant’s conduct and criminal history. The
judge then weighed each factor according to the Sentencing Commission’s mandate and
calculated an offense level for the defendant.10 The judge had discretion to sentence the defendant
but, with little ground for departure, only within the narrow sentencing range that the Guidelines
provided for each offense level.11 The Sentencing Reform Act also abolished the Parole
Commission’s role.12

1 543 U.S. 220 (2005).
2 Id. at 245-46.
3 E.g., U.S.S.G. § 2D1.1(c)(1)(November 1, 2006)(both 150 kilograms of powder cocaine and 1.5 kilograms of cocaine
base were assigned a base offense level of 38); the same ratio continued throughout § 2D1.1(C) for lesser amounts and
lower base offense levels). Amendments that became effective on November 1, 2007, adjusted the ratios, U.S.S.G.
§ 2D1.1(c)(1) (November 1, 2007).
4 552 U.S. 85 (2007).
5 Sentencing Reform Act of 1984, 28 U.S.C. § 991(b)(1) (1988).
6 23 U.S.C. § 995(a)(20) (1988).
7 28 U.S.C. § 995(b) (1988).
8 28 U.S.C. § 995(a)(9-10) (1988).
9 28 U.S.C. § 994(w) (1988).
10 28 U.S.C. § 991(a)(1) (1988).
11 See 18 U.S.C. § 3553(b) (the statute specifies what departures are allowable in cases where “there exist an
aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines”).
12 P.L. 98-473, § 218(a)(5), 98 Stat. 2027 (1984).
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Crack cocaine became prevalent in the mid-1980s and received widespread media attention
following the death of the University of Maryland all-American basketball player, Len Bias, from
the use of cocaine.13 Crack cocaine was portrayed as a violence-inducing, highly addictive plague
of inner cities, and this notoriety led to the quick passage of a federal sentencing law concerning
crack cocaine in 1986.14 This legislation created two mandatory sentencing ranges for drug
offenses.15 The lower bracket spanned periods of imprisonment ranging from a mandatory
minimum of 5 years to a maximum of 40 years; the higher bracket spanned periods ranging from
a mandatory minimum of 10 years to a maximum of life.16 Congress prescribed the threshold
quantities of both crack and powdered cocaine required to bring a particular offense within either
bracket.17 Despite the chemical identity of crack and powder cocaine, Congress set widely
disparate threshold quantities for the two drugs, requiring 100 times more powder cocaine than
crack cocaine to trigger inclusion in a particular range.18 The rationale offered was that many
considered crack much more addictive than powder cocaine, and they feared a wave of violent
crimes spawned by drug users as well as the health threats to infants born to addicted mothers.19
The Sentencing Commission also incorporated this ratio into the drug guidelines, although it later
concluded that the 100:1 powder to crack ratio produces sentences that are greater than necessary
to satisfy the purposes of punishment because it exaggerates the relative harmfulness of crack
cocaine; the majority of crack offenders have low drug quantities, low criminal histories, and no
history of violence. The Sentencing Commission also concluded that a ratio providing for
sentences that are greater than necessary creates an unwarranted disparity, inappropriate
uniformity, racial disparity, and disrespect for the law.20
Over the years, Congress has had second thoughts about the disparity in drug sentences. To
achieve a more equitable balance, as part of the Violent Crime Control and Law Enforcement Act
of 1994, Congress enacted a safety valve provision, which provided an avenue for lowering
mandatory minimum sentences in a limited category of drug cases.21 During the same year,
Congress directed the Sentencing Commission to study the crack-to-powder ratio and submit

13 Keith Harriston and Sally Jenkins, Maryland Basketball Star Len Bias Is Dead at 22; Evidence of Cocaine Reported
Found
, WASH. POST, June 20, 1986, at A-1.
14 The sentencing differential for crack and powder cocaine offenses had its origin in the Anti-Drug Abuse Act of 1986,
P.L. 99-570, 100 Stat. 3207 (1986) (codified in pertinent part at 21 U.S.C. § 841). The act speaks of “cocaine base,” not
crack. See 21 U.S.C. § 841(b)(1)(A)(iii). The guidelines, however, define cocaine base to mean crack cocaine. See
United States Sentencing Guidelines (U.S.S.G.) § 2D1.1, n.D (November 1, 2007).
15 See id. § 1002 (codified at 21 U.S.C. § 841(b)(1)).
16 See id.
17 See id.
18 See id. Congress set the threshold quantities for the lower range at 500 grams of powder cocaine and 5 grams of
cocaine base and the threshold quantities for the higher range at 5 kilograms and 50 grams, respectively. Thus, for
sentencing purposes, Congress treated 1 unit of crack cocaine on the same level as 100 units of powder cocaine.
Relative to the difference between crack and powder cocaine—powder cocaine is derived from coca paste, which is in
turn derived from the leaves of the coca plant—crack cocaine is made by taking cocaine powder and cooking it with
baking soda and water until it forms a hard substance. These “rocks” can then be broken into pieces and sold in small
quantities. Each gram of powder cocaine produces approximately .89 grams of crack. United States Sentencing
Commission, Cocaine and Federal Sentencing Policy (May 2002).
19 See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy, at
117-118 (1995).
20 See United States Sentencing Commission, Cocaine and Federal Sentencing Policy, Executive Summary, at v-viii
(May 2002).
21 See 18 U.S.C. § 3553 (f); see also United States v. Matos, 328 F.3d 34, 38-42 (1st Cir. 2003) (a description of the
operation of the safety valve).
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recommendations relative to whether the ratio should be retained or modified.22 The Sentencing
Commission recommended revision of the 100:1 quantity ratio in 1995, finding the ratio to be
unjustified by the small differences in the two forms of cocaine.23 Congress rejected the
recommendation of the Sentencing Commission and did not change the law.24
Two years later, the Sentencing Commission issued a follow-up report.25 In this report, the
commission reiterated its position that the 100:1 ratio was excessive.26 It recommended that the
100:1 ratio be reduced to 5:1 by increasing the threshold quantities for offenses involving crack
cocaine and decreasing the threshold quantities for offenses involving powder cocaine.27 Again,
Congress took no action and did not amend the law.
In 2001, the Senate Judiciary Committee asked the Sentencing Commission to revisit its position
regarding the 100:1 ratio, and in the subsequent year, the Sentencing Commission issued its third
report.28 In this report, the commission again proposed narrowing the gap that separated crack
cocaine offenses from powder cocaine because (1) the severe penalties for crack cocaine offenses
seemed to fall mainly on low-level criminals and African Americans, (2) the dangers posed by
crack could be satisfactorily addressed through sentencing enhancements that would apply
neutrally to all drug offenses, and (3) recent data suggested that the penalties were
disproportionate to the harms associated with the two drugs.29 Unlike the previous report, the
Commission did not recommend a reduction in the powder cocaine threshold. The Commission
did recommend elimination of the 5-year mandatory minimum for simple possession of crack
cocaine. Congress considered the substance of the Commission’s 2002 report but took no action.
Judges have long been critical of the automatic prison terms, commonly referred to as mandatory
minimum sentences, which were enacted pursuant to the Anti-Drug Abuse Act of 1986 in part to
stem the drug trade.30
United States v. Booker
Prior to the Supreme Court’s decision in United States v. Booker,31 the case law was generally
cognizant of the seriousness in the sentencing disparities between crack and powder cocaine but
regularly deferred to Congress’s policy judgments.32 This undertaking led to a series of decisions

22 See Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, § 280006, 108 Stat. 1796, 2097 (1994).
23 See Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25,075-25,076
(May 10, 1995).
24 See P.L. 104-38, § 1, 109 Stat. 334, 334 (1995).
25 See U.S. Sentencing Commission, Cocaine and Federal Sentencing Policy (1997) (1997 Report).
26 Id. at 2.
27 Id. at 2, 5, 9.
28 See United States Sentencing Commission, Cocaine and Federal Sentencing Policy (2002), at 2-3 (2002 Report).
29 Id. at v-viii.
30 Lynette Clemetson, Judges Look to New Congress for Changes in Mandatory Sentencing Laws, N.Y. TIMES, January
9, 2007, at A12.
31 543 U.S. 220 (2005).
32 See, e.g., United States v. Eirby, 262 F.3d 31, 41 (1st Cir. 2001); United States v. Singleterry, 29 F.3d 733, 741 (1st
Cir. 1994) ; United States v. Anderson, 82 F.3d 436, 440-41 (D.C. Cir. 1996); United States v. Dumas, 64 F.3d 1427,
1429-430 (9th Cir. 1995).
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that upheld the 100:1 ratio against a variety of challenges, which included the Equal Protection
Clause33 and the rule of lenity.34 It was also decided that under the mandatory guidelines system
that was popular before Booker, neither the Sentencing Commission’s criticism of the 100:1 ratio
nor its unacknowledged 1995 proposal to eliminate the differential provided a valid basis for
leniency in the sentencing of crack cocaine offenders.35
In Booker, the Supreme Court consolidated two lower court cases and considered them in tandem,
United States v. Fanfan36 and United States v. Booker.37 Booker was arrested after officers found
in his duffle bag 92.5 grams of crack cocaine. He later gave a written statement to the police in
which he admitted selling an additional 566 grams of crack cocaine.38 A jury in the United States
District Court for the Western District of Wisconsin found Booker guilty of two counts of
possessing at least 50 grams of cocaine base with the intent to distribute it, in violation of 21
U.S.C. § 841(b)(1)(A)(iii).39 At sentencing, the judge found by a preponderance of the evidence
that Booker had distributed 566 grams in addition to the 92.5 grams that the jury found; the judge
also found that Booker had obstructed justice.40 In the absence of the judge’s additional findings,
Booker would have only faced a maximum sentence of 262 months under the United States
Sentencing Guidelines.41 The judge, however sentenced Booker to 360 months, based on the
Guidelines’ treatment of the additional cocaine and the obstruction of justice.42 The United States
Court of Appeals for the Seventh Circuit affirmed the conviction but overturned the sentence.43
Narcotic agents arrested Fanfan when they discovered 1.25 kilograms of cocaine and 281.6 grams
of cocaine base in his vehicle.44 A jury in the District of Maine found that he possessed “500 or
more grams” of cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. At
sentencing, the court determined that Fanfan was the “ring leader of a significant drug
conspiracy,” which, combined with his criminal history, resulted in a sentence of 188 to 235
months under the Guidelines. However, four days before the June 28, 2004, sentencing hearing,
the Supreme Court decided Blakely v. Washington,45 holding that as part of a state sentencing
guideline system, a Washington state judge could not find an aggravating fact authorizing a
higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan

33 See, e.g., United States v. Graciani, 61 F.3d 70, 74-75 (1st Cir. 1995) ; United States v. Bingham, 81 F.3d 617, 630-
31 (6th Cir. 1996); United States v. Thomas, 86 F.3d 647, 655 (7th Cir. 1966).
34 See, e.g., United States v. Manzueta, 167 F.3d 92, 94 (1st Cir. 1999); United States v. Herron, 97 F.3d 234, 238-39
(8th Cir. 1996); United States v. Canales, 91 F.3d 363, 367-69 (2d Cir. 1996).
35 See United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996); United States v. Sanchez, 81 F.3d 9, 11 (1st Cir.
1996); United States v. Booker, 73 F.3d 706, 710 (7th Cir. 1996); United States v. Alton, 60 F.3d 1065, 1070-71 (3d
Cir. 1995); United States v. Haynes, 985 F.2d 65, 70 (2d Cir. 1993)(each discussing the possibility of a downward
departure under U.S.S.G. § 5K2.0). See generally, CRS Report 97-743, Federal Cocaine Sentencing: Legal Issues, by
Paul Starett Wallace Jr.
36 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 542 U.S. 956 (2004).
37 375 F.3d 508 (7th Cir. 2004), cert. granted, 542 U.S. 956 (2004).
38 Id.
39 Id.
40 Id.
41 Id. at 510.
42 Id.
43 Id. at 515.
44 United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28 2004).
45 542 U.S. 296 (2004).
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considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated
the Guidelines based only on the possession of 500 grams and imposed the 78 month maximum
for that range.
The Supreme Court granted certiorari in Booker and Fanfan in an effort to give some guidance to
lower courts that had begun a variety of applications of the Blakely decision to federal prisoners.
For example, in Booker, the Seventh Circuit found that the federal sentencing guidelines violate
the Sixth Amendment in some situations.46 The Fifth Circuit, on the other hand, concluded that
Blakely did not apply to the Guidelines because to do so would create a separate “offense” for
each possible sentence for a particular crime.47 The Second Circuit, without resolving the issue,
certified questions to the Supreme Court regarding the application of Blakely to federal sentences
pursuant to the Guidelines.48
The Supreme Court issued a majority opinion in two parts. The first part, written by Justice
Stevens for a 5-4 majority (Justices Scalia, Souter, Thomas, and Ginsburg) decided that the
Guidelines violate the Sixth Amendment and are thus unconstitutional because they require a
judge to increase a sentence above the maximum guideline range if the judge finds facts to justify
an increase. They said a defendant’s right to trial by jury is violated if a judge must impose a
higher sentence than the sentence that the judge could have imposed based on the facts found by
the jury.49 Pursuant to 18 U.S.C. § 3553(b), the Guidelines were mandatory and thus create a
statutory maximum for the purpose of Apprendi v. New Jersey, 530 U.S. 466 (2000), which had
condemned mandatory judicial fact-finding for purposes of imposing a sentence beyond the
statutory maximum.50 The Court had applied Apprendi’s reasoning to a state sentencing guideline
system in Blakely v. Washington, and the rationale applied with equal force to the federal
guideline system in Booker.51 Under the then current administration of the Guidelines, judges,
rather than juries, were required to find sentence determining facts, and thus the practice was
unconstitutional.
The second part, written by Justice Breyer for a different 5-4 majority (Justices Rehnquist,
O’Connor, Kennedy, and Ginsburg) remedies this defect by holding that the Guidelines are
advisory, thereby making it necessary for the courts to consider the Guidelines along with other
traditional factors when deciding on a sentence, and also finding that the appellant courts may
review sentences for “reasonableness.” Driven by the Court’s first holding, it “excises” (through
severance and excision of two provisions) 18 U.S.C. § 3553(b)(1) and § 3742(e) from the

46 United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004), judgment of the Court of Appeals aff’d and remanded;
judgment of the District Court vacated and remanded
, 543 U.S. 160 (2005).
47 United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004).
48 United States v. Penaranda, 375 F.3d 238 (2d Cir. 2004).
49 For example, the then-effective Guidelines required a defendant convicted by a jury of possession with intent to
distribute five grams of crack cocaine to be sentenced within a guideline range of 63 to 78 months. Prior to Booker, the
Guidelines required a judge to increase the sentence beyond that prescribed range if the judge found additional facts
(e.g., the presence of a gun, additional drug quantities, or a leadership role in the illegal activity). Each of these factual
findings required a new higher sentencing range. The Court said a judge may not go over the sentence at the top of the
Guideline range authorized by the jury—in this case 78 months—unless the jury finds the necessary facts for the higher
range or the defendant admits to them.
50 543 U.S. at 221. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
530 U.S. at 490.
51 Id. at 244.
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Sentencing Reform Act and declares the Guidelines are now “advisory.”52 Pursuant to § 3553(a),
district judges need only to “consider” the Guideline range as one of many factors, including the
need for the sentence to provide just punishment for the offense (§ 3553(a)(2)(A), to afford
adequate deterrence to criminal conduct (§ 3553(a)(2)(B), to protect the public from further
crimes of the defendant (§ 3553(a)(2)(C)), and to avoid unwarranted sentencing disparities among
similarly situated defendants (§ 3553(a) (6)).53 The Sentencing Reform Act, absent the mandate of
§ 3553(b)(1), authorizes the judge to apply his own perceptions of just punishment, deterrence,
and protection of the public, even when these differ from the perceptions of the United States
Sentencing Commission.54 The Sentencing Reform Act continues to provide for appeals from
sentencing decisions (regardless of whether the trial judge sentences are within or outside of the
Guideline range) based on an “unreasonableness” standard (18 U.S.C. §§ 3553(a)55 and
3742(e)(3)).56
Booker and the Crack Defendant
After Booker, the federal courts wrestled with whether they may or must impose sentences below
the Guidelines’ ranges in crack cocaine cases in view of the United States Sentencing
Commission’s conclusions and recommendations, the facts and circumstances of the case, the
history and characteristics of the defendant, and the command of 18 U.S.C. § 3553(a)(2)(6) to
avoid unwarranted sentencing disparity. Typically, the federal courts follow a three-step
sentencing procedure in which they determine “(1) the applicable advisory range under the
Sentencing Guidelines; (2) whether, pursuant to the Sentencing Commission’s policy statements,
any departures from the advisory guideline range clearly apply; and (3) the appropriate sentence
in light of the statutory factors to be considered in imposing a sentence.”57
An appellate court held that the federal courts are not compelled to lower a sentence
recommended by the Guidelines based on the sentencing differential for crack cocaine versus
powder cocaine.58 On the other hand, in more than a few cases, the application of Booker has led
to lower sentences than those suggested by the 100:1 ratio ranges established in the Guidelines.59

52 Id. at 246-247.
53 Id. at 260.
54 Id. at 234.
55 The primary directive in Section 3553(a) is for sentencing courts to “impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph 2.” Section 3553(a)(2) states that such purposes are
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
In determining the minimally sufficient sentence, § 3553(a) further directs sentencing courts to consider the following
factors: (A) “the nature and circumstances of the offense and the history and characteristics of the defendant”
(§ 3553(a)(1)); (B) the penological needs to be served by the sentence (§ 3553(2)); (C) “the kinds of sentences
available” (§ 3553(a)(3)); (D) “the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct” (§ 3553(a)(6)); and (E) “the need to provide restitution to any
victims of the offense.” (§ 3553(a)(7)).
56 543 U.S. at 261.
57 United States v. Beamon, 373 F. Supp.2d 878 (E.D. Wis. 2005).
58 United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005).
59 See United States v. Nellum, 2005 WL 300073 (N.D. Ind. February 3, 2005); United States v. Clay, 2005 WL
(continued...)
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In some cases, after considering the factors set forth in 18 U.S.C. § 3553(a), the courts found a
different ratio, either 20:1 or 10:1, more compatible with the statutory command of 18 U.S.C.
§ 3553(a)(6) to weigh the need to avoid unwarranted disparities.60
The Appellate courts were not so inclined to ignore the 100:1 ratio reflected in the then-existing
Guidelines. For instance, the First Circuit held that the district court could not discard the
guideline range and construct a new sentencing range,61 but could take into account, on a case-by-
case basis, “the nature of the contraband and/or the severity of a projected guideline sentence.”62
The First Circuit described the disparity as a “problem that has tormented enlightened observers
ever since Congress promulgated the 100:1 ratio” and “share[d] the district court’s concern about
the fairness of maintaining the across-the-board sentencing gap associated with the 100:1 crack-
to-powder ratio.”63 But to recapitulate, said the First Circuit, “we hold that the district court erred
... when it constructed a new sentencing range based on the categorical substitution of a 20:1
crack-to-powder ratio for the 100:1 embedded in the sentencing guidelines.”64 A panel in the
Fourth Circuit agreed:
[t]he principal question ... is whether a district court in the post-Booker world can vary from
the advisory sentencing range under the guidelines by substituting its own crack
cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by
Congress. For the reasons stated below, we conclude a court cannot.... [The] sentencing court
must identify the individual aspects of the defendant’s case that fit within the factors listed in
18 U.S.C. § 3553(a) and in reliance on those findings, impose a non-Guideline sentence that
is reasonable ... in arriving at a reasonable sentence, the court simply must not rely on a
factor that would result in a sentencing disparity that totally is at odds with the will of
Congress.65
The Fourth Circuit decision formed the basis for its later unpublished opinion in Kimbrough v.
United States
.66

(...continued)
1076243 (E.D. Tenn. 2005); United States v. Williams, 372 F. Supp.2d 1335 (M.D. Fla. 2005); Simon v. United States,
361 F. Supp.2d 35 (S.D.N.Y. 2005); United States v. Moreland, 366 F. Supp.2d 416 (S.D.W.Va. 2005), vac’d in part,
437 F.3d 424 (4th Cir. 2006).
60 See United States v. Smith, 359 F. Supp.2d 771 (E.D. Wis. 2005) (substituting a 20:1 ratio for the 100:1 ratio used in
the Guidelines); United States v. Leroy, 373 F.Supp.2d 887 (E.D. Wis. 2005) (20:1 ratio); United States v. Castillo,
2005 WL 1214280 (S.D.N.Y. May 20, 2005) (20:1 ratio); United States v. Perry, 389 F.Supp.2d 278 (D.R.I. 2005)
(20:1 ratio); United States v. Fisher, 451 F.Supp.2d 553 (S.D.N.Y. October 11, 2005) (10:1 ratio).
61 United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).
62 Id. at 65.
63 Id.
64 Id. at 64.
65 United States v. Eura, 440 F.3d 625, 627, 634 (4th Cir. 2006). Among some of the district courts, United States v.
Doe, 412 F.Supp.2d 87 (D.D.C. 2006), it was also observed that sentencing courts lack the authority to impose a
sentence below the applicable Guidelines range solely based on perceived disparities attributable to the crack
cocaine/powder cocaine sentencing differential; see also United States v. Tabor, 365 F. Supp.2d 1052 (D.Neb. 2005)
(No need for a departure, said the court, under pre-Booker theory, and no reason to vary or deviate from the crack
cocaine Guidelines based on defendant’s possession with intent to distribute 50 or more grams of crack cocaine,
thereby making him eligible imprisonment for 10 years to life under 21 U.S.C. § 841(b)(1)(A)); United States v.
Valencia-Aguirre, 409 F.Supp.2d 1358 (M.D. Fla. 2006).
66 174 Fed.Appx. 798 (4th Cir. May 9, 2006), cert. granted, 127 S.Ct. 2933 (2007).
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Kimbrough v. United States
Norfolk, VA, police arrested Derrick Kimbrough after they came upon him in the midst of what
appeared to be a curbside drug sale. At the time, they discovered more than $1,900 in cash, 56
grams of crack cocaine, and more than 60 grams of powder cocaine in his car.67 They also
recovered a loaded hand gun for which Kimbrough was holding a full magazine clip.68
Kimbrough subsequently pleaded guilty69 to federal charges for trafficking in more than 50 grams
of crack,70 trafficking in cocaine powder,71 conspiracy to traffic in crack,72 and possession of a
firearm during and in furtherance of a drug trafficking offense.73 He faced mandatory minimum
terms of imprisonment of 10 years on the crack trafficking charge and of 5 years on the gun
charge.74 The applicable sentencing guidelines called for a sentence of imprisonment in the range
of 168 to 210 months on the drug charges with an additional 60 months on the gun charge (to be
served consecutive to the drug charges for a range of imprisonment of 228 to 270 months).75
Kimbrough’s attorney apparently urged a departure from the Guideline’s recommended sentence
based on the Sentencing Commission’s dissatisfaction with the 100:1 ratio, Kimbrough’s military
service, the absence of any prior felony conviction, his employment record, and the suggestion
that federal involvement represented an instance of “sentence shopping” in what was otherwise a
state case.76
Under the facts before it, the district court considered the sentence recommended by the
Guidelines “ridiculous.”77 It sentenced Kimbrough to the statutory minimum of 180 months in
prison (10 years on the drug charges and 5 years on the gun charge).78 It did so in part because of

67 Brief for the United States at 10-11, Kimbrough v. United States, No. 06-6330 (2007)(U.S. Brief).
68 Id. at 11.
69 Kimbrough, 174 Fed.Appx. at 798.
70 21 U.S.C. § 841(a),(b)(1)(A)(iii).
71 21 U.S.C. § 841(a),(b)(1)(C).
72 21 U.S.C. §§ 846, 841(a),(b)(1)(A)(iii).
73 18 U.S.C. § 924(c)(1)(A)(i).
74 21 U.S.C. § 841(b)(1)(A), 18 U.S.C. § 924(c)(1)(A)(i).
75 Kimbrough, 174 Fed.Appx. at 798-99.
76 Brief of Petitioner at 9-10, Kimbrough v. United States, No. 06-6330 (2007)(Petitioner’s Brief). As for the sentence
shopping contention, drug trafficking is a crime under federal law and the laws of each of the states. Consequently,
most drug offenses can be tried in either state or federal court. In United States v. Armstrong, 517 U.S. 456 (1996), the
defendant argued unsuccessfully that the Constitution precluded an alleged practice under which minority crack
defendants were being federally prosecuted, while similarly situated white defendants faced only less severe state
prosecution. There the Court observed that a selective prosecution claimant “must demonstrate that the federal
prosecution policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To establish a
discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were
not prosecuted.” Id. at 465. Federal crack prosecutions have apparently been particularly prevalent in the Fourth
Circuit, see e.g., “Retroactivity for crack sentence cuts debated,” The National Law Journal at 4 (October 22,
2007)(citing Sentencing Commission statistics indicating that should the Commission’s recent crack cocaine
amendments be made retroactive the Fourth Circuit would have almost twice as many eligible prisoners as the next
highest Circuit and over nine times as many as the largest Circuit). Nevertheless, this hardly demonstrates selective
prosecution. Moreover, since state sentencing practices differ from state to state, requiring compatibility of federal and
state sentencing patterns within a given state would be at odds with the Guidelines’ underlying premise of uniform,
nationwide federal sentencing practices.
77 Petitioner’s Brief at 11.
78 Kimbrough, 174 Fed.Appx. at 799.
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the sentencing disparity for crack and powder cocaine.79 However, the Fourth Circuit Court of
Appeals vacated and remanded the sentence, consistent with its holding in United States v. Eura80
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 offenses.”81 On June 11, 2007,
the Supreme Court agreed to consider whether the district court abused its discretion when it
determined that in Kimbrough’s case the sentencing range recommended by the Guidelines would
be greater than necessary to serve the penological purposes described in 18 U.S.C. § 3553(a)(2)
and should not be controlling in light of the instruction in 18 U.S.C. § 3553(a)(6) to consider the
need to avoid unwarranted disparity among similarly situated defendants.82
On December 10, 2007, the Supreme Court reversed the Court of Appeals in a 7-2 ruling. Writing
for the majority, Justice Ginsburg held that although a district judge must respectfully consider
the Guidelines range as one factor (among many) in determining an appropriate sentence, the
judge has discretion to depart from the Guidelines based on the disparity between the Guidelines’
treatment of crack and powder cocaine offenses.83 As the Booker decision had made clear that the
Sentencing Guidelines—which include the cocaine Guidelines—are to be advisory only, the
Fourth Circuit Court of Appeals had erred in holding the crack/powder disparity “effectively
mandatory,” the Court explained.84 Furthermore, the Supreme Court concluded that the 180-
month sentence imposed on Kimbrough is reasonable given the particular circumstance of
Kimbrough’s case and that the district judge did not abuse his discretion in finding that the
crack/powder disparity is at odds with the objectives of sentencing set forth in 18 U.S.C. §
3553(a)(2).85
Spears v. United States
In a case that had been remanded by the Supreme Court for further consideration in light of
Kimbrough, the Eighth Circuit Court of Appeals held in United States v. Spears that district courts
“may not categorically reject the [crack-to-powder] ratio set forth by the Guidelines,” and that
“[n]othing in Kimbrough suggests the district court may substitute its own ratio for the ratio set
forth in the Guidelines.”86 On January 21, 2009, the Supreme Court issued a per curiam opinion
that summarily reversed the appellate court’s decision on remand, finding that the judgment
conflicted with Kimbrough.87 The Court stated that “with respect to the crack cocaine Guidelines,

79 Id. The district court apparently cited Kimbrough’s military and employment records, the fact he had no prior felony
convictions, and “the court specifically relied upon the fact that ‘the Sentencing Commission has recognized that crack
cocaine has not caused the damage that the Justice Department alleges it has and on its recognition of the
disproportionate and unjust effect that crack cocaine guidelines have in sentencing.’” Petitioner’s Brief at 11 (internal
citations omitted).
80 440 F.3d 625 (4th Cir. 2006).
81 Kimbrough, 174 Fed.Appx. at 799.
82 Kimbrough v. United States, cert. granted, 127 S.Ct. 2933 (2007).
83 Kimbrough v. United States, 552 U.S. 85, 90 (2007). In an opinion issued on the same day as Kimbrough, the
Supreme Court in Gall v. United States, 552 U.S. 38, 49 (2007) opined that while district courts must treat the
Guidelines as the “starting point and the initial benchmark,” they are not the only consideration. Furthermore, the Court
rejected the need for requiring district judges to demonstrate that “extraordinary” circumstances justify a sentence
outside the Guidelines range. Id. at 47.
84 Kimbrough, 552 U.S. at 91.
85 Id. at 111.
86 United States v. Spears, 533 F.3d 715, 717 (8th Cir. 2008).
87 Spears v. United States, 555 U.S. ___, 2009 U.S. LEXIS 864, No. 08-5721 (Jan. 21, 2009). Justice Kennedy would
(continued...)
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a categorical disagreement with and variance from the Guidelines is not suspect” and reiterated
that Kimbrough stands for the proposition that district courts have the “authority to vary from the
crack cocaine 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.”88 The
Supreme Court explained,
As a logical matter, of course, rejection of the 100:1 ratio, explicitly approved by
Kimbrough, necessarily implies adoption of some other ratio to govern the mine-run case. 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.89
In releasing the opinion in Spears v. United States, the Supreme Court sought to clarify its
holding in Kimbrough that had been misinterpreted by not only the Eighth Circuit Court of
Appeals, but the First and Third Circuits as well.90 The Court speculated that if the Eighth
Circuit’s restrictive interpretation of Kimbrough was correct, one of two things would likely
occur:
Either district courts would treat the Guidelines’ policy embodied in the crack-to-powder
ratio as mandatory, believing that they are not entitled to vary based on “categorical” policy
disagreements with the Guidelines, or they would continue to vary, masking their categorical
policy disagreements as “individualized determinations.” The latter is institutionalized
subterfuge. The former contradicts our holding in Kimbrough. Neither is an acceptable
sentencing practice.91
2007 Amendment of the Sentencing Guidelines
In May 2007, the United States Sentencing Commission submitted proposed amendments to the
Guidelines (including those applicable in Kimbrough) that essentially did away with the 100:1
ratio for purposes of the Guidelines (except at the point at which the statutory mandatory
minimums are triggered).92 It also recommended that Congress raise the thresholds for the
statutory mandatory minimums for trafficking in crack, thereby eliminating the statutory 100:1

(...continued)
have granted the petition for certiorari. Justice Thomas dissented without opinion. Chief Justice Roberts wrote a
dissenting opinion, joined by Justice Alito, in which he agreed that “there are cogent arguments that the Eighth
Circuit’s decision was contrary to” Kimbrough, but he did not feel that “any error is so apparent as to warrant the bitter
medicine of summary reversal.” Id. at *12 (Roberts, C.J., dissenting). He also commented: “Apprendi, Booker, Rita,
Gall,
and Kimbrough have given the lower courts a good deal to digest over a relatively short period. We should give
them some time to address the nuances of these precedents before adding new ones. As has been said, a plant cannot
grow if you constantly yank it out of the ground to see if the roots are healthy.” Id. at *15.
88 Id. at *5. (emphasis in original)
89 Id. at *7.
90 Id. at *11 (citing United States v. Russell, 537 F.3d 6, 11 (1st Cir. 2008); United States v. Gunter, 527 F.3d 282, 286
(3rd Cir. 2008)).
91 Id. at *8.
92 72 Fed. Reg. 28558 (May 21, 2007). A change in the statutory 100:1 ratio found in 21 U.S.C. § 841(b)(1) would
require congressional action.
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ratio.93 In making the decision to amend the Guidelines, the Commission sought to “somewhat
alleviate” the “urgent and compelling ... problems associated with the 100-to-1 drug quantity
ratio.”94 The Commission opined that the amendment was “only ... a partial remedy” and was
“neither a permanent nor complete solution.”95
In July 2007, the Commission proposed that the changes relating to what had been the 100:1 ratio
in the Guidelines be made retroactively applicable to previously sentenced crack cocaine
offenders.96 On November 1, 2007, the amendments to the Guidelines including those relating to
crack and the 100:1 ratio went into effect.97 On December 11, 2007, the Sentencing Commission
unanimously voted to apply the crack amendment retroactively.98
As noted earlier, the Controlled Substances Act makes trafficking in 5 to 50 grams of crack
cocaine or 500 to 5,000 grams of cocaine powder punishable by imprisonment for not less than 5
years and not more than 40 years.99 It makes trafficking more than 50 grams of crack or more
than 5,000 grams of cocaine powder punishable by imprisonment for not less than 10 years and
not more than life.100 These sanctions, like most federal criminal penalties, are reflected in the
Sentencing Guidelines. The Guidelines assign most federal crimes to an individual guideline
which in turn assigns the offense an initial base sentencing level. Drug trafficking offenses, for
example, have been assigned to section 2D1.1, which sets the base offense level according to the
amount of crack or powder cocaine involved in a particular case.101 Levels are then added or
subtracted on the basis of any aggravating or mitigating factors presented in a particular
defendant’s case. For example, a defendant’s offense level may be decreased by two or four
levels, if the offense involved a number of participants and the defendant’s role in the offense was
minor or minimal.102 A defendant’s final offense level and his criminal history (criminal record)
govern the sentence recommended by the Guidelines.103 The Guidelines assign sentencing ranges
for each of the 43 possible final offense levels.104 Each of the 43 has a series of six escalating
sentencing ranges to mirror the extent of the defendant’s criminal history.105 For example, if a
defendant has no prior criminal record and his final sentencing level is 26, the Guidelines
recommend that the sentencing court impose a term of imprisonment somewhere between 63 and

93 United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, at 8 (May
2007), available on November 13, 2007, at http://www.ussc.gov/r_congress/cocaine2007.pdf.
94 Id. at 9; 72 Fed. Reg. 28558, 28572-573 (May 21, 2007).
95 United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, at 10 (May
2007).
96 72 Fed. Reg. 41794 (July 31, 2007). Proposed Guideline amendments submitted to Congress on or before May 1
become effective on the following November 1, unless modified or disapproved by Act of Congress. 28 U.S.C.
§ 994(p). A federal court may modify a sentence it has imposed to reflect a subsequently reduced sentencing range, to
the extent the modification is consistent with Sentencing Commission policy statements. 18 U.S.C. § 3582(c)(2).
97 UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL (November 1, 2007), available on November 13,
2003 at http://www.ussc.gov/2007guid/GL2007.pdf.
98 U.S. Sentencing Commission, News Release: U.S. Sentencing Commission Votes Unanimously to Apply Amendment
Retroactively for Crack Cocaine Offenses,
Dec. 11, 2007, available at http://www.ussc.gov/PRESS/rel121107.htm.
99 21 U.S.C. 841(b)(1)(B)(ii), (iii).
100 21 U.S.C. 841(b)(1)(A)(ii), (iii).
101 U.S.S.G. § 2D1.1(c)(Drug Quantity Table) (November 1, 2007).
102 U.S.S.G. § 3B1.2 (November 1, 2007).
103 U.S.S.G. § 1B1.1 (November 1, 2007).
104 U.S.S.G. ch.5A (Sentencing Table) (November 1, 2007).
105 Id.
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78 months; at the other extreme, if a defendant has an extensive prior criminal record and his final
sentencing level is the same 26, the Guidelines recommend a sentencing range of between 120 to
150 months.106
The drug quantity table that is part of the drug sentencing guideline, U.S.S.G. § 2D1.1(c), assigns
offenses to one of several steps with corresponding sentencing levels based on the kind and
volume of the controlled substances involved in the offense.107 For example, an offense involving
150 kilograms or more of powder cocaine is assigned a step (1) offense level of 38, while an
offense involving less than 25 grams is assigned a step (14) offense level of 12.108 Prior to the
amendments effective on November 1, 2007, each of the steps reflected a 100:1 ratio between
crack and powder cocaine; for instance, offenses involving either more than 150 kilograms of
powder cocaine or more than 1.5 kilograms of crack cocaine were each assigned a step (1)
offense level of 38.109 In order to reduce the prospect of a Guideline result beneath the statutory
minimums, the pre-amendment Guidelines assigned the 5-year-minimum-triggering 5 grams
(crack)/500 grams (powder) offenses to U.S.S.G. § 2D1.1(c), step (7), with an offense level of 26
which translated to a sentencing range of from 5 years and 3 months (63 months) to 6 years and 6
months (78 months).110 It made a similar assignment for the 10-year mandatory minimum
offenses involving 50 grams of crack or 5,000 grams of powder cocaine: level 32 with a
sentencing range for first offenders of from 10 years and 1 month (121 months) to 12 years and 7
months (151 months).111
The Commission’s amendments focused first on the assignment for crack offenses subject to a
mandatory minimum. The Commission noted that its earlier assignment set the bottom of the two
ranges higher than necessary to satisfy minimum sentencing requirements (5 years and 3 months
in the case of 5 grams; 10 years and 1 month in the case of 50 grams).112 Its amendments reassign
those offenses to offense levels where the mandatory minimum fell within the middle of the
ranges, that is, to offense level 24 (51 to 63 months for first offenders) and offense level 30 (97 to
121 months for first offenders) for 5- and 50-gram crack offenses, respectively.113 They then
provide a similar two-level reduction for crack offenses involving amounts above and beyond

106 Id. A defendant’s criminal history score is separately calculated, U.S.S.G. ch.4, and scores correspond to 1 of the 6
sentencing ranges assigned to each final offense level. In the case of offense level 26, for instance, the sentencing range
for a defendant with an extensive criminal record (13 or more criminal history points) is 120 to 150 months rather than
the 63 to 78 months for a first time offender. Id
107 U.S.S.G. § 2D1.1(c) (November 1, 2007).
108 Id.
109 U.S.S.G. § 2D1.1(c)(1) (November 1, 2006).
110 U.S.S.G. § 2D1.1(c), ch.5A (Sentencing Table) (November 1, 2006).
111 Id.
112 “The drug quantity thresholds in the Drug Quantity Table are set so as to provide base offense levels corresponding
to guideline ranges that are above the statutory mandatory minimum penalties. Accordingly, offenses involving 5
grams or more of crack cocaine were assigned a base offense level (level 26) corresponding to a sentencing guideline
range of 63 to 78 months from a defendant in criminal History Category I (a guideline range that exceeds the five-year
statutory minimum for such offenses by at least three months.... ” United States Sentencing Commission, Amendments
to the Sentencing Guidelines
, at 66 (May 11, 2007)(emphasis in the original); 72 Fed. Reg. 28573 (May 21, 2007).
113 “This amendment modifies the drug quantity thresholds in the Drug Quantity Table so as to assign, for crack
cocaine offenses, base offense levels corresponding to guideline ranges that include the statutory mandatory minimum
penalties. Accordingly, pursuant to the amendment, 5 grams of cocaine base are assigned a base offense level of 24 (51
to 63 months at Criminal History Category I, which includes the five-year (60 month) statutory minimum for such
offenses).... ” United States Sentencing Commission, Amendments to the Sentencing Guidelines, at 66 (May 11,
2007)(emphasis in the original); 72 Fed. Reg. 28573 (May 21, 2007).
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those that trigger the mandatory minimums.114 The amendments, however, make no such changes
in the offense levels to which powder cocaine offenses are assigned. As a consequence, the 100:1
ratio has disappeared from the Guidelines (although the statutory 100:1 ratio in the quantities of
powder cocaine and crack cocaine that trigger the mandatory minimum penalties still remains).115
Retroactivity Decision
In July 2007, the Commission proposed that the amendment be made retroactively applicable to
previously sentenced crack cocaine offenders.116 After receiving public comment on the issue of
retroactivity117 and holding public hearings to consider the issue,118 the Commission voted 7-0 in
favor of retroactivity on December 11, 2007. While the Commission found “that the statutory
purposes of sentencing are best served by retroactive application of the amendment,” it
emphasized that not all previously sentenced crack cocaine offenders will automatically receive a
reduction in sentence—rather, federal sentencing judges will have the final authority to make that
determination based on the merits of each case, after considering a variety of factors, including
whether public safety would be endangered by early release of the prisoner.119
Case Law Applying the Retroactive Crack Cocaine Amendments
Federal law (18 U.S.C. § 3582(c)(2)) permits a federal prisoner to petition a court to modify his
original term of imprisonment, if the Sentencing Commission issues policy statements supporting
such reduction for previously sentenced offenders. The court is not required to approve such
sentence reduction motion; rather, the statute provides that a court “may” reduce such
imprisonment term. However, a court may not reduce a sentence below a statutory mandatory
minimum.120
A federal court considering a so-called “§ 3582(c)(2)” motion has discretion to reduce the
imprisonment sentence after considering the following statutory factors, set forth in 18 U.S.C.
§ 3553(a):
• the nature and circumstances of the offense and the history and characteristics of
the defendant;
• the need for the sentence imposed: (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense;

114 Id.
115 The existing ratio in the Guidelines varies from step to step, ranging from 25:1 to 80:1. The changes that the
amendment made to the Drug Quantity Table are appended below.
116 72 Fed. Reg. 41,794 (July 31, 2007).
117 Opinions were received from a variety of parties, including the judiciary, the executive branch, interested
organizations, members of the defense bar, and individual citizens. These public comment letters are available at
http://www.ussc.gov/pubcom_Retro/PC200711.htm.
118 A transcript of the public hearing, held by the Commission on November 13, 2007, is available at
http://www.ussc.gov/hearings/11_13_07/Transcript111307.pdf.
119 U.S. Sentencing Commission, News Release: U.S. Sentencing Commission Votes Unanimously to Apply Amendment
Retroactively for Crack Cocaine Offenses,
Dec. 11, 2007, available at http://www.ussc.gov/PRESS/rel121107.htm.
120 Kimbrough, 522 U.S. at 108 (“[A]s to crack cocaine sentences in particular, we note [that] district courts are
constrained by the mandatory minimums Congress prescribed in the 1986 Act.”).
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(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
educational or vocational training, medical care, or other correctional treatment
in the most effective manner;
• the sentencing range established by the Commission;
• any pertinent policy statement issued by the Commission regarding application of
the guidelines;
• 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 any victims of the offense.121
The Sentencing Commission’s policy statement governing reduction of terms of imprisonment
based on amended Guidelines ranges is Sentencing Guidelines § 1B1.10.122 The policy statement
explains that “proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not
constitute a full resentencing of the defendant.”123 The policy statement also provides that a
“court shall not reduce the defendant’s term of imprisonment ... to a term that is less than the
minimum of the amended guideline range.”124
In the wake of the Sentencing Commission’s crack cocaine amendment retroactivity decision, the
federal courts began considering § 3582(c)(2) motions filed by crack offenders to obtain
reductions in their sentences.125 In the month of March 2008, when the retroactivity decision
became effective, more than 3,000 prisoners nationwide had their sentences reduced; 1,000 of
these inmates were released immediately.126 As of January 2010, a nationwide total of 15,501
motions have been granted, with an average decrease of 25 months from the prisoners’ original
sentence (a 17% decrease), while 7,970 petitions have been denied.127
Several issues arose during these cases, including whether prisoners who request sentence
reductions are entitled to have court-appointed lawyers to represent them in court, whether crack
offenders who were sentenced as career-offenders are eligible for sentence reductions, and
whether courts may reduce a sentence below the bottom end of the amended Guideline range (a
power that would be available to a court assuming that Booker applies to § 3582(c)(2)
proceedings). Many of the § 3582(c)(2) motions have been filed by defendants pro se, although
often with some assistance by the local federal public defender office. A panel from the Fifth
Circuit Court of Appeals declined to decide whether a § 3582(c)(2) motion triggers a statutory or
constitutional right to an attorney, but rather used its discretionary authority to appoint the

121 18 U.S.C. § 3553(a).
122 UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL § 1B1.10 (November 1, 2009), available at
http://www.ussc.gov/2009guid/1b1_10.htm.
123 U.S.S.G. § 1B1.10(a)(3) (November 1, 2009).
124 U.S.S.G. § 1B1.10(b)(2)(A) (November 1, 2009).
125 Darryl Fears, Government Starts Cutting Sentences Of Crack Inmates, WASH. POST, Mar. 5, 2008, at A02.
126 Crack Cocaine: Resentencing Goes Smoothly, THE THIRD BRANCH, Vol. 40, No. 5 (May 2008), available at
http://www.uscourts.gov/ttb/2008-05/article02.cfm.
127 U.S. Sentencing Commission, Preliminary Crack Cocaine Retroactivity Data Report, (Jan. 2010 Data), available at
http://www.ussc.gov/USSC_Crack_Retroactivity_Report_2010_January.pdf.
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prisoner an attorney “in the interest of justice.”128 Other federal courts have rejected the argument
that a prisoner has a constitutional right to assistance of counsel in pursuing a § 3582(c)(2)
motion for a sentence reduction.129
Another question facing the courts was whether defendants who were convicted of crack cocaine
offenses but sentenced as career offenders130 could benefit from the amended crack cocaine
sentencing guidelines. Courts of appeals that have considered the issue have ruled that they
cannot.131 An opinion from the Eleventh Circuit Court of Appeals is typical of these decisions:
Where a retroactively applicable guideline amendment reduces a defendant’s base offense
level, but does not alter the sentencing range upon which his or her sentence was based,
§ 3582(c)(2) does not authorize a reduction in sentence. Here, although Amendment 706 [the
crack cocaine amendment] would reduce the base offense levels applicable to the defendants,
it would not affect their guideline ranges because they were sentenced as career offenders
under [U.S. Sentencing Guidelines] § 4B1.1.132
Federal courts have also addressed whether Booker applies to § 3582(c)(2) proceedings (which
would determine whether district courts have the authority to impose a sentence that is even
lower than the minimum of the amended Sentencing Guideline range). Ten courts of appeals have
held that while Booker applies to original sentencing proceedings, “in which a district court must
make a host of guideline application decisions in arriving at a defendant’s applicable guideline
range and then ultimately impose a sentence after reviewing the § 3553(a) factors,” Booker does
not apply to sentence modification proceedings under § 3582(c)(2) because such proceedings are
“much more narrow in scope.”133 One federal appellate court offered the following reasoning to
justify its decision not to apply Booker to § 3582(c)2(2) proceedings:
Nowhere in Booker did the Supreme Court mention §3582(c)(2). Because §3582(c)(2)
proceedings may only reduce a defendant’s sentence and not increase it, the constitutional
holding in Booker does not apply to §3582(c)(2). ... Additionally, the remedial holding in
Booker invalidated only 18 U.S.C. §3553(b)(1), which made the Sentencing Guidelines
mandatory for full sentencings, and §3742(e), which directed appellate courts to apply a de
novo standard of review to departures from the Guidelines. Therefore, Booker applies to full
sentencing hearings –whether in an initial sentencing or in a resentencing where the original

128 United States v. Robinson, 542 F.3d 1045 (5th Cir. 2008).
129 See, e.g., United States v. Olden, 2008 U.S. App. LEXIS 22191 (10th Cir. 2008); United States v. Legree, 205 F.3d
724, 730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996); United States v. Tidwell, 178
F.3d 946 (7th Cir. 1999); United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995); United States v. Reddick, 53 F.3d
462 (2d Cir. 1995); United States v. Webb, 565 F.3d 789 (11th Cir. 2009).
130 A defendant is a career offender if (1) the defendant was at least 18 years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. U.S. Sentencing Guidelines § 4B1.1.
131 United States v. Thomas, 524 F.3d 889 (8th Cir. 2008); United States v. Sharkey, 543 F.3d 1236 (10th Cir. 2008);
United States v. Moore, 541 F.3d 1323 (11th Cir. 2008); United States v. Caraballo, 552 F.3d 6 (1st Cir. 2008).
132 Moore, 541 F.3d at 1330.
133 United States v. Rhodes, 549 F.3d 833, 840 (10th Cir. 2008); see also United States v. Fanfan, 558 F.3d 105 (1st Cir.
2009); United States v. Savoy, 567 F.3d 71 (2d Cir. 2009); United States v. Dillon, 572 F.3d 146 (3d Cir. 2009), cert.
granted,
130 S. Ct. 797 (2009); United States v. Dunphy, 551 F.3d 247 (4th Cir. 2009); United States v. Doublin, 572
F.3d 235 (5th Cir. 2009); United States v. Washington, 584 F.3d 693 (6th Cir. 2009); United States v. Cunningham, 554
F.3d 703 (7th Cir. 2009); United States v. Starks, 551 F.3d 839 (8th Cir. 2009); United States v. Melvin, 556 F.3d 1190
(11th Cir. 2009).
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sentence is vacated for error, but not to sentence modification proceedings under
§3582(c)(2).134
In disagreement with all of the other circuit courts of appeals, the Ninth Circuit Court of Appeals
has found that Booker renders the Guidelines advisory in a § 3582(c)(2) proceeding, and thus a
district court may reduce a sentence below the amended guideline range.135
Possibly interested in resolving this circuit split and offering a definitive answer to this question,
the Supreme Court granted certiorari in Dillon v. United States, a Third Circuit Court of Appeals
case that had held that Booker does not apply to the size of a sentence reduction that may be
granted under § 3582(c)(2).136 The defendant in the case, Percy Dillon, was convicted in 1993 of
several felony offenses involving cocaine and was sentenced to the bottom of the then-applicable
Guidelines range, 322 months. After the Sentencing Commission’s decision to make the
amendments to the crack cocaine Guidelines retroactive in December 2007, Mr. Dillon filed a pro
se motion for a sentence reduction pursuant to § 3582(c)(2). The district court reduced Mr.
Dillon’s sentence to 270 months, although Mr. Dillon desired an even greater reduction, below
the bottom of the amended Guidelines range, in light of Booker and the institutional rehabilitation
and educational achievements that he has accomplished while incarcerated. On appeal, the Third
Circuit opined that “[i]f Booker did apply in proceedings pursuant to § 3582, Dillon would likely
be an ideal candidate for a non-Guidelines sentence,” but ultimately upheld the district court’s
conclusion that it lacked the authority to further reduce his sentence because the Sentencing
Commission’s applicable policy statement (Sentencing Guidelines § 1B1.10) is binding on the
district court pursuant to 18 U.S.C. 3582(c)(2).137
In his briefs submitted to the Supreme Court, Mr. Dillon argued that Booker extends to
resentencings conducted under § 3582(c)(2) and criticized the Sentencing Commission’s policy
statement (Sentencing Guidelines § 1B1.10) that binds district courts to the Guidelines sentencing
range during resentencings under § 3582(c)(2). The policy statement, he asserted, “attempts to
resurrect the mandatory Guidelines system Booker invalidated.”138 In its brief on the merits, the
United States argued that Booker only applies “when a court engages in a plenary sentencing.”139
A § 3582(c)(2) proceeding, however, “provides a one-way ratchet to lower a defendant’s
otherwise-final sentence” in a way that “does not implicate the Sixth Amendment rule applied in
Booker” because the court may not increase a defendant’s sentence based on judicially found
facts.140 Furthermore, the United States warned the Supreme Court of the consequences of
applying Booker to § 3582(c)(2) proceedings:
[E]very retroactive Guidelines amendment would carry the potential to reopen thousands of
sentences of imprisonment under the statutory sentencing factors set out in Section 3553(a).
Petitioner’s proposed rule not only would undermine principles of finality that are essential
to the operation of the criminal justice system, but also would inevitably affect the

134 United States v. Doe, 564 F.3d 305, 313 (3d Cir. 2009) (internal citations and quotations omitted).
135 United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007) (“Because Booker abolished the mandatory application
of the Sentencing Guidelines in all contexts, and because reliance on its holding is not inconsistent with any applicable
policy statement, we reverse the district court and hold that Booker applies to § 3582(c)(2) proceedings.”).
136 United States v. Dillon, 572 F.3d 146 (3d Cir. 2009), cert. granted, 130 S. Ct. 797 (2009).
137 Id. at 147, 149.
138 Brief of Petitioner at 32-33, Dillon v. United States, No. 09-6338 (2010)(Petitioner’s Brief).
139 Brief of Respondent at 14, Dillon v. United States, No. 09-6338 (2010)(Respondent’s Brief).
140 Id.
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Sentencing Commission’s calculus in deciding whether to make its Guidelines amendments
retroactive in the first place. That result would diminish Section 3582(c)(2)’s value as a
mechanism for the exercise of leniency.141
On March 30, 2010, the Court heard oral argument in Dillon;142 a decision is expected by the end
of June 2010.
Legislation in the 111th Congress
As of the date of this report, several bills have been introduced concerning cocaine sentencing.
Representative Roscoe Bartlett introduced H.R. 18 (Powder-Crack Cocaine Penalty Equalization
Act of 2009), which would equalize the triggering quantity for the mandatory minimum sentences
for cocaine offenses at the crack cocaine levels (5 grams of powder cocaine would result in a 5-
year sentence and 50 grams a 10-year sentence). Currently, it takes 100 times those quantities to
trigger the 5- and 10-year mandatory minimum sentences for powder cocaine.
Representative Sheila Jackson-Lee introduced H.R. 265 (Drug Sentencing Reform and Cocaine
Kingpin Trafficking Act of 2009), which would eliminate the statutory 100:1 ratio in cocaine
cases by raising the crack cocaine threshold to 500 grams and 5 kilograms for the 5- and 10-year
mandatory minimums, respectively. It would call upon the Sentencing Commission to reexamine
the weight given aggravating and mitigating factors in drug trafficking cases. It also would
eliminate the 5-year mandatory minimum for simple possession of crack cocaine. In addition, the
bill would increase fines for significant drug trafficking offenses, authorize funding for prison-
and jail-based drug treatment programs, and authorize increased resources for the Departments of
Justice, Treasury, and Homeland Security.
Representative Bobby Scott introduced H.R. 1459 (Fairness in Cocaine Sentencing Act of 2009),
which would amend the Controlled Substances Act and the Controlled Substances Import and
Export Act regarding cocaine penalties. The bill would treat 50 grams of crack the same as 50
grams of other forms of cocaine, 5 grams of crack the same as 5 grams of other forms of cocaine,
and would eliminate all mandatory minimum penalties relating to cocaine offenses. The bill also
would reestablish the possibility of probation, suspended sentence, or parole for cocaine
offenders. Representative Scott also has introduced H.R. 3245 (Fairness in Cocaine Sentencing
Act of 2009), which would make fewer changes to the drug laws; the bill would eliminate
references to “cocaine base” from the Controlled Substances Act and the Controlled Substances
Import and Export Act (meaning that these laws would treat all forms of cocaine the same for
sentencing purposes) and would eliminate the mandatory minimum for simple possession of
crack cocaine.
Representative Maxine Waters introduced H.R. 1466 (Major Drug Trafficking Prosecution Act of
2009), which would, among other things, eliminate all mandatory minimum sentences for drug
trafficking and possession offenses, and permit courts to place drug offenders on probation or
suspend their sentences. The bill also would require the Attorney General to provide written
approval before the commencement of a federal prosecution for an offense involving less than
500 grams of powder or crack cocaine.

141 Id. at 15.
142 Dillon v. United States, No. 09-6338 (2010).
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Representative Charles Rangel introduced H.R. 2178 (Crack-Cocaine Equitable Sentencing Act
of 2009), which would amend the Controlled Substances Act and the Controlled Substances
Import and Export Act to treat 50 grams of crack the same as 50 grams of other forms of cocaine;
5 grams of crack the same as 5 grams of other forms of cocaine, and eliminate the 5-year
mandatory minimum for simple possession of crack cocaine.
Senator Richard Durbin introduced S. 1789 (Fair Sentencing Act of 2010), which would, among
other things, increase the threshold amount of crack cocaine necessary to trigger the mandatory
minimum penalties to 28 grams (from 5 grams for the current 5-year sentence) and 280 grams
(from 50 grams for the current 10-year sentence). This change would reduce the statutory 100:1
ratio to 18:1. The bill also would eliminate the 5-year mandatory minimum for simple possession
of crack cocaine. On March 17, 2010, the Senate passed S. 1789 by unanimous consent. The bill
has been referred to the House Judiciary Committee and the House Committee on Energy and
Commerce.
Past Congresses have considered legislation relating to cocaine sentencing; some of these bills
had called for a 1:1 drug quantity ratio between crack and powder cocaine,143 while other bills
would have changed the statutory ratio to 20:1.144

143 See, e.g., H.R. 2456, 109th Cong., 1st Sess. (Crack-Cocaine Equitable Sentencing Act of 2005); H.R. 79, 110th
Cong., 1st Sess. (Powder-Crack Cocaine Penalty Equalization Act of 2007); H.R. 460, 110th Cong., 1st Sess. (Crack-
Cocaine Equitable Sentencing Act of 2007); S. 1711, 110th Cong., 1st Sess. (Drug Sentencing Reform and Cocaine
Kingpin Trafficking Act of 2007).
144 S. 1383, 110th Cong., 1st Sess. (Drug Sentencing Reform Act of 2007); S. 1685, 110th Cong., 1st Sess. (Fairness in
Drug Sentencing Act of 2007).
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Appendix. Drug Quantity Table (Before and After
Amendment)

Controlled Substance and Quantity
Base Offense Level
150 KG or more of Cocaine
Level 38
1.5 4.5 KG or more of Cocaine Base
At least 50 KG but not less than 150 KG of Cocaine
Level 36
At least 500 1.5 G but not less than 1.5 4.5 KG of Cocaine Base
At least 15 KG but not less than 50 KG of Cocaine
Level 34
At least 150 500 G not less than 500 G 1.5 KG of Cocaine Base
At least 5 KG but not less than 15 KG of Cocaine
Level 32
At least 50 150 G not less than 150 500 G of Cocaine Base
At least 3.5 KG but not less than 5 KG of Cocaine
Level 30
At least 35 50 G not less than 50 150 G of Cocaine Base
At least 2 KG but not less than 3.5 KG of Cocaine
Level 28
At least 20 35 G not less than 35 50 G of Cocaine Base
At least 500 G but not less than 2 KG of Cocaine
Level 26
At least 5 20 G not less than 20 35 G of Cocaine Base
At least 400 G but not less than 500 G of Cocaine
Level 24
At least 4 5 G not less than 5 20 G of Cocaine Base
At least 300 G but not less than 400 G of Cocaine
Level 22
At least 3 4 G not less than 4 5 G of Cocaine Base
At least 200 G but not less than 300 G of Cocaine
Level 20
At least 2 3 G not less than 3 4 G of Cocaine Base
At least 100 G but not less than 200 G of Cocaine
Level 18
At least 1 2 G not less than 2 3 G of Cocaine Base
At least 50 G but not less than 100 G of Cocaine
Level 16
At least 500 MG 1 G not less than 1 2 G of Cocaine Base
At least 25 G but not less than 50 G of Cocaine
Level 14
At least 250 500 MG not less than 500 MG 1 G of Cocaine Base
At least 25 G of Cocaine
Level 12
At least 250 500 MG of Cocaine Base





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Author Contact Information

Brian T. Yeh

Legislative Attorney
byeh@crs.loc.gov, 7-5182

Acknowledgments
This report was originally prepared by Paul Starett Wallace Jr., Specialist in American Public Law, CRS.

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