Crack Resentencing Controversy Comes Before 11th Circuit

Alyson M. Palmer

Daily Report

Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.

The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.

In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November. Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders. (see below for related case briefs.)

Crack cocaine sentencing guidelines have been criticized because the sale, manufacture or possession of crack carries a much harsher sentence than that for a similar amount of powder cocaine. The disparity has been described as a 1-100 ratio, meaning a small amount of crack is equivalent under the sentencing guidelines to a large amount of cocaine. Defenders of the disparity in sentencing have said that crack is more likely to be linked with crimes of violence, while critics note that the harsher crack guideline disproportionately affects African- Americans.

In December, the U.S. Sentencing Commission made retroactive the changes to the quantity guidelines that govern federal drug sentences. Those changes had reduced by two levels the base offense that applies to crack cocaine, which can amount to a difference of a few months or several years. In a press release, the commission called the change "only a partial step in mitigating the unwarranted sentencing disparity that exists."

The situation is complicated by a series of major sentencing decisions by the U.S. Supreme Court. In 2005, in United States v. Booker, 543 U.S. 220, the court said the federal sentencing guidelines must be considered merely advisory, in keeping with defendants' constitutional right to trial by jury. In December, the court re-emphasized that holding, saying that courts of appeals must defer to the trial judge in close sentencing calls, undoing the sentence only if they find the trial judge committed an abuse of discretion.

Defendants thus may view the retroactive change in the crack guideline as a way to get their foot in the door for a judge to revisit their sentences. But prosecutors argue that resentencings pursuant to retroactive guidelines are limited proceedings in which judges aren't supposed to start the sentencing consideration from scratch.

A hurricane was approaching South Florida on Monday, and lawyers at the offices of the federal public defender and the U.S. Attorney in Miami could not be reached.

Each inmate whose case will be heard today asked a district judge for a reduction based on the change in the crack guidelines. The district judge -- in four cases, Judge Daniel T.K. Hurley and in one, Judge Donald M. Middlebrooks, both in West Palm Beach, Fla., denied the motion.

The wrinkle for these defendants is that each was deemed a career offender under a separate guideline that sets another sentence for drug and violent crimes when the defendant has been found guilty of two other such felonies. Often the sentence recommended under the career criminal guideline is higher than that set by the drug offense guideline.

In denying the defendants' motions for reduced sentences, Hurley and Middlebrooks said that each defendant was sentenced under the career offender guideline, not the drug guideline. Thus, a sentence reduction is not authorized by the statute that allows sentence reductions, the judges ruled.

The public defender argues in briefs that now that the guidelines are merely advisory, no one guideline sentencing range -- whether a drug guideline or a career offender guideline -- can be said to "drive" a sentence, as the government argues. "Congress would not have intended for the Sentencing Commission to foreclose courts, post-Booker, from revisiting the discretionary components of their sentences when those components were potentially affected by a retroactive guideline amendment," Federal Public Defender Kathleen M. Williams wrote in a brief on behalf of one defendant, Keith Maurice McFadden.

Williams noted that in the post-Booker world, judges sometimes consider the drug offense guideline -- which is tied to the amount of drugs involved -- in sentencing a career offender. She cited a 2006 decision by the 11th Circuit, U.S. v. Williams, 435 F.3d 1350, which upheld a sentence in which the district judge found the defendant subject to a guideline range of 188 to 235 months as a career offender but sentenced the defendant to 90 months' imprisonment, noting that the conviction was for selling only $350 worth of crack.

Defense lawyers also argue that some of the defendants weren't really sentenced as career offenders because the government filed a motion indicating that the defendant had given the prosecution substantial assistance, allowing the judge to sentence the defendant below the career offender range.

Prosecutors counter that the 11th Circuit already has held in unpublished -- and thereby only persuasive, not binding -- opinions that when the defendant was sentenced under the career offender guideline, a retroactive amendment to another sentencing guideline does not permit a resentencing. They also argued that "a full Booker resentencing is not authorized" under the statute allowing retroactive resentencings, noting the 11th Circuit has decided generally defendants whose convictions are final have no right to a resentencing just because of Booker.

So far, it appears that federal district judges in Atlanta are adopting the same approach as Hurley and Middlebrooks, the district judges whose decisions are being heard today. But Weil said some appeals of rulings out of the Northern District of Georgia had been stayed given today's arguments.

Stephanie Kearns, who heads the Federal Defender Program in Atlanta, said the public defenders from Florida have a "tough argument" to make today. She said the better argument -- and one she expects to come up the appeals pipeline soon -- is on behalf of those inmates whose eligibility for resentencing under the new crack guideline is not complicated by career offender status.

The question, said Kearns, is why none of those defendants are getting more than two levels off their base offense level on resentencing. The re-sentencing statute says judges are to consider 18 U.S.C. 3553(a), which sets forth the factors generally to be considered in imposing a sentence, she noted. Still, said Kearns, "I have not seen anyone go beyond the two levels."

The reason for that, said Weil, is that defendants resentenced under the retroactive amendment are not to get the benefit of a judge's reconsideration of whether to depart from the guidelines. "Even pre-Booker, pre-crack amendment," said Weil, "it's never been a full resentencing. In fact, there's case law in our circuit that it's not a full resentencing."

RELATED DOCUMENTS

From the U.S. v. McFadden case:

• Government's brief (pdf)

• Defendant's brief (pdf)

From the U.S. v. Moore case:

• Appellant's brief (pdf)

• Government's brief (pdf)