U.S. v. Gaines

• Decision Date: 08 August 1997
• Docket Number: No. 95-2374,95-2374
• Citation: 122 F.3d 324
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Anthony GAINES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 324

122 F.3d 324

UNITED STATES of America, Plaintiff-Appellant, v. Anthony GAINES, Defendant-Appellee.

No. 95-2374.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1997.

Decided Aug. 8, 1997.

David J. Debold, Asst. U.S. Attorney (argued and briefed), Detroit, MI, for Plaintiff-Appellant.

Jill Leslie Price (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Defendant-Appellee.

Before: JONES, SUHRHEINRICH, and SILER, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined. JONES, J. (pp. 331-36), delivered a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

The United States Sentencing Guidelines ("Sentencing Guidelines") have engendered much controversy since their inception in 1987. One of the most controversial provisions of the Sentencing Guidelines has been the 100:1 quantity ratio of powder cocaine to crack cocaine ("100:1 ratio"). The 100:1 ratio treats an individual who traffics in a given quantity of crack cocaine the same as it treats one who traffics in 100 times as much powder cocaine. The United States Sentencing Commission ("Sentencing Commission") and Congress have engaged in an ongoing dialogue regarding the propriety of the 100:1 ratio. The most recent exchange between these two entities concerning the 100:1 ratio raises the single question on review in the case before us: whether a district court has the statutory authority to depart downward in the sentencing of a crack cocaine dealer on the ground that the Sentencing Commission, as opposed to Congress, determined that the 100:1 ratio should be eliminated. ¹ The district court concluded it had such authority and departed downward to the statutory minimum in sentencing Anthony Gaines for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a). The United States appeals. ² We VACATE and REMAND for resentencing consistent with this opinion.

I.

Before the Sentencing Commission originally promulgated the Sentencing Guidelines in 1987, Congress adopted a similar 100:1 ratio in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, when it created mandatory minimum and maximum penalties for persons convicted of trafficking in crack and powder cocaine, as well as other controlled substances. ³ 21 U.S.C. § 841(b). The Sentencing Commission, which derives its authority from Congress, see 28 U.S.C. § 994; Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 676, 102 L.Ed.2d 714 (1989) (holding constitutional the use of the Sentencing Commission to set Sentencing Guidelines under the Sentencing Reform Act of 1984), subsequently incorporated Congress's method of treating cocaine offenders into the original Sentencing Guidelines submitted in April of 1987. ⁴

The 100:1 ratio proved to be controversial from the outset. Sensitive to these criticisms, in 1994 Congress directed the Sentencing Commission to study and report on federal sentencing policy as it related to possession and distribution of all forms of cocaine. See Omnibus Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (September 13, 1994). The Act stated that the cocaine sentencing report "shall address the differences in penalty levels that apply to different forms of cocaine and include any recommendations the Commission may have for retention or modification of such differences in penalty levels." Id.

The result of the Sentencing Commission's work was the book-length Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995) [hereinafter Cocaine Report ], issued in February of 1995, which analyzed each factor perceived to be relevant to the distinction between crack and powder cocaine. In the Cocaine Report, the Sentencing Commission concluded that it could not support the penalty scheme in force. "The factors that suggest a difference between the two forms of cocaine do not approach the level of a 100-to-1 quantity ratio. Research and public policy may support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 ratio cannot be recommended." Cocaine Report, p. xiv.

Based on the findings of the Cocaine Report, the Sentencing Commission submitted to Congress on May 1, 1995, amendments to the Sentencing Guidelines relating to cocaine offenses. ⁵ Amendments to the Sentencing Guidelines for the United States Courts, 60 Fed.Reg. 25074, 25074 (May 10, 1995). The Sentencing Commission proposed (1) the elimination of the 100:1 ratio, (2) the placement of penalties for all forms of cocaine at the present powder cocaine levels, ⁶ and (3) the addition of other sentence enhancements for particular harms typically associated with crack cocaine offenses.

Pursuant to 28 U.S.C. § 994(p), the Sentencing Commission specified an effective date of November 1, 1995, for the amendments. Id. In October of 1995, however, Congress considered and rejected the Sentencing Commission's proposed amendments. Pub.L. No. 104-38, 109 Stat. 334 (October 30, 1995). Congress also directed the Sentencing Commission to submit new recommendations regarding cocaine sentencing. ⁷ Against this backdrop, the district court considered and granted Gaines's request for a downward departure.

II.

The facts of this case are straightforward and undisputed. In the summer of 1994, agents from the Bureau of Alcohol, Tobacco, and Firearms ("BATF") arranged through a series of phone calls between Gaines and codefendant Orlando Freeman to purchase approximately 500 grams of crack cocaine from Gaines. ⁸ When Gaines arrived at the location specified for the sale, BATF agents arrested him and seized 500 grams of crack on the front seat of his automobile.

A subsequent search of Gaines's house yielded four handguns and approximately $29,117 in U.S. currency. One of the hand guns had an obliterated serial number. BATF agents and a canine later searched Gaines's impounded vehicle. The canine search revealed a specially constructed secret hydraulic lift compartment that contained approximately three kilograms of crack cocaine. Gaines waived his Miranda rights and told the officers that he trafficked in large quantities of crack cocaine. Gaines also admitted that he and Freeman intended to sell 500 grams of crack cocaine to the BATF agents and that he intended to distribute the remaining three kilograms of crack cocaine later in the evening.

Gaines was charged with (1) conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846; (2) possession of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Gaines pled guilty to all three charges.

Under 21 U.S.C. § 841(a)(1), Gaines faced a minimum term of imprisonment of ten years and a maximum of life. The guideline imprisonment range was 168 to 210 months. ⁹ The district court postponed sentencing until after November 1, 1995, in part to determine if Congress would approve the Sentencing Commission's proposed Sentencing Guidelines amendments eliminating the 100:1 ratio.

On November 9, 1995, 10 days after Congress had rejected the proposed amendments, Gaines appeared before the district court for sentencing. The court departed below the applicable guideline range and imposed the mandatory minimum sentence of 120 months. At the sentencing hearing, the court explained its decision as follows:

THE COURT: The guidelines set a sentencing level of--that has a minimum of 168 months. There is also a statute for mandatory minimum sentence here of 120 months. It does seem to me given much of the testimony and scientific evidence that we have as outlined in the defendant's memorandum that it would be reasonable here to depart downward for the reasons articulated by [Defense Counsel], to depart downward under, is it 5K2.0?

DEFENSE COUNSEL: That's correct, Your Honor.

THE COURT: To the mandatory minimum of ten years. I'll just state for the record that I'm not in the least trivializing the crime here. It's very substantial. The amount was significant but it seems to me, overall, that the statutory minimum is probably a more appropriate sentence than the bottom of the guideline range. And I will therefore sentence the defendant to a period of ten years.

In the Judgment and Commitment Order the district court elaborated on its rationale for the departure. According to the district court, the Cocaine Report and the Sentencing Commission's proposed amendments to the Sentencing Guidelines indicated that the Sentencing Commission had not adequately considered the bases for the 100:1 ratio in promulgating the original Sentencing Guidelines. In particular, the district court focused on the following five factors discussed in the Cocaine Report:

[The 100:1 ratio] (i) cannot be justified by the psychological effects of the two forms of cocaine; (ii) has a disparate impact on blacks (in the last fiscal year for which data was available, 88.3% of crack defendants were black, 7.1% were hispanic, and only 4.1% were white); (iii) creates higher penalties for street dealers than for their more culpable suppliers; (iv) effects a double punishment on crack defendants in light of subsequent guideline changes; and (v) creates extraordinary disparities given the street values of the two forms of cocaine.

United States v. Gaines, No. CR 94-80821-1, at 7 (E.D.Mich. Nov. 13, 1995) (Mem.) (citations to Cocaine Report omitted). According to the district court, the Sentencing Commission's failure to consider these factors warranted a departure under U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b). Consequently, the court departed below the range specified in the Sentencing Guidelines, to the statutory minimum.

III.

We review a district court's departure from the Sentencing Guidelines under an abuse of discretion standard. Koon v. United States, 518 U.S. 81, ---- - ----, 116...