U.S. v. Peterson, No. Crim. 3:00CR155.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtPayne
Citation143 F.Supp.2d 569
Decision Date27 April 2001
Docket NumberNo. Crim. 3:00CR155.
143 F.Supp.2d 569
Derick Anthony PETERSEN.
No. Crim. 3:00CR155.
United States District Court, E.D. Virginia, Richmond Division.
April 27, 2001.

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Brian R. Hood, Assistant United States Attorney, United States Attorney's Office, Richmond, VA, for United States.

Marcia G. Shein, Decatur, GA, Craig Sampson, Richmond, VA, for defendant.


PAYNE, District Judge.

Upon a plea of guilty, Derick Anthony Petersen was convicted of possessing cocaine base with intent to distribute it in violation of 21 U.S.C. § 841. He has challenged both the statute of conviction and the United States Sentencing Guidelines (hereinafter "the Guidelines"), as applied, as violative of the equal protection guarantee, the due process guarantee, and the Eighth Amendment because of the 100-to-1 quantity ratio that determines the statutory mandatory minimum sentence and the Guidelines offense level.1 The sentencing range calculated under the Guidelines is 262 to 327 months. Had Petersen been convicted of possessing with intent to distribute the same amount of cocaine powder, the sentencing range would be 151 to 188 months.2

The United States Court of Appeals for the Fourth Circuit repeatedly has denied equal protection, due process, and Eighth Amendment challenges to the statute of conviction as it was enacted. And, like many other judges who have confronted that issue, I also have rejected, on numerous occasions, like challenges to the statute and the Guidelines.

Petersen, however, has raised new arguments that neither the Fourth Circuit nor this Court have addressed. Specifically, Petersen's first constitutional challenge makes it necessary to assess how equal protection jurisprudence applies in view of six years of congressional inaction since the publication of a report by the United States Sentencing Commission demonstrating: (1) that the statute and the Guidelines have a disparate impact on black defendants; and (2) that there is no justification for the 100-to-1 disparity which activates the statutory mandatory minimum sentence and which animates the guideline sentence for the offense of which Petersen was convicted. Petersen's Eighth Amendment challenge makes it necessary to address whether the lack of justification for the 100-to-1 ratio and the ensuing sentencing consequences comport with the evolving standards of decency that lie at the heart of the Eighth Amendment and that guide the analysis of challenges based on that amendment.


In 1986, Congress enacted mandatory minimum penalties for manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, crack cocaine and powder cocaine. The basis for these mandatory minimum punishments was the strong belief "that the Federal government's most intense focus ought to be on major traffickers, the manufacturers or the heads of organizations, who are responsible for creating and delivering very large quantities of drugs." H.R.Rep. No. 99-845, at 11-12 (1986). In

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addition, "a second level of focus ought to be on the managers of the retail level traffic, the person who is filling the bags of heroin, packaging crack into vials or wrapping pcp in aluminum foil, and doing so in substantial street quantities." Id. at 12.

Under these mandatory minimum penalties, trafficking in 5 grams of crack cocaine triggers a five-year mandatory minimum sentence, but if the defendant is trafficking in powder cocaine, the five-year mandatory minimum sentence is triggered only if the amount involved is 500 grams. See 21 U.S.C. 841(b)(1)(B). Similarly, trafficking in 50 grams of crack cocaine triggers a ten-year mandatory minimum, while trafficking in 5 kilograms (or 5,000 grams) of powder cocaine triggers the ten-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A). Thus, the mandatory minimum provisions in 21 U.S.C. § 841 create a 100-to-1 ratio between the quantity of powder cocaine and crack cocaine necessary to trigger each level of the mandatory minimum punishments. Similarly, by virtue of the Anti-Drug Abuse Act of 1988, the simple possession of cocaine base carries a mandatory minimum of five years, while the simple possession of any other substance — including cocaine in its powder form — carries a statutory maximum penalty of one year. See 21 U.S.C. § 844.

This 100-to-1 quantity ratio is not limited to triggers for mandatory minimum penalties; it, indeed, pervades the sentencing framework established in the Guidelines. "This statutory 100-to-1 quantity ratio of powder cocaine to crack cocaine (i.e., it takes 100 times as much powder cocaine compared to crack to trigger the mandatory minimum penalties) in turn is incorporated into the federal sentencing guidelines, thereby maintaining a similar quantity ratio for offenders involved with drug quantities above and below the specified mandatory minimum penalty amounts." U.S. Sentencing Comm'n,3 Special Report to Congress: Cocaine and Federal Sentencing Policy iii (Feb.1995) [hereinafter 1995 Commission Report].

A. The 1986 Statute

To resolve the constitutional challenges made by Petersen, it is appropriate briefly to recount the provenance of the 100-to-1 disparity which the statute and the Guidelines implement. Although cocaine usage in this country dates back about 150 years, the use of crack cocaine is relatively new. Id. at 8-11. Crack cocaine, a form of cocaine base, was first documented in the press in 1984. Id. at 13-14, 122.

Congress responded to this circumstance by enacting the Anti-Drug Abuse Act of 1986 ("the 1986 Act"), which created the mandatory minimum penalties for crack and powder cocaine trafficking. The 1986 Act was passed in response to tragic and well-publicized incidents involving crack cocaine, without the benefit of any study of the scope of the problem or deliberation on the best methods to address it. As put by the Sentencing Commission, "Congress dispensed with much of the typical deliberative legislative process, including committee hearings." Id. at 117.

The legislative history proves that point rather effectively. For example, during the Senate floor debate on the 1986 Act, several senators commented that the bill was hastily prepared, rather than the product of a deliberative process, and was not enacted through the traditional committee procedure. As Senator Mathias explained, "this drug bill is a moving target

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.... the bill has changed so radically [in the 24 hours before the Senate debate]. You cannot quite get a hold on what is going to be in the bill at any given moment." 132 Cong.Rec. 26,462 (Sept. 26, 1986) (statement of Sen. Mathias). Senator Mathias stated:

I fear that in our haste to do something about drugs before the end of this session of Congress, in other words almost immediately, we are in danger of doing what Alexis deTocqueville warned us against 150 years ago: "flattering the passions." ... Very candidly, none of us has had an adequate opportunity to study this enormous package. It did not emerge from the crucible of the committee process, tempered by the heat of debate. The committees are important because ... they do provide a means by which legislation can be carefully considered, can be put through a filter, can be exposed to public view and public discussion by calling witnesses before the committee. That has not been the origin of this bill. Many of the provisions of the bill have never been subjected to committee review.

Id. Senator Dole remarked, "I have been reading editorials saying we are rushing a judgment on the drug bill and I think to some extent they are probably correct." 132 Cong.Rec. 26,434 (Sept. 26, 1986) (statement of Sen. Dole). Noting that the bill was being considered in September of an election year, Senator Evans remarked on the "sanctimonious election stampede of the House of Representatives, a stampede that trampled on the Constitution." 132 Cong.Rec. 26,441 (Sept. 26, 1986) (statement of Sen. Evans).

It is correct that Congress began to create the sentencing provisions of the 1986 Act in August of 1986, an election year, just after its July Fourth recess "during which public concern and media coverage of cocaine peaked as a result of the June 1986 death of NCAA basketball star Len Bias." 1995 Commission Report at 117. At that time, a "national sense of urgency surrounding drugs, generally and crack cocaine specifically" had developed, in no small part due to media attention to crack. Id. at 121. "In the months leading up to the 1986 elections, more than 1,000 stories appeared on crack in the national press, including five cover stories each in Time and Newsweek." Id. at 122.

At the time, when a media report labeled crack as "America's drug of choice," there, in fact, was no data on the prevalence of crack use, and subsequent data found powder cocaine to be the preferred form of cocaine by 95 percent of cocaine users. Id. at 122. Len Bias' death and its association with crack was mentioned eleven times during a July 15, 1986 hearing on crack cocaine by the Senate's Permanent Subcommittee on Investigations and that month "there were 74 evening news segments about crack cocaine, many fueled by the [apparently erroneous] belief that Bias died of a crack overdose." Id. at 123.4

Because the 1986 Act was expedited through Congress, the legislative record on its enactment is sparse. Id. at 116. Therefore, there is no legislative history that explains the rationale for selecting the 100-to-1 ratio. Id. at 117.5 However, the limited legislative history of the 1986 Act that does exist shows that Congress believed crack was more dangerous than cocaine

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powder and, for that reason, should be treated differently for sentencing purposes. Id. But, the legislative history also discloses that Congress' conclusion that crack was more dangerous than cocaine powder was predicated on several...

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1 practice notes
  • United States v. Fisher, No. S3 03 CR 1501 SAS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 11, 2005
    ...that the 100-to-1 ratio was not justified and that, therefore, the ratio should be reduced dramatically." United States v. Petersen, 143 F.Supp.2d 569, 577 60. Amendments to the Sentencing Guidelines, Policy Statements and Official Commentary, 60 Fed.Reg. 25074, 25074 (May 1, 1995). 61. See......
1 cases
  • United States v. Fisher, No. S3 03 CR 1501 SAS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 11, 2005
    ...that the 100-to-1 ratio was not justified and that, therefore, the ratio should be reduced dramatically." United States v. Petersen, 143 F.Supp.2d 569, 577 60. Amendments to the Sentencing Guidelines, Policy Statements and Official Commentary, 60 Fed.Reg. 25074, 25074 (May 1, 1995). 61. See......

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