U.S. v. Pho

Decision Date05 January 2006
Docket NumberNo. 05-2461.,No. 05-2455.,05-2455.,05-2461.
PartiesUNITED STATES of America, Appellant, v. Sambath PHO, Defendant, Appellee. United States of America, Appellant, v. Shawn Lewis, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, Lee Vilker and Peter F. Neronha, Assistant United States Attorneys, were on brief, for appellant.

Edward C. Roy, Jr., Assistant Federal Public Defender, for appellee Pho.

Kevin J. Fitzgerald, Assistant Federal Public Defender, for appellee Lewis.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

In these consolidated appeals, we are called upon to answer a vexing question of first impression at the appellate level: May a federal district court, consistent with the teachings of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand? The court below believed that it could and sentenced the defendants in accordance with that belief. After careful consideration, we conclude that the district court's approach was incorrect as a matter of law. Consequently, we vacate the defendants' sentences and remand for resentencing.


We start by limning the history of the disparate treatment of crack and powdered cocaine embedded in the federal sentencing guidelines (commonly referred to as the 100:1 ratio). We move from there to a brief glimpse of how that differential fared in our pre-Booker jurisprudence.

A. The Crack-to-Powder Disparity.

The sentencing differential for crack and powdered cocaine offenses had its genesis in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986) (codified in pertinent part at 21 U.S.C. § 841) (the Act).1 That legislation created two mandatory sentencing ranges for drug offenses. See id. § 1002 (codified at 21 U.S.C. § 841(b)(1)). The lower bracket spanned periods of imprisonment ranging from a mandatory minimum of five years to a maximum of forty years; the higher bracket spanned periods of imprisonment ranging from a mandatory minimum of ten years to a maximum of life. See id. Congress prescribed the threshold quantities of both crack and powdered cocaine needed to bring a particular offense within either bracket. See id. Despite the chemical identity of crack and powdered cocaine, Congress set widely disparate threshold quantities for the two drugs, requiring one hundred times more powdered cocaine than crack cocaine to trigger inclusion in a particular range. See id. (setting the threshold quantities for the lower range at five hundred grams of powdered cocaine and five grams of cocaine base and the threshold quantities for the higher range at five kilograms and fifty grams respectively). Thus, for sentencing purposes, Congress treated one unit of crack on par with one hundred units of powder.2

Congress grounded this differential on its determination that crack cocaine and powdered cocaine are not fair congeners and that, all other things being equal, offenses involving the former pose a more serious societal danger than offenses involving the latter. See U.S. Sentencing Comm'n, Special Report to Congress: Cocaine and Federal Sentencing Policy 117-18 (1995) (1995 Report). In particular, Congress found that crack cocaine was more likely to (i) induce addiction; (ii) correlate with the incidence of other serious crimes; (iii) implicate especially vulnerable members of society; (iv) cause deleterious physiological effects; and (v) attract youthful users. Id. at 118.

Shortly after passage of the Act, the Sentencing Commission issued the initial compendium of federal sentencing guidelines. The Commission built the base offense levels for crimes involving crack and powdered cocaine around the threshold quantities set by Congress. This architectural decision comported with Congress's discernible intent. See 28 U.S.C. § 994(i)(5) (requiring the Commission to "specify a sentence to a substantial term of imprisonment" for offenders convicted of "trafficking in a substantial quantity of a controlled substance"). Consistent with its congressionally imposed obligation to "reduc[e] unwarranted sentence disparities," id. § 994(f), the Commission also fixed the guideline sentences for offenses involving non-threshold quantities of crack and powdered cocaine in accordance with the 100:1 ratio. See generally USSG § 2D1.1, cmt. (backg'd.) (concluding that "a logical sentencing structure for drug offenses" requires coordination with mandatory minimum sentences). Thus, while Congress designed the 100:1 ratio to operate at the minimum and maximum poles of the mandatory statutory sentencing ranges, it was the Commission that incorporated the ratio root and branch into its calculation of every cocaine offender's guideline sentencing range (GSR).

Over time, Congress began to have second thoughts about the wisdom of this dichotomy. As part of the Mandatory Minimum Reform Act of 1994, Congress enacted a safety valve provision, which provided a vehicle for lowering mandatory minimum sentences in a narrow subset of drug cases. See 18 U.S.C. § 3553(f); see also United States v. Matos, 328 F.3d 34, 38-42 (1st Cir.2003) (describing the operation of the safety valve). That same year, Congress directed the Sentencing Commission to study the crack-to-powder ratio and to submit recommendations anent its retention or modification. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 280006, 108 Stat. 1796, 2097 (1994).

The 1995 Report embodied the Commission's response to this directive. Based on its review of the available data, it concluded that "it [could] not recommend a ratio differential as great as the current 100-to-1 quantity ratio," 1995 Report at 196, and suggested that the ratio "be re-examined and revised," id. at 197. At the same time, however, the Commission determined that empirical data supported Congress's core finding that "crack cocaine poses greater harms to society than does powder cocaine," id. at 195, and that, therefore, "important distinctions between the two may warrant higher penalties for crack," id. at xii. The Commission advised Congress that it would present more comprehensive recommendations at a future date. Id. at 198-200.

Notwithstanding its acknowledgment that higher penalties for crack offenses were justified, the Commission subsequently proposed guideline amendments designed to eliminate entirely the sentencing differential between crack and powdered cocaine. See Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 60 Fed.Reg. 25,074, 25,075-25,076 (May 10, 1995). To accomplish this objective, the Commission called for reducing the base offense levels for crack offenses to the base offense levels for offenses involving equivalent quantities of powdered cocaine.

Congress held hearings on the Commission's recommendation. See 28 U.S.C. § 994(p) (providing that proposed guideline amendments must be submitted to Congress, which may "modif[y] or disapprove[ ]" them). It found that "the evidence overwhelmingly demonstrates significant distinctions between crack and powder cocaine." H.R.Rep. No. 104-272, at 3 (1995), reprinted in 1995 U.S.C.C.A.N. 335, 337. Congress also determined that a change in the guideline sentencing structure unaccompanied by a corresponding change in statutory mandatory minimums would result in "gross sentencing disparities" between offenses involving drug quantities around the threshold levels. Id. at 4. Based on these considerations, Congress rejected the Commission's proposed guideline amendments. See Pub.L. No. 104-38, § 1, 109 Stat. 334, 334 (1995).

Two years later, the Commission issued a follow-up report. See U.S. Sentencing Comm'n, Special Report to Congress: Cocaine and Federal Sentencing Policy (1997) (1997 Report). In that document, the Commission reiterated both its position that the 100:1 ratio was excessive, id. at 2, and its conclusion that "federal sentencing policy must reflect the greater dangers associated with crack," id. at 4. The Commission 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 powdered cocaine. Id. at 2, 5, 9. Even though this report prompted the introduction of several bills aimed at reducing or eliminating the crack-to-powder disparity, Congress took no action.

In late 2001, members of the Senate Judiciary Committee invited the Sentencing Commission to update the Commission's views vis-à-vis the 100:1 ratio. The following year, the Commission issued a third report. See U.S. Sentencing Comm'n, Report to the Congress: Cocaine and Federal Sentencing Policy (2002) (2002) Report). In it, the Commission again advocated narrowing the gap that separated crack cocaine offenses from powdered cocaine offenses because (i) more recent data suggested that the penalties were disproportionate to the harms associated with the two drugs; (ii) the dangers posed by crack could be satisfactorily addressed through sentencing enhancements that would apply neutrally to all drug offenses; and (iii) the severe penalties for crack offenses seemed to fall mainly on low-level criminals and African Americans. Id. at v-viii. The Commission hastened to add, however, that crucial differences existed "in the intrinsic . . . and other harms" attributable to the two forms of cocaine and acknowledged that these differences justified stiffer penalties for crack offenses. Id. at 92. Taking into account these competing centrifugal and centripetal forces,...

To continue reading

Request your trial
75 cases
  • U.S. v. Handy
    • United States
    • U.S. District Court — Eastern District of New York
    • August 4, 2008
    ...judges to pronounce broad policy choices rather than specific sentences based on the specific facts of a case."); United States v. Pho, 433 F.3d 53, 64-65 (1st Cir.2006) ("[S]entencing decisions must be done case by case and must be grounded in case-specific considerations, not in general d......
  • U.S. v. Jones
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 24, 2008
    ...to treat crack cocaine dealers on the same, or some different judicially-imposed, plane as powder cocaine dealers."); United States v. Pho, 433 F.3d 53, 63 (1st Cir.2006) ("[T]he district court's categorical rejection of the 100:1 ratio impermissibly usurps Congress's judgment about the pro......
  • U.S. v. Griffin
    • United States
    • U.S. District Court — District of Massachusetts
    • June 6, 2007
    ...sought to preserve the Sentencing Guidelines as far as possible without directly confronting Constitutional Booker. In United States v. Pho, 433 F.3d 53 (1st Cir.2006), the First Circuit recognized the advisory nature of the sentencing guidelines, but also held that a district court is not ......
  • U.S. v. Valencia-Aguirre
    • United States
    • U.S. District Court — Middle District of Florida
    • January 9, 2006
    ...Commission. As stated in Judge Selya's opinion (garnished, as always, by his delightful and exotic diction) in United States v. Pho, 433 F.3d 53, 61 (1st Cir.2005) (which appeared as this order neared completion): In our constitutional system, the power to define penalties for federal crime......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT