U.S. v. Pickett

• Decision Date: 13 February 2007
• Docket Number: No. 05-3179.,05-3179.
• Citation: 475 F.3d 1347
• Parties: UNITED STATES of America, Appellee v. Lorenzo PICKETT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.3d 1347

UNITED STATES of America, Appellee v. Lorenzo PICKETT, Appellant.

No. 05-3179.

United States Court of Appeals, District of Columbia Circuit.

Argued November 20, 2006.

Decided February 13, 2007.

Appeal from the United States District Court for the District of Columbia (No. 01cr00181-01).

A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.

Valinda Jones, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III and Rachel Carlson Lieber, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge.

Under one of the United States Sentencing Guidelines it takes 100 times more powder cocaine to get a drug trafficker the same sentence he would receive for dealing crack cocaine. The issue in this appeal is whether a judge considering the factors set forth in 18 U.S.C. § 3553(a) may ignore how the 100-to-1 ratio affects those factors in crack cocaine cases.

I.

In 2002, Lorenzo Pickett pled guilty to distributing more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Pickett agreed that for sentencing purposes he was accountable for more than fifty grams but less than 150 grams of crack. Using the Guidelines, the district court calculated Pickett's sentencing range as 140 to 175 months, and sentenced him to 158 months. On Pickett's appeal, the government conceded that his criminal history score should have been reduced by three points. Both parties agreed that the correct Guidelines range after this adjustment was 121 to 151 months.

We remanded the case. Before resentencing, the Supreme Court decided United States v. Booker. The parties filed new sentencing memoranda. Pickett argued that the district court should impose a sentence below the Guidelines range, taking into account the unwarranted disparity between Guideline sentences based on the weight of crack as opposed to powder cocaine.¹ The district court declined to rule on the issue because it "has been decided by at least one, and maybe more than one of my colleagues on the bench. . . . So therefore, that issue is going up to the Court of Appeals. And I am not prepared to decide it at this time." The court sentenced Pickett to 121 months, the bottom of the Guidelines range.

II.

A.

Before the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1987 criminal penalties typically were indeterminate — for instance, five years to life, or not more than twenty years. Within the statutory range, federal judges had discretion to impose whatever term of imprisonment they saw fit. Their judgment could be based on the personal characteristics of the defendant, the nature of the crime, the need to deter others, their sentencing philosophy, and so forth. No rule of law required a sentencing judge to give reasons for a sentence, and appellate review was not available. The time a defendant actually served depended only partly on the sentence. With the United States Parole Commission determining release dates, the typical defendant served only fifty-eight percent of the sentence imposed. U.S. SENTENCING COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING xviii (Nov.2004) ("2004 Report").

"The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity. . . . Evidence that similar offenders convicted of similar offenses received, at times, grossly dissimilar criminal punishment struck a critical nerve among key legislators." Kenneth R. Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 WAKE FOREST L. REV. 291, 295 (1993). To eliminate these disparities and to accomplish the other objectives of sentencing, the Sentencing Reform Act of 1984 charged the Sentencing Commission with the task of promulgating guidelines federal judges would be required to apply.

In formulating its first set of guidelines, "the Commission decided to base guideline ranges on the existing average time served," as revealed in a study the Commission conducted. 2004 Report at 47. The Commission had begun work on a guideline for drug trafficking offenses when Congress passed the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, of which 21 U.S.C. § 841 was a part. In § 841, Congress specified mandatory minimum sentences for a wide range of drug trafficking offenses, each triggered by the weight of the "mixture or substance containing a detectable amount" of the particular drug. 21 U.S.C. § 841(b).

The 1986 Act created a problem for the Commission. As is well understood, mandatory minimum sentencing statutes are inconsistent with the objectives of the Guidelines to provide "a substantial degree of individualization in determining the appropriate sentencing range" and to impose "graduated, proportional increases in sentence severity for additional misconduct or prior convictions." U.S. SENTENCING COMM'N, MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 25 (Aug.1991). "The application of lengthy penalties to all persons based solely on whether they fit the statute-defined criteria (drug type and amount) results in a problem that is common to all mandatory minimum statutes — unwarranted uniformity." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 166-68 (Feb.1995) ("1995 Report"); see also Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 847-48 (1992). Whether in passing the 1986 Act Congress considered these problems, and others, is unknown and unknowable. In the Commission's view, the purpose of the Act was "to establish a two-tiered penalty structure for most drugs," with a five-year mandatory minimum for managers of retail trade and a ten-year minimum for heads of organizations and wholesalers. 2004 Report at 48; 1995 Report at 118.

The drug trafficking guideline the Commission ultimately promulgated did not follow this two-tiered approach. Instead, it extended the § 841 drug "quantity-based approach across 17 different levels [of quantity] falling below, between, and above the two amounts specified" in the statute as triggers for mandatory minimum sentences. 2004 Report at 49. For example, defendants receive a base offense level of thirty-two for dealing at least 1,000 but less than 3,000 grams of heroin, or at least 500 grams but less than 1,500 grams of methamphetamine, or at least 5,000 but less than 15,000 grams of powder cocaine, or — as in Pickett's case — at least fifty but less than 150 grams of crack cocaine. U.S.S.G. § 2D1.1(c)(4) (Drug Quantity Table). Put another way, for purposes of sentencing, 1,000 grams of heroin equals fifty grams of crack cocaine equals 5,000 grams of powder cocaine.

At the time it issued this Guideline the Commission did not explain why it decided to extend the 1986 Act's "quantity-based approach in this way." 2004 Report at 49. But it soon became clear that with respect to cocaine, the Guideline's use of the 100-to-1 ratio between powder and crack cocaine raised significant problems. See id. at 50. As a result of the Guideline, "the sentencing guideline range (based solely on drug quantity) is three to over six times longer for crack cocaine offenders than powder cocaine offenders with equivalent drug quantities, depending on the exact quantity of the drug involved." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 11 (May 2002) ("2002 Report"). With respect to all drug trafficking offenses, the emphasis on drug quantity distorted the importance of that element as compared with other offense characteristics. 2004 Report at 50. With respect to cocaine, the Commission concluded that although powder cocaine, which is usually snorted, was less addictive than crack cocaine, which is smoked, see United States v. Brisbane, 367 F.3d 910, 911 (D.C.Cir.2004), this difference could not account for the 100-to-1 ratio. All forms of cocaine are addictive. The "current penalty structure — which yields a five-year mandatory minimum sentence for ten to fifty doses of crack cocaine compared to 2,500 to 5,000 doses of powder cocaine — greatly overstates the relative harmfulness of crack cocaine."² 2002 Report at 93.

For these and other reasons we will mention later, the Commission issued a report in 1995 criticizing the ratio. Later that year the Commission proposed to Congress an amendment to the Guidelines eliminating the differential treatment of crack and powder cocaine. See 60 Fed. Reg. 25,074 (May 10, 1995). Pursuant to 28 U.S.C. § 994(p), Congress rejected the Commission's proposal and directed it to study the matter further. See Pub.L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995). The Commission did so and sent another report to Congress in 1997, this time recommending an amendment to the mandatory minimum statute, 21 U.S.C. § 841: "the current 500-gram trigger for the five-year mandatory minimum sentence [for powder cocaine] should be reduced to a level between 125 and 375 grams, and for crack cocaine, the five-gram trigger should be increased to between 25 and 75 grams." U.S. SENTENCING COMM'N, COCAINE AND FEDERAL SENTENCING POLICY 9 (Apr.1997). Congress did not amend § 841 in response. In 2002 the Commission issued an even more extensive report setting forth in detail the defects in the current system for sentencing cocaine trafficking offenders and recommending an amendment to § 841 incorporating a 20-to-1 ratio between powder and crack cocaine. 2002 Report at A1-A10. Again Congress did not act on the recommendation. The Commission's 2004 report on fifteen years of sentencing under the Guidelines also advocated altering...