U.S. v. Ricks

• Citation: 494 F.3d 394
• Decision Date: 20 July 2007
• Docket Number: No. 05-4833.,No. 05-4832.,05-4832.,05-4833.
• Parties: UNITED STATES of America, Appellant, v. Michael RICKS and Marc Ricks, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

494 F.3d 394 UNITED STATES of America, Appellant,
v.
Michael RICKS and Marc Ricks, Appellees. No. 05-4832. No. 05-4833. United States Court of Appeals, Third Circuit. Argued January 23, 2007. Filed: July 20, 2007.

David E. Troyer, Ara B. Gershengorn, (Argued), Office of the United States Attorney, Philadelphia, PA, Attorneys for the United States of America.

David L. McColgin, (Argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, Attorney for Marc Ricks.

Gavin P. Holihan, Allentown, PA, Attorney for Michael Ricks.

Mark Osler, Baylor Law School, Waco, TX, Attorney for Amici Curiae American Civil Liberties Union Foundation Drug

[494 F.3d 395]

Law Reform Project, American Civil Liberties Union of Pennsylvania, Douglas A. Berman, Michael M. O'Hear, David N. Yellen, and David M. Zlotnick.

Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Marc Ricks pleaded guilty to a drug conspiracy charge and was sentenced to 135 months in prison. His brother, Michael Ricks, was sentenced to 168 months in prison after pleading guilty to drug conspiracy, conspiracy to commit murder-for-hire, and conspiracy to affect interstate commerce by robbery. The government appeals these sentences, arguing that they are unreasonable because the District Court improperly used a 20-to-1 crack/powder cocaine drug quantity ratio instead of the 100-to-1 ratio provided for in the Sentencing Guidelines. Because we conclude that courts may not categorically reject the 100-to-1 ratio, we will vacate both sentences and remand to the District Court for resentencing.¹

I.

Brothers Michael and Marc Ricks pleaded guilty to their crimes in January 2001 without plea agreements. They each reserved the issue of the quantity of drugs that should be attributed to them. After an evidentiary hearing, the District Court concluded that each brother was responsible for distributing at least 2000 grams of cocaine base ("crack"), 3000 grams of powder cocaine, and 30 grams of heroin.

Thereafter, the District Court held sentencing hearings for both brothers. The Court determined that Michael's imprisonment range under the Guidelines was 324 to 405 months, and then sentenced him, at the bottom of that range, to 324 months in prison. Subsequently, the Court determined that Marc's imprisonment range was 188 to 235 months, and sentenced him to 200 months in prison. Following appeals by both brothers, this Court affirmed their convictions and sentences. United States v. Michael Ricks, 96 Fed.Appx. 93 (3d Cir.2004); United States v. Marc Ricks, 96 Fed.Appx. 96 (3d Cir.2004). While their petitions for certiorari were pending, the Supreme Court rendered the Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we remanded both cases to the District Court for resentencing.

On remand, the District Court resentenced Michael Ricks applying a crack/powder cocaine drug quantity ratio of 20-to-1 instead of the Guidelines ratio of 100-to-1. Michael's revised range was 151 to 188 months in prison and the Court sentenced him to 168 months. Two days later, the Court resentenced Marc applying the same 20-to-1 ratio. Marc's new range was 121 to 151 months and the District Court sentenced him to 135 months in prison. Thus, compared to their initial sentences, Michael's time in prison was reduced by thirteen years and Marc's by about five and a half years. Viewed another way, Michael and Marc received sentences that were 156 months and 53 months below the bottom of their original Guidelines ranges.

II.

In determining whether the District Court properly sentenced Michael and Marc Ricks on remand, we first briefly review the relevant history of the 100-to-1

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ratio as well as our recent sentencing jurisprudence.

A.

Amidst growing public concern over the societal impact of cocaine, Congress passed the Anti-Drug Abuse Act of 1986. Pub.L. No. 99-570, 100 Stat. 3207 (1986). Although crack and powder cocaine are pharmacologically the same, the Act requires 100 times more powder cocaine than crack to trigger certain mandatory minimum prison terms. In particular, the Act mandates at least five years in prison for distribution of 500 grams of powder cocaine, but imposes the same penalty for distribution of just 5 grams of crack. 21 U.S.C. § 841(b)(1)(B). Similarly, distribution of 5000 grams of powder cocaine, but just 50 grams of crack, triggers the Act's ten-year mandatory minimum.² 21 U.S.C. § 841(b)(1)(A).

The 1986 Act was passed in expedited fashion and, as a result, its legislative history is limited. Indeed, "there were no committee hearings and no Senate or House Reports accompanying the bill that ultimately passed." U.S. Sentencing Comm'n Report to the Congress: Cocaine and Federal Sentencing Policy 5 (2002) [hereinafter "2002 Report"]. According to the Sentencing Commission, however, the individual statements of legislators at the time suggest that Congress believed crack was (1) especially addictive, (2) more likely to be connected with other serious crimes, (3) more likely to cause severely damaging physiological effects, (4) more attractive and accessible to young users, and (5) more prone to widespread use because of its "`purity and potency,' the cost per dose, [and] the ease with which it [was] manufactured, transported, disposed of, and administered." U.S. Sentencing Comm'n Special Report to the Congress: Cocaine and Federal Sentencing Policy 118 (1995) [hereinafter "1995 Report"].

In 1987, the Sentencing Commission incorporated the 100-to-1 ratio into the Guidelines' base offense levels and drug quantity table, and thereby established sentencing ranges for the full range of crack and powder cocaine quantities. See U.S.S.G. § 2D1.1(c). As a result, according to the Commission, sentencing ranges for crack offenses are three to six times longer than those for powder cocaine offenses involving equal amounts of drugs.³ 2002 Report at iv.

Over the years, judges, scholars, practitioners, public interest groups, and civic leaders have criticized the 100-to-1 ratio on a number of grounds. To date, the Sentencing Commission itself has issued four reports highlighting problems with the ratio and advising Congress to change it. In February 1995, at the request of Congress, the Commission studied the ratio and released a report unanimously recommending that the 100-to-1 ratio be

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reduced. Among other criticisms, the Commission noted that it disproportionately affected African Americans and sometimes forced district courts to punish low-level crack dealers much more severely than high-level powder cocaine suppliers. 1995 Report at xii-xiii. Soon after the issuance of this report, the Commission voted four to three to submit an amendment to Congress that would have equalized penalties based on drug quantities. See 60 Fed.Reg. 25,074 (May 10, 1995); 2002 Report at v. However, Congress passed and the President signed legislation rejecting the amendment and directing the Commission to submit new recommendations that would reflect the view that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine." Pub L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995).

In April 1997, the Commission issued its follow-up report and stated that it was "firmly and unanimously in agreement that the current penalty differential for federal powder and crack cocaine cases should be reduced." U.S. Sentencing Comm'n Special Report to the Congress: Cocaine and Federal Sentencing Policy 2 (1997) [hereinafter "1997 Report"]. More specifically, the Commission recommended that Congress reduce the ratio to 5-to-1 for purposes of the five-year mandatory minimum by increasing the threshold amount of crack and reducing it for powder cocaine.⁴ Id. at 9. The Commission believed these changes would more effectively accomplish the goals of federal drug sentencing policy. Congress, however, took no action.

In May 2002, at the request of the Chairman and Ranking Member of the Senate Judiciary Committee, the Commission issued a third report, which "again unanimously and firmly conclude[d]" that Congress should "decrease[] substantially" the 100-to-1 ratio. 2002 Report at viii. The Commission specifically recommended reducing the ratio to 20-to-1 by increasing threshold quantities for crack.⁵ It explained that the statutory and Guidelines penalties exaggerated the harmfulness of crack, swept too broadly to include low-level offenders, overstated the seriousness of most crack-related crimes, and disproportionately impacted minorities. Id. at v-viii. Congress again failed to act.

Finally, in May 2007, the Commission issued a fourth report that reiterated the conclusions of the 2002 Report. Without suggesting any particular ratio, the report "unanimously and strongly urge[d] Congress to act promptly" by increasing threshold quantities for crack. U.S. Sentencing Comm'n Report to the Congress: Cocaine and Federal Sentencing Policy 8 (2007) [hereinafter "2007 Report"].⁶ In addition, noting that "the problems associated with the 100-to-1 drug quantity ratio . . . are so urgent and compelling," the Commission submitted an amendment to Congress that would adjust crack quantities

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downward by two levels.⁷ Id. at 9-10. The amendment, which will take effect in November 2007 if Congress does not act, is "tailored. . . to fit within the existing statutory penalty scheme," and, as a result, provides only a "partial remedy." Id. As the report states, "[a]ny comprehensive solution requires appropriate legislative action by Congress." Id. at 10.

B.

Until 2005, the Guidelines provided mandatory sentencing ranges and thereby required district courts to impose prison terms reflecting the 100-to-1 ratio.⁸ The federal sentencing...