U.S. v. Santana

• Decision Date: 20 January 2011
• Docket Number: Case No. 09–CB–1022(KMK).
• Citation: 761 F.Supp.2d 131
• Parties: UNITED STATES of Americav.Elvis SANTANA et al., Defendants.
• Court: U.S. District Court — Southern District of New York

761 F.Supp.2d 131

UNITED STATES of America

v.Elvis SANTANA et al., Defendants.

Case No. 09–CB–1022(KMK).

United States District Court, S.D. New York.

Jan. 20, 2011.

Douglas B. Bloom, Esq., Nicholas L. McQuaid, Esq., United States Attorney's Office White Plains, NY, for the Government.Thomas F.X. Dunn, Esq., New York, NY, for Defendant James McCrae.Alexander E. Eisemann, Esq., New York, NY, for Defendant William Anderson.Edward D. Wilford, Esq., New York, NY, for Defendant Pierre Myke.Mark S. DeMarco, Esq., Bronx, NY, for Defendant Fred Cannon.Prof. Douglas A. Berman, Esq., Columbus, OH, Amicus Curiae Supporting Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Defendants William Anderson, Fred Cannon, James McCrae, and Pierre Myke, joined by co-defendants, move for an order from this Court declaring that the provisions of the Fair Sentencing Act of 2010 (“FSA” or “Act”) are applicable to their sentences in this case.¹ (Dkt. Nos. 257, 268, 282, 296.) For the reasons stated herein, the motions are DENIED.

I. Background

A. Facts

The forty-one Defendants in this case are charged in a three-count indictment, Count One of which alleges conspiracy to distribute and possess with intent to distribute controlled substances, specifically cocaine base (in a form commonly known as crack) and powder cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). (Indictment (Dkt. No. 2) ¶¶ 3–4, 7–8.) ² The Defendants are alleged to have been part of a drug conspiracy known as the “Santana Organization.” ( Id. ¶ 1.) The “core members” of the organization—Defendants Elvis Santana, Danny Bueno, Angel Delacruz, and Emmanuel Martinez ( id. ¶ 2)—are alleged to have supplied narcotics to various distributors, the other Defendants in the case, ( id. ¶¶ 2–3, 5). The alleged conspiracy existed between February and October 2009. ( Id. ¶ 6.)

B. Procedural History

Forty-three Defendants were indicted on October 22, 2009, and the indictment was unsealed one month later.³ (Dkt. Nos. 2, 3.) Since then, a number of the originally indicted Defendants have pled guilty, including some of the movants here, with some of those seeking adjournment of their sentences pending the Court's determination of the pending motions.⁴ Others, who have not yet pled guilty, represent that the quantity of crack distribution for which they are alleged to be responsible means that their sentence could be lower if the FSA applies to them, and are, therefore, holding off on pleading guilty. For example, counsel for Defendant James McCrae represents that the government attributes 195 grams of crack cocaine to him, and depending on whether the FSA applies to him, he would face only a five-year mandatory minimum sentence (and not ten), and the low end of his Guideline range could vary by up to twenty-three months. (Letter from Thomas F.X. Dunn to the Court (Sept. 29, 2010) (“McCrae Br.”) (Dkt. No. 268) 1–2.) Defendant William Anderson is in a similar position, with his counsel representing that the highest quantity attributable to Anderson is 112 grams of a “mix” of crack and powder cocaine with crack constituting over 50 grams of that figure, and that Anderson will plead guilty if the FSA applies to him. (Decl. of Alexander E. Eisemann in Supp. of Mot. Regarding the Fair Sentencing Act of 2010 (“Eisemann Decl.”) (Dkt. No. 297) ¶¶ 2, 4.) Thus, at least some of the defendants who have joined in these motions either have pled guilty and are awaiting sentence, or are holding off on a decision to plead guilty until they know what mandatory minimum sentences they face. The Court held oral argument on these motions on December 8, 2010.

II. Discussion

The question these motions present is whether the changes in the mandatory minimum sentences for cocaine trafficking offenses made in the FSA apply to the remaining Defendants in this case, who have not yet been sentenced but who have been convicted, or accused, of conspiring to distribute cocaine base prior to the passage of the Act.

A. The 1986 Anti–Drug Abuse Act of 1986 and the FSA

The FSA was enacted on August 3, 2010. See Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372 (2010). Prior to the Act's passage, the sentencing provision applicable to the drug offenses alleged here, 21 U.S.C. § 841(b), equated 1 gram of crack cocaine or cocaine base with 100 grams of powder cocaine. See 21 U.S.C. § 841(b) (2009) (“§ 841(b)”); Kimbrough v. United States, 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Stevens, 19 F.3d 93, 96 (2d Cir.1994). When Congress enacted this “100–to–1 ratio,” in the Anti–Drug Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (1986) (“the 1986 Act”), it “considered cocaine base to be more dangerous to society than [powder] cocaine because of crack's potency, its highly addictive nature, its affordability, and its increasing prevalence.” United States v. Buckner, 894 F.2d 975, 978 (8th Cir.1990); see also id. at 978–79 & n. 9 (detailing legislative history of the 1986 Act).⁵ Therefore, 21 U.S.C. § 841(b) provided for a mandatory minimum sentence of ten years for any offender convicted of a distribution-related crime involving 5 kilograms or more of powder cocaine or 50 grams or more of crack, and of five years for any offender convicted of the same involving 500 grams or more of powder cocaine and 5 grams or more of crack. 21 U.S.C. §§ 841(b)(1)(A)-(B) (2009). All but eighteen lawmakers voted in favor of this sentencing scheme in 1986. See Michael B. Cassidy, Examining Crack Cocaine Sentencing in a Post–Kimbrough World, 42 Akron L. Rev. 105, 111 (2009) (“Feeling pressure from the public to address the nation's growing drug problem, Congress passed the [1986] Act in haste.”). The Sentencing Commission then incorporated the 100–to–1 ratio into the Sentencing Guidelines for all crack and powder cocaine offenses. See id. at 111–12. ⁶

Within a few years of the 1986 Act, a chorus of critics, including practitioners, public officials (including judges), and scholars, questioned Congress's factual assumptions regarding the relative dangers of crack and powder cocaine and the extent to which trafficking in each drug is associated with violence. See, e.g., id. at 132–33 (noting that studies dating back to the 1990s challenged the factual premises of the 1986 Act); William W. Schwarzer, Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 S. Cal. L. Rev. 405, 409 (1992) (noting the view that there was inadequate evidence to substantiate the belief that crack was substantially more dangerous than powder cocaine). These authorities also have contended, as far back as the early 1990s, that the 100–to–1 ratio produced significant racial disparities in sentencing, as the vast majority of crack defendants subject to the mandatory minimums for offenses involving small quantities of the drug are and have been African–American. See, e.g., Kimbrough, 552 U.S. at 97–99, 128 S.Ct. 558 (describing reports of the United States Sentencing Commission calling into question the 100–to–1 ratio based on its disparate impact on minorities); Gerald W. Heaney, The Reality of Guidelines Sentencing; No End to Disparity, 28 Am. Crim. L. Rev. 161, 205–06 (1991) (noting data suggesting that one reason for disproportionately higher sentences for African–American offenders was the 100–to–1 ratio between crack and powder cocaine); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1285–1302 (1995) (arguing that the 1986 Act discriminates against African Americans); see also Lynette Clemetson, Judges Look to New Congress for Changes in Mandatory Sentencing Laws, N.Y. Times, Jan. 9, 2007, at A12 (“At a sentencing commission hearing in November, Judge Walton, associate director of the White House Office of National Drug Control Policy under the first President George Bush and a onetime supporter of tough crack cocaine sentences, said it would be ‘unconscionable [because of the resulting disparate impact on minority offenders] to maintain the current sentencing structure’ on crack cocaine.”). But see Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255, 1268–69 (1994) (criticizing equal protection objections to crack-cocaine sentencing ratios, in part on the argument that “[i]f it is true that blacks as a class are disproportionately victimized by the conduct punished by [such statutes], then it follows that blacks as a class may be helped by measures reasonably thought to discourage such conduct”). The Fair Sentencing Act represents Congress's response to these concerns. See 156 Cong. Rec. S1680–81 (daily ed. Mar. 17, 2010) (statement of Sen. Richard Durbin) (“We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust”).

The FSA's stated purpose is to “restore fairness to Federal cocaine sentencing.” FSA pmbl. It attempts to effect this purpose by taking three actions relevant here. First and most importantly, section 2 of the Act raises the quantity of crack triggering the five- and ten-year mandatory minimum sentences from 5 to 28 grams for a mandatory five-year sentence and from 50 to 280 grams for a mandatory ten-year sentence. FSA § 2(a) (codified at 21 U.S.C. §§ 841(b)(1)(A)(ii)—(iii), (B)(ii)—(iii)). This change has the effect of replacing the 100–to–1 ratio with an 18–to–1 ratio in sentencing treatment of offenses involving equivalent amounts of crack and powder cocaine.⁷ Second, section 3 eliminates entirely the mandatory minimum sentence that previously had been applicable to simple possession of crack. Id. § 3 (codified at 21 U.S.C. § 844(a)). Third, the Act directs the Sentencing Commission to promulgate “such conforming amendments to the Federal sentencing...