U.S. v. Shull, Case No. 2:07–CR–223.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Citation: 793 F.Supp.2d 1048
• Docket Number: Case No. 2:07–CR–223.
• Parties: UNITED STATES of America, Plaintiff,v.Robert H. SHULL, Defendant.
• Decision Date: 29 June 2011

793 F.Supp.2d 1048

UNITED STATES of America, Plaintiff,
v.
Robert H. SHULL, Defendant.

Case No. 2:07–CR–223.

United States District Court, S.D. Ohio, Eastern Division.

June 29, 2011.

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Timothy D. Prichard, United States Attorneys Office, Columbus, OH, for Plaintiff.Gordon Griswold Hobson, Jr., Federal Public Defender, Columbus, OH, for Defendant.OPINION & ORDER ALGENON L. MARBLEY, District Judge.I. INTRODUCTION

This matter is before the Court on Defendant Robert Shull's resentencing. A jury found Shull guilty on a two-count indictment. Count One was conspiracy to possess with intent to distribute over 50 grams of cocaine base in violation of 21 U.S.C. § 846, and Count Two was possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Shull appealed. The Court of Appeals reversed

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his conviction on Count One, and affirmed his conviction on Count Two.II. BACKGROUND A. THE OFFENSE

The evidence at trial showed that on January 20, 2007, Columbus police officers were conducting patrol while parked in a carwash parking lot. Late in the afternoon, a car with two African American men drove into the lot, and one of the officers recognized the man in the passenger seat as Robert Shull. The officer knew that he had an outstanding warrant for driving without a license. When Shull exited the vehicle along with the car's driver, the officers arrested him for the outstanding warrant. The officers then noticed a baggie that they suspected contained marijuana on top of the center console in the car, and they arrested the driver. The vehicle was later searched, and one small baggie and two large baggies containing crack cocaine were recovered. The crack was determined to weigh 52.9 grams.

After the jury found Shull guilty, this Court sentenced him to a term of 121 months on Counts One and Two with the sentences to run concurrently. Shull appealed, and the Sixth Circuit reversed his conviction on Count One, the conspiracy count. It affirmed his conviction on Count Two. The court held that because the two counts were grouped together for sentencing, Shull had to be resentenced. It vacated the sentence and remanded the case to this Court for resentencing. United States v. Shull, 349 Fed.Appx. 18, 22 (6th Cir.2009).

B. A BRIEF HISTORY OF CRACK COCAINE SENTENCING

The history of unfairness in crack cocaine sentencing is well known, but the inaccuracies it was based on and the injustices it caused make its retelling all the more necessary. During the 1980s, public concern surrounding drug abuse rose dramatically. See David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L.Rev.. 1283, 1286 (1995). As drug use was transformed from the typical social problem into a full-blown national crisis, crack was identified as society's most dangerous scourge. Increased inner-city and gang violence were blamed on the recently discovered drug, and allegations swirled that “crack babies” and child neglect were due to crack's potent addictive qualities. See Nekima Levy—Pounds, Can These Bones Live? A Look at the Impacts of the War on Drugs on Poor African—American Children and Families, 7 Hastings Race & Poverty L.J. 353, 356 (2010). When basketball player Len Bias overdosed on powder cocaine two days after being selected by the Boston Celtics as the second overall pick in the 1986 NBA Draft, many mistakenly believed his death to be the result of crack cocaine. His death sparked a media frenzy, and demands arose for harsh penalties and tough sentences. Id. at 356–57.

1. The Anti–Drug Abuse Acts of 1986 and 1988

Congress responded immediately with the Anti–Drug Abuse Act of 1986, Pub.L. 99–570, 100 Stat. 3207 (1986). Believing that crack was more addictive and potent than powder cocaine, spread rapidly due to its cheap costs, was closely connected to crime and violence, triggered perilous physiological effects, and was attractive for use and sale by youth, Congress enacted mandatory minimum sentences for drug trafficking offenses that were based on an 100:1 ratio between the weights of crack and powder cocaine. ¹ See United States

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Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy 9–10 (May 2002). The Sentencing Commission adopted this ratio in calculating its Sentencing Guidelines.² See U.S.S.G. § 2D1.1.

Under the federal statute, while five-hundred grams of powder triggered a five-year mandatory minimum, merely five grams of crack carried the same sentence. Five-thousand grams of powder, but only fifty grams of crack, led to at least ten years of incarceration. To put this into perspective, five grams is about the weight of a typical sugar packet (or 10 to 50 doses); five-hundred grams is more than two cups (or 2500 to 5000 doses). See 1995 Report at ix.

Prior convictions for drug offenses (including marijuana) would increase the mandatory minimums. Possession of five grams of crack with one prior drug conviction doubled the mandatory minimum to ten years. Possession of fifty grams of crack with one prior drug conviction doubled it to twenty years. And possession of fifty grams of crack with two prior drug convictions carried a mandatory sentence of life in prison without the possibility of parole. In practice, the sentences that resulted from the 1986 Act were no less absurd: a street-level dealer of crack cocaine received the same average sentence as an importer or high-level supplier of powder cocaine. See 2002 Report at 43.

Two years later, Congress passed the Anti–Drug Abuse Act of 1988, Pub.L. No. 100–690, 102 Stat. 4181 (1998), which further emphasized the alleged harmfulness of crack cocaine in comparison to both powder cocaine and other drugs. This Act created a mandatory minimum penalty for the simple possession of crack cocaine: possession of more than five grams of cocaine triggered a minimum five-year sentence. This law made crack cocaine the

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only drug with a mandatory minimum penalty for a first time offense of simple possession. By contrast, simple possession of any quantity of any other drug for a first-time offender, including powder cocaine, was a misdemeanor offense that carried a maximum penalty of one year of incarceration. In practice, an offender who simply possessed five grams of crack cocaine received the same five-year mandatory minimum sentence as a major trafficker of any other drug. See 1995 Report at v.2. The War on Drugs

The 1986 and 1988 Acts were part of a more comprehensive “War on Drugs,” which began in 1971 and accelerated in the mid–1980s. As part of this campaign, federal and state officials amended sentencing policies, adopted “tough on crime” legislation, and introduced harsh mandatory minimums. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 11, 47–57 (2010); Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 Stan. L. & Pol'y Rev.. 9, 10 (1999). Concomitant with the ratcheting up of penalties for drug offenders, Congress limited judicial discretion in sentencing. The confluence of these two trends has resulted in massive growth in incarceration that bears little correlation to crime rates. See Slansky at 1285; United States v. Bannister, 786 F.Supp.2d 617, 651, 2011 WL 1361539, at *30 (E.D.N.Y.2011) (“noting that [t]oday's high incarceration rate bears little relationship to the prevalence of crime”) (citing Philip J. Cook & Jens Ludwig, The Economist's Guide to Crime Busting 64, Wilson Q., Winter 2011).

Over the past thirty years, the adult prison population in the United States has skyrocketed from around 300,000 to 2.3 million—it is now the largest prison population in the world. The Pew Center on the States, One in 100: Behind Bars in America 5 (2008), available at http:// www. pewcenter onthestates. org/ uploaded Files/ 8015PCTS—Prison08—FINAL—2—1—1—FORWEB.pdf. This increase—in both State and Federal prisons—is mostly due to the rise of imprisoned drug offenders. See Alexander at 6. In Federal prisons, the population of drug offenders has risen from 4,749 to over 100,000—from a quarter to more than half of all federal inmates.³ Heather C. West, et al., Bureau of Justice Stat., U.S. Dep't of Justice, Prisoners in 2009 33 (2010), available at http:// bjs. ojp. usdoj. gov/ content/ pub/ pdf/ p 09. pdf; Bureau of Justice Stat., U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 519 (2003), available at http:// bjs. ojp. usdoj. gov/ index. cfm? ty= pbdetail& iid= 1219. Not only are there more drug offenders in our prisons, but they are spending more time there: on average, drug trafficking offenders serve longer federal sentences (seventy-eight months) than federal offenders convicted of manslaughter (sixty-seven months), arson (fifty-eight months), and assault (thirty-seven months). Bureau of Justice Stat., U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics, Table 5.31.2009 (2009), available at http:// www. albany. edu/ sourcebook/ pdf/ t 5312010. pdf.

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Taxpayers must bear the enormous costs of this over-incarceration, which now amounts to at least $70 billion a year. See Tracey Kyckelhahn, Bureau of Justice Stat., U.S. Dep't of Justice, Justice Expenditure and Employment Extracts, 2007 (2010), available at http:// bjs. ojp. usdoj. gov/ index. cfm? ty= pbdetail& iid= 2315; see also 74 Fed.Reg. 33,279 (July 10, 2009) (reporting that in 2008, the average annual cost of incarceration for federal inmates was $25,895).

If the current pace continues, one in three black men will go to prison at some point in their lives. See Thomas P. Bonczar, Bureau of Justice Stat., U.S. Dep't of Justice, Prevalence of Imprisonment in the U.S. Population, 1974–2001 8 (2003). This percentage can be traced to the War on Drugs' subjection of African Americans to high sentences and incarceration rates, neither of which can be...