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UNITED STATES v. BUCHANON

December 27, 1995

UNITED STATES OF AMERICA
v.
ANTHONY BUCHANON, Defendant.



The opinion of the court was delivered by: SCULLIN

 INTRODUCTION

 Defendant moves for an order imposing a sentence below the applicable statutory guidelines, or in the alternative, for a sentencing hearing pursuant to 18 U.S.C. § 3553 and section 5K2.0 of the Federal Sentencing Guidelines. Defendant makes two arguments in support of his motion.

 First, Defendant argues that the United States Sentencing Commission did not adequately consider the 100-to-1 ratio between cocaine powder and cocaine base ("crack cocaine") offenses as required by 28 U.S.C. §§ 994. Second, Defendant argues that the Court should impose the lesser penalty for cocaine powder by operation of the rule of lenity. Defendant argues that the rule of lenity is applicable in this case because 21 U.S.C. § 841(b)(1)(A)(iii) is ambiguous in that it is predicated upon scientifically meaningless distinctions between cocaine and cocaine base.

 BACKGROUND

 Defendant was charged in ten counts of an eleven count indictment with conspiracy, possession with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. §§ 841, 846. He was convicted on all ten counts on April 7, 1995.

 Defendant is subject to a mandatory minimum sentence of 10 years for his drug trafficking convictions pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), and faces a mandatory 5 year consecutive sentence for using a firearm in connection with his drug trafficking crimes pursuant to 18 U.S.C. §§ 924(c)(1).

 Defendant's base offense level under the Federal Sentencing Guidelines appears to be 32 after attributing 57 grams of crack cocaine, and 350 grams of powder cocaine to him. Defendant's criminal history appears to places him in Criminal History Category III. Thus, Defendant faces a guideline sentence of 151 to 188 months in prison, plus 60 additional months for his firearm conviction.

 DISCUSSION

 I. Statutory Challenge

 First, Defendant argues that the Sentencing Commission did not adequately consider the 100-to-1 ratio found in 21 U.S.C. § 841(b)(1)(A)(iii) when formulating the guidelines, and that this constitutes a "mitigating circumstance" supporting a downward departure from the Federal Sentencing Guidelines pursuant to 18 U.S.C. § 3553(b).

 A recent report of the Sentencing Commission contains numerous findings and arguments challenging the underpinnings of the 100-to-1 ratio and strongly recommends that Congress abandon it. UNITED STATES SENTENCING COMM'N, SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 198 et seq. (1995); *fn1" see also United States v. Then, 56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring) (stating that the Special Report found "scant evidence to support that crack poses a substantially greater threat to drug users or to society generally than does powder cocaine").

 However, Congress recently passed, and the President signed, legislation explicitly rejecting the Sentencing Commission's recommendations. See Pub. L. No. 104-38, 109 Stat. 334 (1995). In addition, Congress, not the Sentencing Commission, proposed and enacted the 100-to-1 ratio in the 1986 Anti-Drug Abuse Act. The 100-to-1 ratio has been thoroughly considered and debated by both the Sentencing Commission and Congress and remains intact today.

 Thus, the Court finds that the Sentencing Commission adequately considered the 100-to-1 ratio for offenses involving cocaine and cocaine base under 21 U.S.C. § 841(b)(1)(A)(iii). The Court will not depart downward from the ...


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