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United States District Court, S.D. New York

October 11, 2005.

OTIS FISHER, Defendant.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  In the eleven years that I have served as a district court judge, I have been troubled by the exceedingly harsh sentences imposed on those who deal in crack cocaine.*fn1 I find it unsettling, for example, that a defendant who deals five grams of crack cocaine faces the same sentence as a defendant who deals five hundred grams of powder cocaine. This stark disparity is commonly referred to as the "100:1 ratio."*fn2

  Congress adopted the 100:1 ratio in 1986, setting mandatory minimum sentences based on the quantity of cocaine, in crack or powder form.*fn3 The Sentencing Commission, following Congress' lead, adopted the same ratio in 1987, when it fashioned the Drug Quantity Table found at section 2D1.1(c) of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). Under the Guidelines, the Drug Quantity Table determines a defendant's offense level, which ultimately controls the Guidelines sentence range.

  After the Supreme Court's decision in United States v. Booker,*fn4 the statutory minimum sentences remain mandatory, but the Guidelines can no longer bind a sentencing court. Indeed, it would be unconstitutional under Booker for a court to treat the Guidelines as mandatory and conclude that it could not impose a sentence above or below the sentencing range determined primarily by the Drug Quantity Table.

  In United States v. Crosby, the Second Circuit outlined sentencing procedures a court must follow after Booker.*fn5 First, the court must set the Guidelines range (including any departures) — here by applying the 100:1 ratio contained in the Drug Quantity Table. The court must then determine a reasonable sentence based on all of the factors listed in section 3553(a) of Title 18 of the United States Code ("section 3553(a)"). That section requires a court to impose a sentence that is "sufficient but not greater than necessary to comply with the purposes [of sentencing]."*fn6 To do this, a court must be free to impose a sentence above or below the range set by the Guidelines.

  This Opinion addresses the tension between a mandatory minimum sentence and a non-Guidelines sentence, the former based solely on the notion that crack cocaine dealers should be punished much more severely than powder cocaine dealers as a function of relative drug quantity. In short, the sentencing disparity created by the 100:1 ratio presents two significant dilemmas. First, the ratio is binding for one purpose — imposing the mandatory minimum sentence — but is not binding for the purpose of imposing the ultimate sentence. Second, the Guidelines sentence, determined primarily by drug quantity, is often inconsistent with section 3553(a) because it is greater than necessary to achieve the goals of sentencing. After a five-week jury trial, Otis Fisher was convicted of conspiracy to distribute crack cocaine (Count 1) and use of a firearm during a drug-trafficking offense (Count 2). On September 20, 2005, I sentenced Fisher to a non-Guidelines sentence of 151 months on Count 1 and a mandatory sixty consecutive months on Count 2, to be followed by a five-year period of supervised release. This Opinion sets forth my reasons for imposing a non-Guidelines sentence.


  A. The Offense Conduct

  1. The Organization

  Between 1999 and 2003, two of Fisher's co-defendants, Ricardo Rodriguez and Paul Thompson, were the leaders of an organization known as the Killer Bronx Committee or KBC, which distributed crack cocaine in the Bronx*fn7 and Vermont.*fn8 Its members included Fisher, Jason Rose, Junior Robinson, Damion Henry, Tai Todd, Stephen Reid, Kevin Jones, Kevin Brown, Tyrone Kindred, Orlando Gordon and others known and unknown.*fn9 Fisher, together with others, helped manage the organization's crack-selling operations.*fn10 The organization controlled the sale of crack cocaine on 228th Street between White Plains Road and Barnes Avenue in the Bronx.*fn11 Rodriguez and Thompson distributed crack cocaine to their sellers, including Fisher, Henry, Jones, and Reid, who then distributed it to the customers.*fn12 From January 2001 onward, KBC's crack cocaine business was very successful.*fn13 Members of the organization were selling large amounts of crack cocaine each day, and customers were constantly streaming into the organization's stash houses.*fn14 The organization branched out into Vermont in April 2003.*fn15

  Rock testified that she met Fisher in April 2003 in Winooski, Vermont.*fn16 Fisher and Rock began dating and Fisher soon moved into Rock's house.*fn17 Shortly thereafter, Fisher began bringing other KBC members to Rock's house for the purpose of selling crack cocaine.*fn18 Fisher and Rodriguez cooked crack cocaine inside Rock's house and, along with Robinson, packaged it there.*fn19 All of the members carried firearms while in Rock's house.*fn20 Rock testified that during the three to four month period that the organization sold crack cocaine from her home, she observed sales around the clock.*fn21 Beginning in October 2003, members of KBC ran their business from another location in Winooski, Vermont.*fn22 After several police officers raided Rock's house and arrested her, she did not see any KBC member again until trial.*fn23 In December 2003, the group returned to East 228th Street to resume selling drugs in the Bronx.*fn24 Detectives from the Bronx Gang Squad arrested KBC members over a two-day period beginning on January 26, 2004.*fn25

  2. Drug Quantity

  Cooperator testimony, from Kindred, Gordon and Rock, established that Fisher was a fully active and knowing participant in the group led by Rodriguez and Thompson. Fisher joined the group in 2001, after it took control of the crack cocaine trade on East 228th Street and White Plains Road. Specifically, Kindred testified that he observed Fisher obtain crack cocaine from Rodriguez and Thompson.*fn26 Kindred also testified that Fisher sold crack cocaine daily on the street, served as a lookout, and packaged crack cocaine in the group's stash houses.*fn27 Kindred further testified that Rodriguez and Thompson gave Fisher packages containing $130 or $260 worth of crack cocaine every day for months at a time.*fn28 Gordon similarly testified that he observed Fisher and his co-defendants sell over $260 worth of crack cocaine, per day, over a period of months between 2001 and 2002.*fn29 The testimony of Kindred and Gordon established that it was readily foreseeable to Fisher that he and his co-conspirators sold at least 1.5 kilograms of crack cocaine during the two year period that Fisher was a member.

  The testimony and evidence concerning the Vermont portion of the conspiracy only served to reinforce a finding that Fisher was responsible for selling more than 1.5 kilograms of crack cocaine. Rock witnessed Fisher and his co-defendants sell hundreds of pieces of crack cocaine from her home, ranging in value from $50 to $250.*fn30 Rock testified that 3.5 grams of crack cocaine sold for $250.*fn31 She testified that crack cocaine sales at her house took place around the clock.*fn32 Furthermore, Rock's testimony that Fisher was selling crack cocaine in Vermont is strongly corroborated by his arrest for possession of crack cocaine in Winooski, Vermont on October 20, 2003.*fn33

  In sum, the Government has proven, by a preponderance of the evidence, that Fisher is responsible for the distribution of more than 1.5 kilograms of crack cocaine.*fn34 Where a defendant participates in jointly undertaken criminal activity, he may be sentenced based on the criminal acts of his co-conspirators so long as the other acts were committed in furtherance of the conspiracy and could reasonably have been foreseen by the defendant.*fn35 Here, it was reasonably foreseeable that Fisher and his co-conspirators would distribute more than 1.5 kilograms of crack cocaine.

  B. The Guidelines

  In light of the Supreme Court's decision in United States v. Booker, the Guidelines are now advisory and no longer mandatory.*fn36 However, the "first step in post-Booker sentencing is to determine the applicable Guideline range after making such findings of facts as are necessary" such as drug quantity.*fn37 A court is required to consider this Guidelines range along with the sentencing factors set forth in section 3553(a).

  Defendant was convicted of participating in a drug conspiracy in violation of sections 846, 841(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code, which require a statutory minimum term of ten years. He was also convicted of aiding and abetting the use and carrying of firearms in furtherance of a narcotics conspiracy in violation of section 924(c)(1)(A)(i) of Title 18 of the United States Code, which requires a mandatory term of sixty months, consecutive to any other term of imprisonment.*fn38 Thus, the mandatory minimum term here is fifteen years in custody.

  Because I find defendant to be responsible for the possession and distribution of more than 1.5 kilograms of crack cocaine, his base offense level is 38. With respect to criminal history, the Government agrees with Fisher that he falls in Criminal History Category ("CHC") I, not CHC II as calculated by the Probation Department. The PSR assigned Fisher two criminal history points, one for each of two narcotics arrests that occurred on May 10, 2001 and November 18, 2002 in the Bronx. These arrests, however, were for conduct that was part of the offense of conviction. Pursuant to section 4A1.2 of the Guidelines, these convictions are excluded from the calculation of Fisher's criminal history.*fn39

  Accordingly, Fisher's Guidelines range, based on an offense level of 38 and a CHC of I, is 235-293 months in custody, to be followed by a mandatory consecutive sixty month term, requiring a total Guidelines sentence of 295 to 353 months in custody. Furthermore, there are no grounds here for a downward departure. Defendant's youth is not a ground, nor is his family background or his role in the offense.

  It is important to note that 1.5 kilograms of powder cocaine, as opposed to crack cocaine, would have required a base offense level of 26, resulting in a Guidelines range at CHC I of 63-78 months in custody. The difference between 63 and 235 months, the lowest end of the respective Guidelines ranges, is over fourteen years. This enormous difference makes little sense for the reasons set forth below.


  A. The 100:1 Ratio Although the 100:1 ratio has been sharply criticized by judges, scholars, and the Sentencing Commission itself, there was nothing to be done about it in the pre-Booker world.*fn40 "Since Booker, a number of courts, concerned by the disparity between crack cocaine and powder cocaine sentences imposed under the Guidelines, have imposed non-Guidelines sentences in cases involving crack cocaine."*fn41 As Judge Lynn Adelman recognized in United States v. Smith, "[c]ourts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing."*fn42

  Punishing crack cocaine dealers one hundred times more severely than powder cocaine dealers leads to the following results: (1) it unfairly targets low-level street sellers over major suppliers, (2) it has a disparate impact on black defendants over white and Hispanic defendants; (3) it has a disparate impact on younger offenders over older ones; and (4) it turns on the fortuity of whether the offender has cooked the powder into crack cocaine at the time of the arrest.*fn43 Furthermore, there is no rational basis in terms of pharmacological differences,*fn44 public opinion, or related violence to distinguish crack cocaine from powder cocaine at a ratio of one being one hundred times worse than the other.*fn45

  In studying recent sentencing statistics I have noted other surprising disparities: In the latest statistics released by the U.S. Sentencing Commission, crack cocaine offenders subject to mandatory minimum sentences received safety valve treatment less often that any other category of drug offenders.*fn46 Crack cocaine offenders received the safety valve only 12% of the time, whereas powder cocaine offenders received it 36% of the time, and heroin offenders 35% of the time.*fn47 The safety valve device is weighted against street level dealers, who often have several prior convictions for distributing small amounts of drugs to undercover agents in routine buy and bust cases. The same statistics showed that 76% of all crack cocaine offenders received a mandatory minimum sentence in 2003, and 48% of those offenders received the ten-year mandatory minimum term.*fn48 Finally, the average sentence for those who distribute powder cocaine is 81 months, as compared to 123 months for those who distribute crack cocaine.*fn49

  The figures for the race of defendants by drug type are striking. Eighty percent of those sentenced for crack cocaine distribution are black, while only 25% of those sentenced for powder cocaine distribution are black.*fn50 The figures are entirely reversed for Hispanics — only 10% of crack offenders are Hispanic while 56% of powder cocaine offenders are Hispanic.*fn51 The total minority percentage of defendants convicted of crack cocaine offenses is 92%, powder cocaine 83%, and heroin 87%.*fn52 Moreover, 50% percent of all drug offenders are thirty and under.*fn53 By contrast, 27% of those who are convicted of fraud offenses are thirty and under.*fn54 Thus, the heavy crack cocaine sentences called for by the Guidelines are disproportionately imposed on young black males.*fn55

  This 100:1 ratio has been repeatedly criticized by the Sentencing Commission, at one time by the Executive Branch, and by many courts, including two judges in this district and one judge of the Second Circuit. A brief summary of its history is in order. Although Congress adopted the 100:1 ratio in setting minimum sentences, the Sentencing Commission was not required to adopt the 100:1 ratio in the Guidelines.*fn56 In 1987, however, the Sentencing Commission adopted the 100:1 ratio in developing the Guidelines for cocaine offenses.*fn57 The 100:1 ratio came under heavy criticism from the start and, in 1994, Congress directed the Sentencing Commission to study and report on federal sentencing policy relating to all forms of cocaine.*fn58 The result was the Special Report to the Congress: Cocaine and Federal Sentencing Policy (the "Cocaine Report"), which was issued in February 1995. "In the Cocaine Report, the Sentencing Commission concluded that it could not support the penalty scheme in force."*fn59 On May 1, 1995, based on the Cocaine Report, the Sentencing Commission proposed to Congress several amendments to the Guidelines,*fn60 one of which recommended adopting a 1:1 equivalence between crack and powder cocaine.*fn61 Despite what has been described as an "extraordinary mea culpa" by the Sentencing Commission,*fn62 Congress rejected the Sentencing Commission's proposed amendments.*fn63

  Two years later, in response to a 1995 Congressional directive, the Sentencing Commission submitted a second report to Congress entitled Special Report to Congress: Cocaine and Federal Sentencing Policy (the "1997 Commission Report").*fn64 Congress took no action on the 1997 Commission Report, which proposed a range of alternatives for ameliorating the penalty differential for powder cocaine and crack cocaine*fn65 "On July 22, 1997, the Clinton Administration publicly proposed reducing the ratio to 10:1."*fn66 However, no bill was ever introduced to reduce the ratio.*fn67 In 1998, twenty-seven federal judges wrote to the chairmen of the House and Senate judiciary committees to express their "strongly held view that the current disparity between powder cocaine and crack cocaine, in both the mandatory minimum statutes and the guidelines, can not be justified and results in sentences that are unjust and do not serve society's interest."*fn68 Finally, in 2002, the Commission issued another report which did not propose Guidelines amendments, but effectively recommended reducing crack cocaine sentences to reflect a 20:1 ratio with powder cocaine.*fn69 Again, Congress took no action.

  Given the range in ratios proposed in the past, I conclude that a 10:1 ratio is sufficient to punish crack cocaine dealers more harshly than those who deal in powder cocaine. Using a 10:1 ratio, the 1.5 kilograms of crack cocaine for which defendant is responsible converts to fifteen kilograms of powder cocaine, which corresponds to offense level 34. At offense level 34, CHC I, defendant's Guidelines range is 151 to 188 months in custody. Because 1.5 kilograms of powder cocaine would have resulted in a sentence of 63-78 months in custody, this ten-fold disparity between crack and powder cocaine results in a seven-year difference in the sentencing range at the low ends. This is more reasonable than the fourteen-year disparity resulting from the 100:1 ratio. I also note that using a 10:1 ratio still places Fisher well above the statutory mandatory minimum of ten years required by Congress based on the possession of more than fifty grams of crack cocaine.

  The Government argues in favor of the 100:1 ratio, noting that Congress had a rational basis for punishing crack cocaine dealers more harshly than powder cocaine dealers and did not act with any improper race-based motivation. In addition, the Government argues that judges will create unwarranted sentencing disparities if they ignore the Guidelines ratio and instead create their own ratios. This will lead to variations in sentences based on each judge's view of the relative harm caused by each drug.

  A similar point of view is found in United States v. Tabor.*fn70 There, the court found that it was the will of Congress that crack cocaine dealers be punished one hundred times more harshly than those who deal in powder cocaine.*fn71 "[T]he crack cocaine Guidelines represent a reasoned and reasonable policy choice by Congress that should be given substantial deference."*fn72


In summary, Congress has made a choice regarding crack cocaine. To my way of thinking, it is not the best choice, but it is not a crazy one either. As a judge, I should defer to the choice of penalties that Congress has made for crack cocaine even though I would quickly do something different if it were within my proper role to choose. This is because judge-made changes to the crack Guidelines, while sometimes principled, are (1) undemocratic, and (2) not plainly superior to the judgments of Congress. We should maintain the status quo when exercising our Booker discretion within the context of the crack cocaine Guidelines because we are judges and not legislators and because the status quo is what Congress has chosen. When it comes to the severity of punishment, Congress has the right to be wrong.*fn73
  Congress implemented its decision to punish crack cocaine dealers more severely than powder cocaine dealers by imposing the same mandatory minimum terms for much smaller quantities of crack than powder cocaine. I recognize that the will of Congress must be obeyed. Accordingly, this Court would not and has not ignored Congress and imposed a sentence below the required statutory mandatory minimum term. However, the argument that courts must adhere to the 100:1 ratio in setting offense levels under the Guidelines suffers from a single, fatal flaw. Both the Government and the Tabor court have failed to recognize that the Guidelines are not an act of Congress. Furthermore, they are no longer mandatory according to the Supreme Court's decision in Booker.

  Given that the Guidelines are not an act of Congress, it does not subvert the will of Congress for a court to impose a non-Guidelines sentence if it concludes, after considering the individualized factors required by section 3553(a), that the Guidelines range creates unwarranted sentencing disparities. This is the teaching of Booker. If the Government's argument was correct, the 100:1 ratio found in the Guidelines would be binding and Booker would be a nullity.*fn74 It is the duty of each court to determine a reasonable sentence based on a consideration of all of the statutory factors. Thus, while the 100:1 ratio set by Congress in establishing statutory minimum sentences under section 841 must be respected by sentencing courts, the 100:1 ratio need not be followed in imposing sentences. B. The Section 3553 Factors

  Section 3553(a) sets forth the following factors that must be considered by a sentencing court in imposing every sentence:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.*fn75 Based on most of these factors,*fn76 I conclude that a sentence of 211 months in custody is sufficient, but not greater than necessary, to serve the required purposes of sentencing. Furthermore, I find that the 100:1 ratio creates unwarranted sentencing disparities and, in so doing, violates sections 3553(a)(2)(A) and (a)(6).
1. Section 3553(a)(1): Offense Characteristics
  This offense involved a crack cocaine distribution conspiracy based in the Bronx that used guns in furtherance of its criminal activities. Participation in such a conspiracy is, of course, a very serious crime and deserves a significant period of incarceration. Other members of this conspiracy are facing many years in custody with sentences as high as forty years, although some members have received sentences as low as five years.

  2. Section 3553(a)(1): Offender Characteristics

  Fisher, a black male, was born in Jamaica on August 5, 1981, and is twenty-three years old. Fisher and his mother lawfully immigrated to the United States in 1991, although he returned to Jamaica to attend high school. In 1998, Fisher graduated from the Arden High School in Kingston, Jamaica. Shortly thereafter, he returned to the United States. Fisher has been smoking marijuana since he was seventeen years old, but he does not drink alcohol. Fisher has a spotty and unverified employment history, having worked at a number of low-level jobs from 2000 to 2003, all of which were short-lived and "off the books." While he has two prior convictions that involved conduct that was part of this conspiracy, he has served only a few months in jail.

  3. Section 3553(a)(2): The Need for the Sentence Imposed

  Section 3553(a)(2)(A) requires a sentencing court to impose a sentence that reflects the seriousness of the offense, promotes respect for the law, and provides just punishment. A sentence of the length imposed is sufficient to meet all of these goals. A sentencing court must impose a sentence "sufficient, but not greater than necessary" to comply with the purposes of sentencing.*fn77 Here, the Guidelines range is based largely on the crack/powder cocaine disparity. A sentence within this range is greater than necessary to satisfy the purposes of sentencing. Fisher's sentence complies with section 3553(a) without imposing an unnecessarily harsh sentence on the defendant, or a burden on society to pay for an unduly lengthy period of incarceration. "A `just punishment' must . . . take into account the cost of the defendant's criminal conduct and the cost society must undertake to punish for the offense."*fn78

  With regard to section 3553(a)(2)(B), which requires adequate deterrence, Congress has concluded that crack-related offenses are to be punished more severely than offenses involving powder cocaine. To achieve general deterrence, therefore, Fisher's sentence must be significantly greater than what he would have received if he had dealt powder cocaine. A sentence of 151 months on the drug count is more than seven years longer than the sentence he would have received at the low end of the range if he had distributed powder cocaine. Such an enhanced sentence surely provides substantial deterrence to this defendant and to others who consider dealing in crack cocaine.

  Section 3553(a)(2)(C) requires the Court to consider the need to protect the public from future crimes by this defendant. Defendant will be over forty years old when he is released from custody. By that time, he should have obtained some education and learned a trade so that he can become a productive member of society upon release. And hopefully he will have renounced the drug trade forever. Although no one can predict the future, a sentence of 211 months sufficiently protects the public from any further crimes.

  Finally, with regard to section 3553(a)(2)(D), a sentence of this length will provide Fisher with educational and vocational training opportunities while in custody. Whether he takes advantage of these opportunities is his choice, but he will have the time to do so given the length of his sentence.

  4. Sections 3553(a)(3) and (a)(4): The Kinds of Sentences Available and the Sentencing Range

  Jail is required here and the only issue is the length of imprisonment. The Guidelines call for a sentence at the low end of 235 months in custody. This Guideline is driven solely by the amount of crack cocaine distributed by this defendant and his co-conspirators. As noted earlier, a similar weight of powder cocaine would have placed this defendant at offense level 26, which corresponds to a sentence of 63 to 78 months in custody. A difference of fourteen years at the low end of the Guidelines range, based simply on the different forms of the same drug, is unreasonable and cannot be countenanced by this Court.

  5. Section 3553(a)(6): The Need to Avoid Sentencing Disparity

  Avoiding sentencing disparity is particularly important when a court imposes a non-Guidelines sentence. The sentence called for by the Guidelines, based solely on the quantity of crack cocaine, creates an unwarranted disparity between powder cocaine and crack cocaine dealers. The Government argues that if courts do not use the 100:1 ratio, there will be unwarranted sentencing disparities. The problem is that the crack/powder cocaine ratio currently results in unwarranted disparities. To address this problem, courts must look at each offense and offender and decide on a reasonable sentence. This will inevitably lead to disparities in sentences but they will not be unwarranted. They will be based on reason, experience and common sense.


  The recommended Guidelines range for the drug count, 235 to 293 months in custody, substantially overstates the seriousness of the offense, especially when compared to the Guidelines range for an offense involving a comparable quantity of powder cocaine. To impose a sentence based on this inflated range creates unwarranted sentencing disparity. It is incumbent on sentencing courts to reduce such disparity whenever possible.

  Imposing a non-Guidelines sentence does not flout the will of Congress. This Court has accepted that it is the will of Congress to distinguish between those who deal in crack cocaine and those who deal in powder cocaine. I respect that and have applied a different (and much enhanced) measure in sentencing this defendant for dealing in crack cocaine. Based on all of the factors set forth in section 3553(a), Otis Fisher is sentenced to 151 months on Count One, to be followed by a mandatory consecutive term of five years, for a total of 211 months (approximately 17½ years) in custody to be followed by five years of supervised release.



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