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United States v. Ortiz

March 17, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL ORTIZ, REGISTER NO. 55921-054, FCI OTISVILLE, DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

This case presents a question of first impression in this district, i.e., whether a crack cocaine offender whose original sentence of imprisonment reflected a downward departure from the statutory minimum qualifies for a sentence reduction pursuant to recent amendments to the United States Sentencing Guidelines for offenses involving crack cocaine.

On July 1, 2004, Michael Ortiz ("Ortiz" or "Defendant") pleaded guilty to one count of conspiracy to possess and distribute more than 50 grams of cocaine base, one count of brandishing a firearm in a drug trafficking offense and one count of possession of firearms by a convicted felon. On August 4, 2005, this Court sentenced Ortiz to a 60-month term of incarceration and a three-year term of supervised release.*fn1 Ortiz is currently scheduled to be released on June 22, 2008. This Court has considered whether Ortiz qualifies for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), in light of the recent amendments to the United States Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") for offenses involving crack cocaine. For the reasons stated below, despite compelling policy reasons that favor a reduced sentence, Ortiz has not met the statutory requirements for a sentence reduction.

I. BACKGROUND

Pursuant to a cooperation agreement with the Government, on July 1, 2004, Ortiz pleaded guilty to (1) one count of conspiracy to possess and distribute more than 50 grams of cocaine base between 1997 and January 27, 2004, in violation of 21 U.S.C. §§ 846, 812, 841 and 841(b)(1)(A); (2) one count of brandishing a firearm in a drug trafficking offense on January 22 and 23, 2004, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (2); and (3) one count of possession of firearms by a convicted felon between at least September 12, 2003 and January 23, 2004, in violation of 18 U.S.C. § 922(g)(1).

Because Ortiz consented to the filing of a prior felony information, the statutory sentence range for count one was 20 years' (240 months') to life imprisonment, and the statutory mandatory minimum sentence for count two was 7 years' (74 months') imprisonment, to run consecutive to any other sentence. Thus, absent relief pursuant to 18 U.S.C. § 3553(e), Ortiz faced a mandatory minimum of 27 years' (324 months') imprisonment.

During the sentencing hearing on August 4, 2005, the Government moved, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), for Ortiz to be sentenced below the statutory mandatory minimums in light of his substantial assistance. Weighing Defendant's cooperation against the crimes to which he pled guilty and his criminal record, the Court sentenced Defendant, "in accordance with the motion that the [G]overnment made," to 5 years' (60 months') imprisonment on each of the three counts to run concurrently, less than one-fifth of the otherwise applicable statutory mandatory minimum sentence of 27 years (324 months). Sentencing Tr. at 12-13.

II. RECENT AMENDMENTS TO CRACK COCAINE SENTENCING GUIDELINES

Congress passed the Anti-Drug Abuse Act of 1986 ("1986 Act"), 100 Stat. 3207, to establish a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses using weight differences as the sole determinant to identify "major" and "serious" drug dealers. Kimbrough v. United States, 128 S.Ct. 558, 566-67 (2007). In addition, Congress in the 1986 Act chose to treat crack cocaine, which was relatively new in the drug market, differently than cocaine powder. Despite the similar chemical makeup and physiological and psychotropic effects, Congress distinguished crack cocaine from the powder form because it believed that crack was more dangerous. Kimbrough, 128 S.Ct. at 567.

Congress based its distinct treatment of crack on the following assumptions: crack was highly addictive; crack users and dealers were more likely to be violent than users and dealers of other drugs; crack was more harmful to users than powder; crack use was especially prevalent among teenagers; and crack's potency and low cost were making it increasingly popular.

Kimbrough, 128 S.Ct. at 566-67. Consequently, the 1986 Act adopted a 100-to-1 ratio that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine, which yielded sentences for crack cocaine that were three to six times longer than those for cocaine powder offenses involving equal amounts of drugs. Kimbrough, 128 S.Ct. at 566 (citing Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf) ("2002 Report").

During two decades of experience with the 100-to-1 ratio, the Commission determined that the "crack/powder sentencing disparity is generally unwarranted." Kimbrough, 128 S.Ct. at 568. Specifically, the Commission recognized that the 100-to-1 ratio "fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act" because it did not punish major drug traffickers more severely than low-level dealers and it fostered disrespect for and lack of confidence in the criminal justice system by promoting racial disparity. Id. The 100-to-1 ratio has tended to punish retail crack dealers more than wholesale drug distributors of powder cocaine from which their crack was produced. Kimbrough, 128 S.Ct. at 568 (citing Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 66-67, 174 (Feb. 1995)). Approximately 85% of defendants convicted of crack offenses in federal court have been black and therefore the severe sentences have been imposed on primarily black offenders. Kimbrough, 128 S.Ct. at 568 (citing 2002 Report 91, 103).

After realizing that the assumptions underlying the 100-to-1 ratio did not reflect reality, starting in 1995, the Sentencing Commission made several attempts to achieve a reduction in the crack/powder ratio, proposing reductions to the powder to crack ratio as low as 5-to-1, only to be rebuffed by Congress at each turn. Kimbrough, 128 S.Ct. at 568-59. Finally in 2007, the Commission adopted Amendment 706 to the Sentencing Guidelines to address the disparities in the sentences of defendants who possess or distribute various forms of cocaine. Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-72 (2007); see also United States v. Rivera, 97-cr-0026, 2008 WL 576764, at *1 (E.D. Pa. Mar. 3, 2008).

Though not eliminating the disparity entirely, the November 2007 amendment decreased the ratio between powder and crack cocaine sentences. Whereas one gram of crack yielded an equivalent sentence to 100 grams of cocaine powder under the old Guidelines, now a sentence based on 4.5 grams of crack is equivalent to one based on 150 grams of powder. Rivera, 2008 WL 576764, at *1. The Commission altered the calculation of base offense levels for offenses involving crack cocaine and other controlled substances to reduce the impact of a crack cocaine conviction. Id. Thus, defendants sentenced for a crack offense ...


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