United States District Court, S.D. New York
For Edward Gardner, also known as Alex, Defendant: Curtis Jordan Farber, LEAD ATTORNEY, Curtis Farber, Esq., New York, NY; Joel Mark Stein, Joel M. Stein, Esq, New York, NY.
For Kenroy Gladden, also known as Kenroy Flowers, also known as Michael Richardson, Defendant: Devin McLaughlin, LEAD ATTORNEY, PRO HAC VICE, Langrock Sperry & Wool, LLP, Middlebury, VT; Murray Richman, LEAD ATTORNEY, Law Offices of Murray Richman, Bronx, NY.
For USA, Plaintiff: Avi Weitzman, LEAD ATTORNEY, United States Attorney Office, SDNY, New York, NY; David Andrew O'Neil, Jennifer Eileen Burns, Michael Douglas Maimin, Nola Breglio Heller, LEAD ATTORNEYS, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.
OPINION AND ORDER
JED S. RAKOFF, U.S.D.J.
Pending before the Court is the resentencing of defendants Edward Gardner and Kenroy Gladden following a vacatur and remand of their sentences by the Second Circuit in light of Dorsey v. United States, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). See Mandate, December 3, 2012, ECF No. 57. The initial question presented on remand is whether, in calculating the defendants' range under the U.S. Sentencing Guidelines (the " Guidelines" ), the Court should apply the Guidelines' provision by which, for sentencing purposes, the weight of the cocaine involved in any offense involving " crack" cocaine is multiplied by a factor of 18. Finding that this multiplier is unsupported by fact, law, or policy, the Court declines to apply it to the sentences in this case.
Although the defendants here each face substantial mandatory minimum sentences, the Court, on this remand, must, " as a starting point and initial benchmark," calculate anew the applicable Guidelines range for the offenses of conviction. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). On April 30, 2013, at an initial hearing following remand, the Court made a finding that the defendants' offenses of conviction involved at least 3.6 kilograms of cocaine base (commonly known as " crack cocaine" ), but raised questions about whether the amount should be subject to a multiplier. See Tr., 4/30/2013, at 11. While, with respect to all offenses involving illegal drugs, the quantity of the drugs is, by far, the single most important component in calculating the applicable Guidelines range, in the case of crack cocaine, but not powder cocaine, the actual quantity is multiplied by a factor of 18. See U.S.S.G. § 2D1.1(c). Since crack and powder cocaine are simply two forms of the same chemical substance having " the same physiological and psychotropic effects," Kimbrough v. United States, 552 U.S. 85, 94, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), this discrepancy is suspect on its face.
Accordingly, the Court, at the April 30 hearing, solicited supplemental briefing from the parties on the issue of what empirical basis, if any, justifies the Guidelines' disparate treatment of crack and powder cocaine. Having reviewed these supplemental submissions, and having had the benefit of further oral argument, the Court finds that there is insufficient support, empirical or otherwise, for this substantial disparity.
The parties agree that the 18:1 ratio of crack to powder cocaine makes a huge difference in the defendants' Guidelines range. If the ratio is here applied, the base offense level for the defendants' crimes is 36. See U.S.S.G. § 2D1.1(c)(2). Given the defendants' uncontested criminal history category of II, and assuming no other adjustments, the defendants' Guidelines range would be 210 to 262 months' imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table). By contrast, were the 3.6 kilograms of crack cocaine treated simply as powder cocaine, the total offense level would be 30, and the corresponding Guidelines range would be 108 to 135 months' imprisonment, or roughly half of
the imprisonment recommended under the 18:1 ratio.
A brief review of the relevant background makes clear how little, if any, this disparity has to do with any objective difference between crack and powder cocaine and how much it has to do with the dead hand of history. From 1986 until 2007, the Guidelines' ratio between crack and powder cocaine was 100:1. The origin of this extraordinary disparity had nothing directly to do with scientific or empirical inquiry, but rather derived from the Sentencing Commission's reliance on the Anti-Drug Abuse Act of 1986 (" 1986 Act" ), Pub. L. No. 99-570, 100 Stat. 3207 (1986), which imposed certain mandatory minimum sentences that could be read to reflect, in effect, a 100:1 ratio between crack and powder cocaine. See, e.g., 21 U.S.C. 841(b)(1)(A) (2008) (imposing a ten-year mandatory minimum sentence for distributing either 50 grams of crack cocaine or 5 kilograms of powder cocaine). Although the 1986 Act dealt only with mandatory minimum sentences, the Sentencing Commission " responded to the legislation by . . . extrapolating upward and downward to set . . . ranges for all drug quantities." United States Sentencing Comm'n, Report to Congress: Cocaine and Federal Sentencing Policy 3 (May 2007) (" 2007 Report" ). See also United States Sentencing Comm'n, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 53-54 (Oct. 2011). In so doing, the Commission, in the words of the Supreme Court, departed from its " characteristic institutional role" of developing sentencing recommendations based upon " empirical data and national experience." Kimbrough, 552 U.S. at 109.
As a consequence, the Supreme Court subsequently held in the Kimbrough case, supra, that it would be no abuse of discretion for a district court to conclude, " even in a mine-run case," that the 100:1 disparity might yield a sentence that contravenes the overall policies of federal sentencing mandated by Congress in 18 U.S.C. § 3553(a). Id. at 109. The Court further clarified in Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), that a district court's variance from this disparity could be " categorical" in nature, rather than tied to the specifics of the individual case, and that the district court retained " authority to vary from the crack cocaine Guidelines based on policy disagreement with them." Id. at 264. As the Court further stated: " [a] sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant's sentence necessarily permits adoption of a replacement ratio." Id. at 265.
In the instant case, the Government concedes that these holdings are equally applicable to the 18:1 ratio. See Mem. Regarding the Application of the Guidelines to Offenses Involving Crack Cocaine (" Gov. Mem." ), Dkt. No. 60, at 3. But, to continue the history, the Sentencing Commission, even before Kimbrough and Spears were handed down, recognized its earlier ...