JANET T. NEFF, District Judge.
This case, where defendant pleaded guilty and was sentenced after the effective date of the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, presents unique facts on which to determine whether to apply the penalty provisions of 21 U.S.C. § 841, as amended by § 2 of the Fair Sentencing Act. This Court, persuaded that the Fair Sentencing Act permits no further federal crack cocaine sentencings that are not "fair," rendered its oral sentencing decision on November 22, 2010, imposing on defendant a total term of imprisonment of 18 months. This memorandum is issued in conjunction with the written Judgment of Sentence to more fully explain the reasons for the sentence imposed.
On June 24, 2010, an Indictment was filed charging defendant with conspiracy to possess with intent to distribute and distribute fifty grams or more of cocaine base (crack cocaine), 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1); 21 U.S.C. § 841(b)(1)(A)(iii) (Count I); and possession with intent to distribute five or more grams of cocaine base (crack cocaine), 21 U.S.C. § 841(a)(1); 21 U.S.C. § 841(b)(1)(B)(iii) (Count III) (Dkt. 17). On or about June 16, 2010, the date of the offense conduct giving rise to Count III, 21 U.S.C. § 841(b)(1)(B)(iii) required a prison term of no "less than five years," given the quantity of crack cocaine involved.
On August 3, 2010, however, the President signed into law the Fair Sentencing Act, which is described in the preamble as an Act "[t]o restore fairness to Federal cocaine sentencing." The Fair Sentencing Act raised the amount of crack cocaine necessary to trigger the five-year mandatory minimum from 5 grams to 28 grams.
On August 16, 2010, defendant pleaded guilty to Count III in the Indictment. As part of his plea agreement, defendant agreed to cooperate with the government (Plea Agmt., Dkt. 32 at ¶ 6).
The probation officer who prepared the Pre-Sentence Report (PSR) in defendant's case used the November 1, 2010 U.S. SENTENCING GUIDELINES (U.S.S.G.) MANUAL (PSR ¶ 58). The probation officer calculated defendant's total offense level as 19 and his criminal history category as 2, resulting in a Guidelines imprisonment range of 33 to 41 months, unless the five-year mandatory minimum applied (PSR ¶¶ 69, 73, 103).
The government filed a Motion for Downward Departure under U.S.S.G. § 5K1.1 (Dkt. 54). The government indicated that defendant provided a proffer detailing his knowledge of the illegal activity and the role of his co-defendant, Lonnie Williams, that defendant provided additional information about drug quantity, and that the case agent regarded defendant's information as very truthful (id. at 2-3). The government stated its belief that defendant's cooperation was a significant factor in co-defendant Williams' decision to plead guilty in this case (id. at 3).
Defendant filed a Motion for Departure from Guideline Range based on U.S.S.G. § 5K1.1 (Substantial Assistance to Authorities) as well as U.S.S.G. § 4A1.3 (Overstated Criminal History Category) (Dkt. 52). On the latter, defendant pointed out that his entire criminal history category is comprised of one offense of malicious destruction of property, an offense that was "designed to be a senior prank at his high school" and one that was ultimately dismissed upon defendant's successful completion of probation under the Holmes Youthful Trainee Act, MICH. COMP. LAWS § 762.11 et seq. (id. at 1-2).
Defendant appeared before the Court for sentencing on November 22, 2010. The parties had no objections to the facts or Guidelines scoring in the Pre-Sentence Report (PSR). The Court also found that the PSR's Guidelines calculations were accurate. For the reasons stated on the record, the Court granted the government's § 5K1.1 motion and granted defendant's § 4A1.3 motion for a downward departure. Consequently, defendant's adjusted offense level is 17 and his criminal history category is 1, resulting in a new Guidelines imprisonment range of 24 to 30 months. After considering the factors under 18 U.S.C. § 3553(a), the Court announced a sentence below the advisory Guidelines range. Specifically, the Court sentenced defendant on Count III to a total term of imprisonment of 18 months to be followed by a four-year term of supervised release. The government dismissed Count I of the Indictment against defendant.
In determining the sentence to be imposed, a district court must consider the advisory Guidelines range and all relevant factors identified in 18 U.S.C. § 3553(a). United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006). The § 3553(a) factors include:
18 U.S.C. § 3553(a).
The Sentencing Guidelines are the "starting point and the initial benchmark" for federal sentencing. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. McBride, 434 F.3d 470, 475-76 (6th Cir. 2006). In practice, this means that the court must begin at the proper base offense level, apply any applicable enhancements or reductions to arrive at the adjusted offense level, and use the resulting offense level with the appropriate criminal history category to arrive at a sentencing range. United States v. Thompson, 515 F.3d 556, 561 (6th Cir.2008). "Once the district court has calculated the appropriate Guidelines range, it then considers that range in light of the other relevant § 3553(a) factors in fashioning the sentence." Id. After reviewing the § 3553(a) factors, the district court must ultimately "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in § 3553(a)(2). 18 U.S.C. § 3553(a).
The district court must make an individualized assessment based on the facts presented and adequately explain its choice. Gall, 552 U.S. at 50, 128 S.Ct. 586. The court must address the relevant factors in reaching its conclusion. United States v. Kirchhof, 505 F.3d 409, 413 (6th Cir.2007). It need not explicitly consider each of the § 3553(a) factors or engage in a rote listing or some other ritualistic incantation of the factors. Id.
As the Sixth Circuit Court of Appeals has observed, the Fair Sentencing
First, in United States v. Douglas, 746 F.Supp.2d 220, 230-31, 2010 WL 4260221, *6 (D.Me.2010), United States District Court Judge D. Brock Hornby engaged in an exhaustive analysis of the issue on facts similar to those at bar and ultimately concluded that "a defendant not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act's altered mandatory minimums apply to such a defendant as well."
As a threshold matter, the district court observed that the Act does not indicate categories of offenders to whom it applies—those who have not yet offended, offenders not yet convicted, offenders convicted but not yet sentenced, or offenders already sentenced. Douglas, supra at 221-22, at *1. The court recounted how the factual premises for the severe powder/crack cocaine differential came into question and increasing attention was directed to significant racial disparities that it produced in federal drug sentencing. Id. at 222-23, at *2. The court pointed out that the new law contains significant ameliorating provisions, modest penalty increases, and some urgency. On the latter, the court noted that the law has already caused the Sentencing Commission to issue amended, emergency guidelines, including amendments that reduce the base offense levels for various quantities of crack cocaine, all effective November 1, 2010. Id. The quantity amendments are based explicitly upon the Fair Sentencing Act's new mandatory minimum sentences and will apply to all offenders sentenced after November 1, 2010, even if those offenders committed their offenses before August 3, 2010. Id. The district court pointed out that the ex post facto clause does not prohibit retroactive change that lightens penalties, as does the changed crack/powder ratio. Id. at 224-26, at *3.
The district court also gave attention to the import of the "Saving Clause," 1 U.S.C. § 109 ("The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."). Douglas, supra at 225, at *3. The court found that the Supreme Court's interpretation of the Saving Clause foreclosed the argument that the Fair Sentencing Act does not "release or extinguish" a penalty, the concern of the Saving Clause, as well as the argument that the Saving Clause does not apply to remedial or procedural changes, the type of changes made by the Fair Sentencing Act. Id. at 226-28, at *4. Citing Congress' authority to make its new reform apply only to criminal conduct occurring after the statute's enactment, the court also rejected the argument that applying the Saving Clause to preserve the old mandatory minimums would raise Fifth or Eighth Amendment concerns. Id.
However, the district court "found force" in the argument that provisions of
Douglas, supra at 226-30, at *4-5 (footnotes omitted).
The district court ultimately concluded, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that "Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment." Douglas, supra at 231, at *6. As the Court noted at the sentencing in this case, the Court is persuaded by the positions Judge Hornby takes in this carefully reasoned opinion and his view that a contrary operation of the Fair Sentencing Act would belie its title, at least for the next few years. Id. at 231 n. 57, at *6 n. 57.
The sense of urgency implicit in the Fair Sentencing Act was reiterated in the second source that the Court finds persuasive: a November 17, 2010 letter to Attorney General Eric Holder from the Act's lead sponsors, United States Senators Richard J. Durbin and Patrick J. Leahy. The Act's lead sponsors wrote the Attorney General "to urge [him] to apply its modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment." The sponsors indicated that their goal in passing the Fair Sentencing Act "was to restore fairness to Federal cocaine sentencing as soon as possible," that "every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust." The sponsors indicated their belief that the Act, in significantly reducing the disparity between crack and powder cocaine, "will decrease racial disparities and help restore confidence in the criminal justice system, especially in minority communities."
The Act's lead sponsors opined that this sense of urgency is why they required the U.S. Sentencing Commission to promulgate an emergency amendment to the Sentencing Guidelines, which took effect on November 1, 2010, and will apply to all defendants who have not yet been sentenced. They also opined that this sense of urgency is why
The Act's lead sponsors referred Attorney General Holder to District Judge
Third, this Court benefitted in its sentencing decision from the argument of Law Professor Douglas A. Berman, set forth in his "Sentencing Law and Policy" blog on November 16, 2010. There, Professor Berman argues that the decision of the United States Supreme Court in Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010) (adopting the government's approach to the application of the special firearm sentencing provisions set forth in 18 U.S.C. § 924(c)), provides new and added support for applying the Fair Sentencing Act's provisions concerning crack cocaine sentences to all pending cases (http://sentencing.typepad.com, last visited 11/17/2010). Professor Berman makes the following points in support of his argument:
After giving careful consideration to the exhaustive treatment of the issue in these three resources, the Court agrees that the penalty provisions of 21 U.S.C. § 841, as amended by § 2 of the Fair Sentencing Act, are properly applied in sentencing this defendant, who pleaded guilty and is being sentenced after the Act's effective date.
Moreover, for the reasons stated on the record, even if the pre-amended penalty provisions of 21 U.S.C. § 841 apply to this defendant, the Court would impose a total term of imprisonment of 18 months as a sentence sufficient, but not greater than necessary, to serve the purposes of sentencing as delineated in § 3553(a)(2). Other conditions of defendant's sentence appear in the accompanying Judgment of Sentence.
