3d Cir allows consideration of crack/powder disparity

In what is certainly the best circuit decision on the issue, as well as the one most faithful to Booker, the 3rd Cir ruled in US v. Johnny Gunter, No. 05-2952 (click here) that district courts may consider the 100:1 crack/powder quantity differential, on which the guidelines for cocaine are based, as a factor in deciding what sentence to impose. Along the way, the Court also clarified the correct sentencing procedure post-Booker, and made clear once again that the guideline range is truly "advisory" and not binding on the courts. This is a must-read decision for all involved in federal sentencing in the 3rd Cir.

In Gunter, the defendant was found guilty of possession with intent to distribute more than 50 grams of crack cocaine (72.5 grams to be exact) and faced a guideline range of 295-353 months. Had the 72.5 grams been cocaine powder instead, the range would have been 111-123 months, because the guidelines treat 1 gram of crack as the equivalent of 100 grams of powder for offense level purposes. Defense counsel argued for a sentence below the guideline range on the basis of this disparity, pointing out that the Sentencing Commission itself has issued several reports finding that this disparity is unwarranted and treats crack offenses too harshly. The district court rejected defense counsel's arguments on the ground that the 100:1 crack/powder ratio was a legislative determination, and that the court was therefore bound by the guidelines range based on that ratio.

The Circuit ruled that the district court erred in concluding it did not have the discretion to consider the crack/powder differential, and in treating the guideline range as mandatory. The Circuit began with a review of the Sentencing Commission's findings over the years that crack and powder are pharmacologically indistinguishable, that the 100:1 ratio results in punishing low-level crack dealers more harshly than whole-sale powder distributors, that it has a disproportionate effect on African-American defendants, and that it overstates the seriousness of crack offenses.

The Circuit then reviewed the correct sentencing procedure, noting that sentencing under the now advisory guidelines is controlled by Section 3553(a), which "begins with the broad mandate that sentencing courts "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in the statute. This reference to what has become known as the "parsimony provision" is significant since it has frequently not be mentioned at all in other opinions addressing sentencing under Booker. The Court also set out the "three-step sentencing process" that district courts should follow post-Booker:

1) Calculate the guideline range correctly;
2) Formally rule on any
departure motions and explain how those rulings affect the guideline range;
3) Exercise discretion under section 3553(a) by considering the relevant
factors listed there and imposing sentence "regardless whether it varies from
the sentence calculated under the Guidelines."

The Court thus continues to distinguish between "departures" under the guidelines provisions (step 2), and "variances" under the section 3553(a) factors (step 3).

Next, the Court neatly harmonized the decisions of other circuits to have addressed the crack/powder issue, and noted with approval the more than "two dozen district courts (hardly a 'handful') that have used their Booker discretion to refuse to apply the 100:1 crack/powder cocaine discrepancy." While making clear that district courts cannot substitute their own ratio for the 100:1 ratio, the Court explained that "no circuit court has held that a sentencing court errs in simply considering the particular form of a drug involved in the offense as one of the many individual factors in imposing a sentence."

The Circuit then ruled that "post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines -- but no demanded by 21 U.S.C. 841(b) -- as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant section 3553(a) factors)." That was the error that occurred here, and thus the Court remanded for resentencing.

The penultimate sentence of this decision merits some discussion. The Court states, "Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten." Slip op. at 28-29. Read in context, it appears that this statement is a reference to the calculation of the guideline range in step one of the sentencing process, in which the guideline range must be correctly calculated on the basis of the 100:1 ratio. The Court is referring to the ruling in US v. Pho, 433 F.3d 53 (1st Cir. 2006), in which the First Cir. held that "the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 ratio embedded in the sentencing guidelines." Id. at 64. Thus, in calculating the guideline range in step one, the district court cannot "construct[] a new sentencing range" based on a different ratio.

But at step three of the process, the district court exercises its discretion under section 3553(a) in setting the sentence "regardless whether it varies" from the guideline range. Thus at that stage the district court is free to consider what the sentence would be under a ratio (such as 20:1) that more accurately reflects the seriousness of crack in relation to powder. Indeed, consideration of the 20:1 ratio would be a good way for the district court to make its reasoning transparent, and would in effect be the sort of "analogic reasoning" that the Third Cir. has strongly encouraged district courts to use in sentencing outside of the guideline range. See US v. King, 2006 WL 1889976, *5 (3d Cir. 7/11/06) (courts sentencing outside range should look for a "suitable analogy" in other guidelines policy statements). As Gunter held, at step three, the district court is free to "consider the crack/powder cocaine differential," and this must necessarily encompass the discretion to consider what the sentence would be under a 20:1 differential, since the 100:1 differential is "simply advisory at step three." Gunter slip op. at 28.

Thus, as long as the district court does not categorically reject the 100:1 ratio in step one, it is free in step three to consider what the result of a different ratio would be as it exercises its discretion and treats the guideline range "as simply advisory."