Has the Third Circuit Ended Crack Litigation?

The decision in United States v. Doe, http://www.ca3.uscourts.gov/opinarch/083968p.pdf, holds that if the starting point for the sentence is not lowered by the retroactive crack amendment, a defendant is ineligible for relief under 18 U.S.C. section 3582(c)(2). This seems to put an end to litigation on behalf of career offenders who receive departure sentences, or those subject to mandatory minimum sentences who received 5K/3553(e) relief.

The decision is based on what the panel calls the "second element" of section 3582(c)(2), which provides that reductions in sentence should be "consistent with" policy statements of the Sentencing Commission, and the Commission's policy statement in USSG section 1B1.10 that defendants are not entitled to relief unless the amendment has the effect of "lowering the defendant's applicable guideline range." Because its ruling is based on the "second element," the decision does not address Doe's "based on" or rule of lenity arguments.

Judge Fuentes writes a concurring opinion that sounds almost like a dissent, commenting that it is unclear (though not grievously ambiguous, so no rule of lenity relief) that the Commission intended this result and that the Court's interpretation creates some serious inequities among crack defendants.

Doe will seek rehearing en banc. The petition is due on May 14th.