United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2006 Decided February 13, 2007
No. 05-3179
UNITED STATES OF AMERICA,
APPELLEE
v.
LORENZO PICKETT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00181-01)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese, III and Rachel Carlson Lieber, Assistant U.S.
Attorneys.
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
2
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: Under one of the United
States Sentencing Guidelines it takes 100 times more powder
cocaine to get a drug trafficker the same sentence he would
receive for dealing crack cocaine. The issue in this appeal is
whether a judge considering the factors set forth in 18 U.S.C.
§ 3553(a) may ignore how the 100-to-1 ratio affects those
factors in crack cocaine cases.
I.
In 2002, Lorenzo Pickett pled guilty to distributing more
than five grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii). Pickett agreed that for sentencing
purposes he was accountable for more than fifty grams but less
than 150 grams of crack. Using the Guidelines, the district court
calculated Pickett’s sentencing range as 140 to 175 months, and
sentenced him to 158 months. On Pickett’s appeal, the
government conceded that his criminal history score should have
been reduced by three points. Both parties agreed that the
correct Guidelines range after this adjustment was 121 to 151
months.
We remanded the case. Before resentencing, the
Supreme Court decided United States v. Booker. The parties
filed new sentencing memoranda. Pickett argued that the district
court should impose a sentence below the Guidelines range,
taking into account the unwarranted disparity between Guideline
sentences based on the weight of crack as opposed to powder
cocaine.1 The district court declined to rule on the issue because
1
Pickett also contended, as he does on appeal, that Congress
engaged in unconstitutional discrimination in passing the
3
it “has been decided by at least one, and maybe more than one
of my colleagues on the bench. . . . So therefore, that issue is
going up to the Court of Appeals. And I am not prepared to
decide it at this time.” The court sentenced Pickett to 121
months, the bottom of the Guidelines range.
II.
A.
Before the Sentencing Reform Act of 1984, Pub. L. No.
98-473, 98 Stat. 1987, criminal penalties typically were
indeterminate – for instance, five years to life, or not more than
twenty years. Within the statutory range, federal judges had
discretion to impose whatever term of imprisonment they saw
fit. Their judgment could be based on the personal
characteristics of the defendant, the nature of the crime, the need
to deter others, their sentencing philosophy, and so forth. No
rule of law required a sentencing judge to give reasons for a
sentence, and appellate review was not available. The time a
defendant actually served depended only partly on the sentence.
With the United States Parole Commission determining release
“Disapproval Act,” Pub. L. No. 104-38, § 1, 109 Stat. 334 (Oct. 30,
1995), which rejected the Sentencing Commission’s proposed
amendment to eliminate the crack/powder cocaine disparity. His
arguments are similar to those the defendant made in United States v.
Johnson, 40 F.3d 436 (D.C. Cir. 1994), and we reject them again.
Now, as then, “scattered pieces of legislative history are quite
inadequate to serve to attribute a discriminatory purpose to the
Congress.” Id. at 440. Just as Congress had race-neutral reasons for
adopting a 100-to-1 ratio in the Anti-Drug Abuse Act of 1986, Pub. L.
No. 99-570, 100 Stat. 3207, see Johnson, 40 F.3d at 441, it had race-
neutral reasons for declining to adopt the 1-to-1 ratio the Sentencing
Commission proposed.
4
dates, the typical defendant served only fifty-eight percent of the
sentence imposed. U.S. SENTENCING COMM’N, FIFTEEN YEARS
OF GUIDELINES SENTENCING xviii (Nov. 2004) (“2004 Report”).
“The first and foremost goal of the sentencing reform
effort was to alleviate the perceived problem of federal criminal
sentencing disparity. . . . Evidence that similar offenders
convicted of similar offenses received, at times, grossly
dissimilar criminal punishment struck a critical nerve among
key legislators.” Kenneth R. Feinberg, Federal Criminal
Sentencing Reform: Congress and the United States Sentencing
Commission, 28 WAKE FOREST L. REV. 291, 295 (1993). To
eliminate these disparities and to accomplish the other
objectives of sentencing, the Sentencing Reform Act of 1984
charged the Sentencing Commission with the task of
promulgating guidelines federal judges would be required to
apply.
In formulating its first set of guidelines, “the
Commission decided to base guideline ranges on the existing
average time served,” as revealed in a study the Commission
conducted. 2004 Report at 47. The Commission had begun
work on a guideline for drug trafficking offenses when Congress
passed the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207, of which 21 U.S.C. § 841 was a part. In § 841,
Congress specified mandatory minimum sentences for a wide
range of drug trafficking offenses, each triggered by the weight
of the “mixture or substance containing a detectable amount” of
the particular drug. 21 U.S.C. § 841(b).
The 1986 Act created a problem for the Commission. As
is well understood, mandatory minimum sentencing statutes are
inconsistent with the objectives of the Guidelines to provide “a
substantial degree of individualization in determining the
appropriate sentencing range” and to impose “graduated,
5
proportional increases in sentence severity for additional
misconduct or prior convictions.” U.S. SENTENCING COMM’N,
MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL
JUSTICE SYSTEM 25 (Aug. 1991). “The application of lengthy
penalties to all persons based solely on whether they fit the
statute-defined criteria (drug type and amount) results in a
problem that is common to all mandatory minimum statutes –
unwarranted uniformity.” U.S. SENTENCING COMM’N, COCAINE
AND FEDERAL SENTENCING POLICY 166-68 (Feb. 1995) (“1995
Report”); see also Stephen J. Schulhofer, Assessing the Federal
Sentencing Process: The Problem is Uniformity, Not Disparity,
29 AM. CRIM. L. REV. 833, 847-48 (1992). Whether in passing
the 1986 Act Congress considered these problems, and others,
is unknown and unknowable. In the Commission’s view, the
purpose of the Act was “to establish a two-tiered penalty
structure for most drugs,” with a five-year mandatory minimum
for managers of retail trade and a ten-year minimum for heads
of organizations and wholesalers. 2004 Report at 48; 1995
Report at 118.
The drug trafficking guideline the Commission
ultimately promulgated did not follow this two-tiered approach.
Instead, it extended the § 841 drug “quantity-based approach
across 17 different levels [of quantity] falling below, between,
and above the two amounts specified” in the statute as triggers
for mandatory minimum sentences. 2004 Report at 49. For
example, defendants receive a base offense level of thirty-two
for dealing at least 1,000 but less than 3,000 grams of heroin, or
at least 500 grams but less than 1,500 grams of
methamphetamine, or at least 5,000 but less than 15,000 grams
of powder cocaine, or – as in Pickett’s case – at least fifty but
less than 150 grams of crack cocaine. U.S.S.G. § 2D1.1(c)(4)
(Drug Quantity Table). Put another way, for purposes of
sentencing, 1,000 grams of heroin equals fifty grams of crack
cocaine equals 5,000 grams of powder cocaine.
6
At the time it issued this Guideline the Commission did
not explain why it decided to extend the 1986 Act’s “quantity-
based approach in this way.” 2004 Report at 49. But it soon
became clear that with respect to cocaine, the Guideline’s use of
the 100-to-1 ratio between powder and crack cocaine raised
significant problems. See id. at 50. As a result of the Guideline,
“the sentencing guideline range (based solely on drug quantity)
is three to over six times longer for crack cocaine offenders than
powder cocaine offenders with equivalent drug quantities,
depending on the exact quantity of the drug involved.” U.S.
SENTENCING COMM’N, COCAINE AND FEDERAL SENTENCING
POLICY 11 (May 2002) (“2002 Report”). With respect to all
drug trafficking offenses, the emphasis on drug quantity
distorted the importance of that element as compared with other
offense characteristics. 2004 Report at 50. With respect to
cocaine, the Commission concluded that although powder
cocaine, which is usually snorted, was less addictive than crack
cocaine, which is smoked, see United States v. Brisbane, 367
F.3d 910, 911 (D.C. Cir. 2004), this difference could not account
for the 100-to-1 ratio. All forms of cocaine are addictive. The
“current penalty structure – which yields a five-year mandatory
minimum sentence for ten to fifty doses of crack cocaine
compared to 2,500 to 5,000 doses of powder cocaine – greatly
overstates the relative harmfulness of crack cocaine.”2 2002
Report at 93.
For these and other reasons we will mention later, the
Commission issued a report in 1995 criticizing the ratio. Later
that year the Commission proposed to Congress an amendment
2
In 1995 the average retail price for five grams of crack,
which yielded ten to fifty doses, was in the range of $225 to $750; the
average retail price for 500 grams of powder cocaine, which yielded
2,500 to 5,000 doses, was in the range of $32,500-$50,000. 1995
Report at 175.
7
to the Guidelines eliminating the differential treatment of crack
and powder cocaine. See 60 Fed. Reg. 25,074 (May 10, 1995).
Pursuant to 28 U.S.C. § 994(p), Congress rejected the
Commission’s proposal and directed it to study the matter
further. See Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995).
The Commission did so and sent another report to Congress in
1997, this time recommending an amendment to the mandatory
minimum statute, 21 U.S.C. § 841: “the current 500-gram
trigger for the five-year mandatory minimum sentence [for
powder cocaine] should be reduced to a level between 125 and
375 grams, and for crack cocaine, the five-gram trigger should
be increased to between 25 and 75 grams.” U.S. SENTENCING
COMM’N, COCAINE AND FEDERAL SENTENCING POLICY 9 (Apr.
1997). Congress did not amend § 841 in response. In 2002 the
Commission issued an even more extensive report setting forth
in detail the defects in the current system for sentencing cocaine
trafficking offenders and recommending an amendment to § 841
incorporating a 20-to-1 ratio between powder and crack cocaine.
2002 Report at A1-A10. Again Congress did not act on the
recommendation. The Commission’s 2004 report on fifteen
years of sentencing under the Guidelines also advocated altering
the 100-to-1 ratio, see 2004 Report at 132, but Congress took no
action.
B.
If matters stood as they were in 2004, we would have no
choice but to reject Pickett’s claim. We held in United States v.
Anderson, 82 F.3d 436 (D.C. Cir. 1996) – over Judge Wald’s
dissent – that the problems caused by the 100-to-1 ratio did not
justify a sentencing judge in departing from the Guidelines. The
Guidelines were then mandatory and the Sentencing
Commission’s criticism of its own product in its 1995 report to
Congress did not render the Guidelines any less so.
8
In light of Booker, Anderson is no longer controlling.
On the merits, a 5-4 majority in Booker held that the Guidelines
violated the Sixth Amendment because they required judges to
make factual findings that had the effect of lengthening
sentences beyond what the jury-found facts would support. 543
U.S. at 244. As a remedy for this constitutional violation, a
different 5-4 majority gave sentencing judges even more
discretion. Before Booker, judges made factual findings and
were required to adhere to the Guidelines in determining
sentences; after Booker, judges continue to make findings but
must treat the Guidelines as “effectively advisory.” Id. at 245;
see Cunningham v. California, No. 05-6551, 2007 WL 135687
(U.S. Jan. 22, 2007); Michael W. McConnell, The Booker Mess,
83 DENVER U. L. REV. 665, 677 (2006).
If we looked only to the Booker merits opinion, Pickett
would have no case. The merits majority held that defendants
in his situation have not suffered a Sixth Amendment violation.
In his plea agreement, Pickett admitted possessing with intent to
distribute more than fifty grams but less than 150 grams of crack
cocaine. Under the Guidelines, his base offense level was
therefore thirty-two. See U.S.S.G. § 2D1.1(c)(4). From this and
in light of his criminal history and acceptance of responsibility,
the district court calculated his Guideline range and sentenced
him at the bottom end of the range. A defendant like Pickett,
who admits each fact needed to support his sentence, has not
been deprived of his right to a jury trial. See Booker, 543 U.S.
at 244. As the Court put it in Blakely v. Washington, 542 U.S.
296, 310 (2004), if “a defendant pleads guilty, the State is free
to seek judicial sentence enhancements so long as the defendant
. . . stipulates to the relevant facts,” which is what Pickett did.
Even though Pickett suffered no loss of a constitutional
right, Booker gave him a remedy. The Court’s remedial opinion
required the district court to treat the Guidelines as advisory
9
only and as simply one factor to be considered in sentencing.
Our role under Booker is to determine whether the sentence the
court ordered was “unreasonable.” 543 U.S. at 261. We have
held that a sentence resting on a legal error is unreasonable, if
the error was not harmless.3 See United States v. Price, 409 F.3d
436, 442 (D.C. Cir. 2005). The question in this appeal is
therefore whether the district court committed a legal error when
it declined to consider the 100-to-1 ratio perpetuated in § 2D1.1
of the Guidelines and the problems it raises in sentencing crack
cocaine dealers like Pickett.
Under Booker, a sentencing court in any one case will be
considering many of the same factors the Sentencing
Commission took into account in formulating the Guidelines for
all cases. For instance, when the Commission promulgated the
Guidelines it had to “meet” the broad sentencing purposes set
forth in 18 U.S.C. § 3553(a)(2). See 28 U.S.C. §§ 991(b)(1)(A),
994(g). Under Booker, district courts must also “take account
of” the same purposes, 543 U.S. at 259, which the Court has
described as “broad” and “open-ended,” Koon v. United States,
518 U.S. 81, 108 (1996).4 One, but only one, of the factors
3
At the end of the Booker remedial opinion, the Court stated
that “in cases not involving a Sixth Amendment violation, whether
resentencing is warranted or whether it will instead be sufficient to
review a sentence for reasonableness may depend upon application of
the harmless-error doctrine.” 543 U.S. at 268.
4
With the possible exception of § 3553(a)(2)(C) & (D), the
broadly stated purposes of sentencing set forth in § 3553(a)(2) are not
confined to any particular defendant’s situation. The Commission in
fact took those § 3553(a)(2) purposes into account in formulating the
Guidelines. See U.S.S.G. ch. 4, pt. A, intro. cmt.; U.S. SENTENCING
COMM’N, PRINCIPLES GOVERNING THE REDRAFTING OF THE
PRELIMINARY GUIDELINES (Dec. 1986) (“The Guidelines seek to
insure that all sentences imposed will fulfill the purposes of
10
sentencing courts must also consider is the sentencing range
under the Guidelines, 18 U.S.C. § 3553(a)(4)(A). After Booker,
543 U.S. at 254, a court is “no longer . . . tied to the sentencing
range indicated in the Guidelines,” Cunningham, 2007 WL
135687, at *10. The relevant factors in § 3553(a) are:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for–
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in the
guidelines–
(i) issued by the Sentencing Commission pursuant
to section 994(a)(1) of title 28, United States
Code, subject to any amendments made to such
sentencing mandated by Congress.”), reprinted in Stephen Breyer, The
Federal Sentencing Guidelines and the Key Compromises Upon
Which They Rest, 17 HOFSTRA L. REV. 1, 47 (1988). The Commission
took the § 3553(a)(2) factors into account because the Sentencing
Reform Act required it to do so. See 28 U.S.C. §§ 991(b)(1)(A),
994(g). But see United States v. Castillo, 460 F.3d 337, 355-56 (2d
Cir. 2006).
11
guidelines by act of Congress (regardless of
whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28); and
(ii) that, except as provided in section 3742(g), are
in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements
issued by the Sentencing Commission pursuant to
section 994(a)(3) of title 28, United States Code, taking
into account any amendments made to such guidelines
or policy statements by act of Congress (regardless of
whether such amendments have yet to be incorporated
by the Sentencing Commission into amendments
issued under section 994(p) of title 28);
(5) any pertinent policy statement–
(A) issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28, United States Code,
subject to any amendments made to such policy
statement by act of Congress (regardless of whether
such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under
section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
While Booker and § 3553(a) instruct sentencing courts
to consider all these “multiple and vague” factors, United States
v. Johnson, 471 F.3d 764, 764 (7th Cir. 2006), neither the
12
Supreme Court nor the statute assigns any weight or ranking to
the factors. So how is a court to determine how much influence
the factor we are concerned with – the advisory-only Guideline
range – should have in sentencing a particular defendant? One
might answer that the Guideline range should be considered
presumptively reasonable. But that would be to confuse the
standard this court and several others have adopted for appellate
review5 with the standard to be applied by the sentencing court.
A sentencing judge cannot simply presume that a Guidelines
sentence is the correct sentence. To do so would be to take a
large step in the direction of returning to the pre-Booker regime.
See United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir.
2006); United States v. Brown, 450 F.3d 76, 81-82 (1st Cir.
2006); United States v. Cunningham, 429 F.3d 673, 676 (7th Cir.
2005). Another approach, the correct one in our view, is to
evaluate how well the applicable Guideline effectuates the
purposes of sentencing enumerated in § 3553(a).
When it comes to the application of Guideline § 2D1.1
in crack cocaine cases, the Commission is one of its severest
critics. For more than a dozen years, it has strongly
recommended against retaining the 100-to-1 ratio. In its 2002
Report the Commission put the matter bluntly: “the Commission
firmly and unanimously believes that the current federal cocaine
5
See United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir.
2006); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006);
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); United
States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d
716, 717 (8th Cir. 2005); see also United States v. Rita, 177 F. App’x
357 (4th Cir. 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006)
(No. 06-5754); United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.
2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-
5618).
13
sentencing policy is unjustified and fails to meet the sentencing
objectives” in § 3553(a). 2002 Report at 91. The reasons are
several. For one thing, “[c]rack’s unique distribution pattern, in
combination with the 100-to-1 quantity ratio, can lead to
anomalous results in which retail crack dealers get longer
sentences than the wholesale drug distributors who supply them
the powder cocaine from which their crack is produced.” 1995
Report at 174. Although crack is more addictive than powder
cocaine, the 100-to-1 ratio “greatly overstates the relative
harmfulness of crack cocaine.” 2002 Report at 93. Also, the
“fact that a significant proportion of federal crack cocaine
offenders are responsible for relatively small drug quantities is
troublesome because they receive especially disparate penalties
in comparison to similar powder cocaine offenders.” Id. at 98.
The disparities are not only between crack and powder
cocaine dealers. In the Commission’s opinion § 2D1.1 of the
Guidelines is also a failure in distinguishing among crack
offenders. The Guideline treats “all crack cocaine offenders as
if they committed [harmful conduct such as violence], even
though most crack cocaine offenders in fact had not.” Id. at vii.
In addition to serving “no clear purpose,” § 2D1.1’s use of the
100-to-1 ratio and its quantity-based approach threatens “public
confidence in the federal courts” because it has had a
disproportionate impact on African-American offenders, who in
2002 made up eighty-one percent of those sentenced for
trafficking crack. 2004 Report at 131, 135. Although the
Guidelines were meant to promote uniformity in sentencing, not
to increase the length of sentences, § 2D1.1 also “had the effect
of increasing prison terms far above what had been typical in
past practice . . ..” Id. at 49.
In terms of the sentencing factors of § 3553(a), the
Commission thus believes that its Guideline for crack
distributors generates sentences that are “greater than necessary,”
14
exaggerates “the seriousness of the offense” of crack trafficking,
does not “promote respect for the law,” and does not “provide
just punishment for the offense.” 18 U.S.C. § 3553(a), (a)(2)(A).
The Commission’s self-assessment does not rest on the
particulars of any one offender. The sentencing factors just
mentioned, as well as § 3553(a)(2)(B), which deals with
deterrence in general, and § 3553(a)(6), which deals with
“unwarranted sentence disparities,” are not entirely confined to
the individual characteristics of the particular defendant. See
United States v. Simpson, 430 F. 3d 1177, 1186 (D.C. Cir. 2005).
It therefore seems to us beyond doubt that the district court erred
in refusing to evaluate whether sentencing Pickett in accordance
with Guideline § 2D1.1, and its 100-to-1 ratio, would effectuate
the purposes of sentencing set forth in § 3553(a).
The government has a counter-argument. It is this:
§ 2D1.1 of the Guidelines is required by 18 U.S.C. § 841(b), the
provision setting the mandatory minimum sentences for crack
and powder cocaine (and many other illicit drugs). Actually, we
put the argument too strongly. The government’s position is
more subtle than a direct assertion that Congress required the
Commission to formulate the Guideline as it did. The
government tells us first that allowing district courts to examine
or consider or take into account the untoward results of the 100-
to-1 ratio in the Guideline would frustrate “the will of Congress.”
Br. for Appellee 35. Second, whatever the Commission may
believe, Congress has not approved the Commission’s views. Id.
at 36-37. Third, the Guideline “reflect[s] a congressional policy
choice that trafficking in crack cocaine should be punished more
severely than trafficking in powder cocaine.” Id. at 37. And
fourth, judges have no business making “policy choice[s],”
which are for the legislature. Id. at 39.
We will take up each of these points in the same order.
As to frustrating the will of Congress, the Sentencing
15
Commission does not believe that and neither do we. In the case
of a crack dealer who pleads guilty to distributing more than fifty
grams of crack, Congress’s will is that his sentence should be
between ten years’ and life imprisonment. 21 U.S.C.
§ 841(b)(1)(A)(iii). Congress has set statutory minimums and
maximums. As to where within that range a particular
defendant’s sentence should fall, § 841(b) is silent. Over the
years, the Commission itself has recognized that it was unclear
what Congress intended with respect to sentencing within the
ranges set in § 841(b). See, e.g., 2004 Report at 49; 2002 Report
at 90. It may be logical to suppose that, given the structure of
§ 841, the greater the weight of the mixture containing the drug,
the greater the sentence should be. But at least with respect to
cocaine offenses, that approach entails the adverse consequences
mentioned above. Other approaches were possible, such as
having the sentence depend on whether the dealer was a retailer
or wholesaler.
The government is right that Congress has not approved
the Commission’s reports on the problems caused by using the
100-to-1 ratio in the Guideline. But we do not understand why
this matters. As far as the intent of Congress is concerned, it is
the intent of the 1986 Congress, which enacted the mandatory
minimums for crack and powder cocaine, that controls. The
intent of later Congresses that failed to act on Commission
recommendations is of no moment.6 But it remains of great
6
One cannot treat the Guideline as a manifestation of
congressional intent merely because the 1987 Congress did not object
to it pursuant to 28 U.S.C. § 994(p). Cf. INS v. Chadha, 462 U.S. 919,
975 n.11 (1983); North Haven Bd. of Educ., 456 U.S. 512, 533-34
(1982). Congress did take such action when it rejected the
Commission’s proposed Guideline amendment in 1995 to reflect a 1-
to-1 ratio between crack and powder cocaine. See § 1, 109 Stat. at
334. But in doing so Congress directed the Commission to “propose
16
importance that, in its recommendations, the Commission
candidly and forthrightly exposed the weaknesses and failings of
its Guideline with respect to crack cocaine sentencing.
True enough, the mandatory minimums reflect a
congressional policy choice that crack cocaine offenses should
be punished more severely than powder cocaine offenses
involving the same weight of drugs. But this entirely evades the
question. How much more severely? That point, made in each
of the Commission’s reports we have cited, is the critical
consideration about which Congress has had nothing to say,
except what the minimum and maximum punishment will be.
Judges have no business making “policy” choices, so the
government tells us. What is the “policy” choice the government
has in mind? It cites cases in which courts of appeals have
rejected attempts by district judges to adopt and apply a ratio
different from the current 100-to-1. See, e.g., United States v.
Spears, 469 F.3d 1166, 1178 (8th Cir. 2006) (en banc); United
States v. Pope, 461 F.3d 1331, 1335-37 (11th Cir. 2006); United
States v. Castillo, 460 F.3d 337, 357-60 (2d Cir. 2006); United
States v. Jointer, 457 F.3d 682, 686-87 (7th Cir. 2006); United
States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006); United
States v. Pho, 433 F.3d 53, 62-63 (1st Cir. 2006). But we do not
have such a case before us. Instead we have a case in which a
district judge refused to consider the problems that arise from
applying the Guideline in crack cases. In that respect our case is
very close to United States v. Gunter, which held that the
Guideline with respect to crack cocaine is not mandatory and that
a sentencing court “errs when it believes that it has no discretion
to consider the crack/powder differential incorporated in the
revision of the drug quantity ratio of crack cocaine to powder
cocaine.” Id. § 2(a)(2), 109 Stat. at 334.
17
Guidelines – but not demanded by 21 U.S.C. § 841(b) . . ..” 462
F.3d 237, 249 (3d Cir. 2006).
The government also argues that if district judges have
discretion to vary from the Guidelines range in crack cases, the
result may be “unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct,” 18 U.S.C. § 3553(a)(6). That sentences after
Booker will not be as uniform as sentences before Booker is
doubtless true, but this is a consequence of the Supreme Court’s
decision to treat the Guidelines as advisory rather than
mandatory. As we have mentioned, the Commission concluded
that disparities existed before Booker – disparities between
powder and crack traffickers and among crack dealers. The
Supreme Court’s giving district courts discretion may or may not
ameliorate those disparities and may or may not create new ones.
Whether these would be “unwarranted” disparities we cannot say
at this point. It is enough that under Booker and § 3553(a), the
district court erred in Pickett’s case. His sentence therefore must
be vacated and the case remanded for resentencing consistent
with this opinion.
So ordered.
R OGERS , Circuit Judge, concurring: It has taken many
years, but the court finally has concluded that it is
authorized to hold, and does hold, that a district court, in
sentencing a defendant, may properly take into account the
fact that the 100-to-1 ratio embedded in the Sentencing
Guidelines for crack-to-powdered cocaine offenses bears
no meaningful relationship to a defendant’s culpability.
As early as 1995, the Sentencing Commission issued
a Special Report stating that the ratio was unfair and
produced extreme sentencing anomalies, thereby failing to
accomplish the purposes set forth in the Sentencing
Reform Act, 18 U.S.C. § 3553(a). 1 In 1996, when the
Guidelines were mandatory, Judge Wald explained why
the 100-to-1 ratio, which the Commission itself had
identified as a source of unfairness and unnecessarily high
sentences under § 3553(a), 2 established grounds for a
departure from the crack/cocaine Guideline. United States
v. Anderson, 82 F.3d 436, 445-50 (D.C. Cir. 1996) (Wald,
J., dissenting). The Sentencing Commission continued to
document the unfairness and irrationality of the ratio in its
2002 and 2004 reports, repeating that the crack/cocaine
Guideline does not adequately reflect the relative
culpability of crack offenders. 3
1
United States Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy (1995).
2
Special Report at xii-xiii, xiv.
3
United States Sentencing Commission, Report to Congress:
Cocaine and Federal Sentencing Guidelines at v-ix (2002); United
States Sentencing Commission, Fifteen Years of Guidelines
Sentencing: An Assessment of How Well the Federal Criminal Justice
System is Achieving the Goals of Sentencing Reform at xv-xvi, 113-
114, 131-132, 141 (2004).
2
Absent en banc review, Anderson remained binding on
panels of this court. See LaShawn v. Barry, 87 F.3d 1389
(D.C. Cir. 1996) (en banc). In Booker v. United States,
543 U.S. 220, 245 (2005), however, the Supreme Court
held that the mandatory Guidelines violated a defendant’s
rights under the Sixth Amendment and that, as a remedy,
the Guidelines scheme could be treated as advisory only.
In the wake of Booker, the court today holds that under an
advisory Guidelines scheme, a district court, in sentencing
a defendant, may take into account when considering the
sentencing factors of 18 U.S.C. § 3553(a) that the 100-to-1
ratio in § 2D1.1 bears no meaningful relationship to a
defendant’s culpability. The plain text of § 3553(a)
presents no bar to a district court’s consideration of the
problems with the ratio that applies to all crack offenders,
see Op. at 9 n.4, and were the court to reach any other
conclusion it would frustrate the overarching purpose of a
sentencing scheme to impose just punishments reflecting
the seriousness of an offense and be contrary to the
sentencing factors that Congress established in
§ 3553(a)(2). 4
As to Pickett’s challenge to the ratio on equal
protection grounds, this court has previously rejected it.
See United States v. Holton, 116 F.3d 1536, 1548 (D.C. Cir.
1997); United States v. Johnson, 40 F.3d 436, 440 (D.C.
Cir. 1994), cert. denied, 514 U.S. 1041 (1996). Absent en
banc review, the court is bound by its precedent. See
LaShawn, 87 F.3d at 1395.
Accordingly, for these reasons, I concur in holding that
the district court erred when, in sentencing Pickett, it
declined to consider the problems that arise in applying the
4
See Booker, 543 U.S. at 264-65; Fifteen Years at iv-v.
3
100-to-1 ratio in Guideline § 2D1.1 to crack cases under
the advisory Guidelines scheme, and that his sentence must
be vacated and the case remanded to the district court for
resentencing.