Defendant Cleotis Eugene Russell, Jr. appeared before this Court for resentencing on August 4, 2009. At Mr. Russell's original sentencing hearing on November 28, 2007, I rejected Mr. Russell's request to vary from the guideline range based on the imbalance in sentencing between crack and powder cocaine. The United States Court of Appeals for the Third Circuit remanded this case for resentencing because the United States Supreme Court in Kimbrough v. United States, 128 S.Ct. 558 (2007) and Spears v. United States, 129 S.Ct. 840 (2009), effectively overruled United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), a case I relied upon in rejecting Mr. Russell's request for a variance. At resentencing I applied a 1-to-1 crack-to-powder ratio, an approach to sentencing in crack cocaine cases which I intend to apply in all future crack cocaine sentencings. I write this Opinion to explain my reasons for this.
Mr. Russell was charged in the Indictment with four counts of Possession with Intent to Distribute and Distribution of Five Grams or More of Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii). On August 21, 2007, Mr. Russell pleaded guilty to all four counts without a plea agreement.
Mr. Russell acknowledged responsibility for 53.1 grams of cocaine base, commonly known as crack cocaine, resulting in an offense level of 30. The offense level was decreased three levels due to Mr. Russell's timely acceptance of responsibility. Thus, Mr. Russell's total offense level was 27, and with a Criminal History Category of III, the applicable guideline sentencing range was calculated to be 87 to 108 months' imprisonment. In addition, Mr. Russell faced a statutory mandatory minimum sentence of 60 months' imprisonment on each count.
At the original sentencing hearing on November 28, 2007, I overruled Mr. Russell's objection to the assessment of one criminal history point for his 2003 marijuana possession conviction, and I denied his motion for downward departure. As noted, I also declined to vary from the guideline sentencing range based on a disparity in sentencing between crack and powder cocaine defendants. I imposed a sentence of 87 months' imprisonment.
At resentencing Mr. Russell's counsel submitted a Second Position with Respect to Sentencing Factors, arguing that I should exercise my discretion and impose a sentence using a 1-to-1 crack-powder ratio. Applying such a ratio in this case results in a total offense level of 13 and a corresponding guideline sentencing range of 18 to 24 months' imprisonment. Mr. Russell requested that I sentence him to the statutory mandatory minimum sentence of 60 months' imprisonment. Following the reasoning set forth in United States v. Gully, __ F.Supp.2d __, 2009 WL 1370898 (N.D. Iowa May 18, 2009) and United States v. Lewis, __ F.Supp.2d __, 2009 WL 1591633 (D.D.C. June 9, 2009), I did apply the 1-to-1 crack-powder ratio in this case, and imposed the statutory mandatory minimum of 60 months' imprisonment.
The United States Supreme Court in Spears v. United States, __ U.S. __, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam) held that district courts "are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." 129 S.Ct. at 843-44. In particular, the Supreme Court explained the district court's power as follows:
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....
I have concluded that there are sound policy reasons for adopting a 1-to-1 crack to powder ratio for all crack cocaine sentencings. This conclusion is in accord with the United States Department of Justice's position endorsing the elimination of the disparity between crack and powder cocaine in sentencing. Recently, Attorney General Eric Holder stated:
It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes. It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups.
Attorney General Eric Holder, Remarks as Prepared for Delivery by Attorney General Eric Holder at the D.C. Court of Appeals Judicial Conference (June 19, 2009) (www.usdoj.gov/ag/speeches/2009/ag-speech-090619.html.) In addition, Assistant Attorney General Lanny A. Breuer has stated in part as follows:
[W]e cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine. We know of no other controlled substance where ...