Defendant Lamar Antonio Owens appeared before this Court for sentencing on August 4, 2009. At Mr. Owens' sentencing 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. Owens was charged in the Indictment with (i) Conspiracy to Possess with Intent to Distribute and Distribution of Five Hundred Grams or More of Cocaine and Fifty Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846; (ii) Possession with Intent to Distribute and Distribution of Fifty Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); and (iii) Possession with Intent to Distribute and Distribution of Five Hundred Grams or More of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On May 12, 2009, Mr. Owens pleaded guilty to all three counts without a plea agreement.
Mr. Owens acknowledged responsibility for 103 grams of cocaine base, commonly known as crack cocaine, and 2,306 grams of powder cocaine. The government contended at sentencing that because this case involved both crack and powder cocaine, it was not an appropriate case to exercise my discretion and apply a 1-to-1 ratio. I disagreed. On the contrary, I concluded that this case readily demonstrates the disparity in sentencing between crack and powder cocaine, which revealed itself here as evidenced by the lower sentencing range when the 1-to-1 ratio was applied. The drug quantities were converted to a marijuana equivalent because of the presence of two differing controlled substances pursuant to U.S.S.G. § 2D1.1, note 10, resulting in an offense level of 30. The offense level was decreased by three levels due to Mr. Owens' timely acceptance of responsibility, and by two levels because he met the "safety valve" criteria under 18 U.S.C § 3553(f). Thus, Mr. Owens' total offense level was 25, and with a Criminal History Category of I, the applicable guideline sentencing range was calculated to be 57 to 71 months' imprisonment.
Mr. Owens's counsel submitted a 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 23, and a corresponding guideline sentencing range of 46 to 57 months' imprisonment. Mr. Owens' counsel further argued that I should vary from this range and impose a sentence of 36 months. Although I declined to vary, following the reasoning set forth in United States v. Gully, 619 F.Supp.2d 633 (N.D. Iowa 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 imposing a sentence of 50 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 the penalty structure differs so dramatically because of the drug's form.
Moreover, the Sentencing Commission has documented that the quantity-based cocaine sentencing scheme often punishes low-level crack offenders far more harshly than similarly situated powder cocaine offenders. . . . The impact of these laws has fueled ...