The opinion of the court was delivered by: Juan R. Sanchez, J.
Petitioner Jeffrey Riggins seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2255. Riggins argues the sentence imposed for his conviction of possession of cocaine base (crack) with intent to distribute violates the Eighth Amendment because of the unwarranted disparity in the penalties for crack and powder cocaine offenses. Riggins also seeks leave to amend his § 2255 motion to add an ineffective assistance of counsel claim and a claim that this Court's application of the career offender provision of the United States Sentencing Guidelines violated United States v. Booker, 543 U.S. 229 (2005). For the following reasons, Riggins's § 2255 motion and request for leave to amend will be denied.
In December 2006, Riggins was indicted on one count of possession of five grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Seven months later, in July 2007, Riggins was indicted on an additional 24 counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Before trial, Riggins filed a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),*fn1 arguing the affidavit in support of the warrant for his arrest contained deliberately or recklessly false statements. Specifically, Riggins challenged statements by the affiant, Drug Enforcement Administration Task Force Officer Jeffrey Taylor, that (1) during an intercepted phone call on October 21, 2006, Riggins told the other party to the call he "had a very high yield of crack cocaine when he cooked the cocaine previously purchased from the other individual," and (2) Riggins had a series of phone conversations with the same individual on November 25, 2006, in which he "negotiated the purchase of 20 grams of cocaine from the other individual." Def.'s Mot. for a Franks Hr'g ¶¶ 3-4. Riggins argued Taylor's statement about the October 21 call was false because the transcript of the call did not support Taylor's characterization, and he challenged the statement about the November 25 call on the ground that there was no record of any intercepted call on that date.
In an August 27, 2007, Memorandum and Order, this Court denied Riggins's motion, finding Taylor's characterization of the October 21 call was a reasonable interpretation of the intercepted conversation,*fn2 and finding Riggins had failed to produce any evidence of malice or recklessness by Taylor, in light of the Government's evidence suggesting Taylor had simply misstated the date of the calls he identified as having occurred on November 25, 2006. This Court also found the allegedly false statements in the affidavit were not necessary to the determination of probable cause in any event.
Riggins proceeded to trial, and on November 5, 2007, a jury convicted him on all of the drug counts of the Superseding Indictment.*fn3 At the sentencing hearing on April 7, 2008, this Court adopted the Presentence Investigation Report (PSR) for Riggins, in which the probation officer concluded Riggins's criminal history qualified him as a career offender under U.S.S.G. § 4B1.1. PSR ¶ 30. As a result of his classification as a career offender, Riggins was assigned an offense level of 37 and a criminal history category of VI, yielding an advisory Guidelines range of 360 months to life. Id. ¶¶ 30, 67, 102. After considering the factors set forth in 18 U.S.C. § 3553(a), this Court sentenced Riggins to 432 months of imprisonment on the drug counts, 15 years on the firearm count (to run concurrently), eight years of supervised release, a fine of $3,000, and a special assessment of $2,600. Riggins appealed his conviction, challenging the denial of a Franks hearing, but the Third Circuit affirmed, finding that even if Riggins had been arrested illegally, such illegal arrest was not a basis to overturn his conviction. United States v. Riggins, 319 F. App'x 180 (3d Cir. 2009).
On April 8, 2010, Riggins filed a pro se § 2255 motion, seeking to vacate his sentence on the ground that the disparity in penalties for crack and powder cocaine offenses is unconstitutional. At this Court's direction, Riggins's re-filed his § 2255 motion on the Court's current standard form on June 21, 2010, and the Government responded to the motion on November 10, 2010. Riggins thereafter filed a reply brief in which he sought permission to amend his § 2255 motion to include an ineffective assistance of counsel claim and an additional claim that his sentence was unconstitutional. At this Court's request, the Government filed a response to Riggins's reply. Riggins filed a further reply in May 2011.
Pursuant to § 2255, a prisoner in custody may move the court which imposed his sentence to vacate, set aside, or correct the sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
In his § 2255 motion, Riggins challenges the constitutionality of his sentence based on the disparity in penalties for crack and powder cocaine offenses in the federal system.*fn4 Riggins argues his sentence violates the Eighth Amendment because (1) the crack/powder cocaine disparity is unwarranted and produces sentences grossly disproportionate to the crime for crack offenses, and (2) the disparity is no longer acceptable in light of the changing views of the various components of the criminal justice system on the subject since the passage of the Anti-Drug Abuse Act of 1986, which created the disparity. In support of the latter argument, Riggins cites the Supreme Court's recent decisions in Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 555 U.S. 261 (2009), in which the Court recognized the district courts' authority, post-Booker, to "reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines," and not simply based on the individualized circumstances of a particular case. Id. at 266. He also cites the Fair Sentencing Act of 2010 (FSA), which increased the quantities of crack necessary to trigger the five- and ten-year statutory mandatory minimum penalties under 21 U.S.C. § 841(b)(1), thereby reducing the crack-to-powder cocaine ratio to approximately 18:1. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372 (2010); Dixon, 648 F.3d at 197. Although acknowledging the FSA is not retroactive,*fn5 Riggins argues these developments reflect an emerging consensus that the crack/powder disparity creates sentences that are disproportionate and unwarranted.
The Government argues the enhanced penalties for crack offenses were not a factor in Riggins's sentence because his sentence was based on his status as a career offender, which resulted in a higher base offense level than if he had been sentenced based on the drug quantities attributable to him, and an advisory Guidelines range substantially higher than the ten-year mandatory minimum sentence applicable to the crack charge. While it is true Riggins's advisory Guidelines range was determined based on the career offender Guideline, rather than the Guideline for drug offenses, the crack charge appears to have affected the selection of the applicable offense level under that Guideline and thus the corresponding advisory Guidelines range.*fn6 Therefore, the Court will address Riggins's constitutional challenge.*fn7
As the Government notes, the Third Circuit has upheld the
constitutionality of the statutory mandatory minimum sentences for
crack offenses and the 100:1 crack-to-powder cocaine ratio against
Eighth Amendment, as well as equal protection, challenges.*fn8
In United States v. Frazier, 981
F.2d 92, 95-96 (3d Cir. 1992) (per curiam), the Third Circuit rejected
the argument that the disparity in the penalties for crack and powder
cocaine offenses was so disproportionate as to amount to cruel and
unusual punishment. The court first observed there are "reasonable
grounds" for imposing greater punishment for crack offenses than for
powder cocaine offenses involving similar drug quantities, including
"differences in the purity of the drugs, the dose size, the method of
use, the effect on the user, and the collateral social effects of the
traffic in the drug." Id. at 96. Noting the selection of the most
appropriate ratio was a judgment for Congress and the Sentencing
Commission, the court went on to hold the 100:1 ratio did not "step
beyond the bounds of the Constitution." Id. The court in Frazier also
rejected an equal protection challenge to the sentencing scheme's
100:1 ratio, finding no evidence the distinction between crack and
powder cocaine "was motivated by any racial animus or discriminatory
intent on the part of either Congress or the Sentencing Commission,"
and holding the distinction was "constitutional under rational basis
equal protection review." Id. at
95. Since Frazier was decided, the Third Circuit has consistently
adhered to these holdings. See, e.g., United States v. Marshall, No.
07-4778, 2009 WL 179876, at *2 (3d Cir. Jan. 27, 2009) (rejecting as
meritless a defendant's argument that the 10-year mandatory minimum
for his crack offense violated the Eighth Amendment because it was
disproportionate to his crime and disproportionate to the sentences of
powder cocaine defendants); United States v. Shields, 281 F. App'x
100, 101 (3d Cir. 2008) (adhering to prior holdings that mandatory
minimum sentences for crack offenses and 100:1 crack-to-powder ratio
do not violate the Eighth Amendment or a defendant's right to due
process); United States v. Alton, 60 F.3d 1065, 1069 n.7 (3d Cir.
1995) (noting Frazier decision is in accord with decisions of other
federal appellate courts "uniformly uph[o]ld[ing] the statutory and
guideline penalties for crack cocaine offenses against due
equal protection, and cruel and unusual punishment claims").
Although Riggins points to more recent developments in the law, including the Supreme Court's decisions in Kimbrough and Spears and the enactment of the FSA, two different panels of the Third Circuit have specifically declined to reconsider the constitutionality of the crack/powder cocaine disparity based on these developments. See United States v. Moore, 435 F. App'x 125, 128 (3d Cir. 2011) (rejecting entreaty to reconsider Frazier in light of the FSA and Kimbrough as "unavailing"); United States v. Chandler, 395 F. App'x 908, 911 (3d Cir. 2010) (declining to reconsider the constitutionality of crack/powder cocaine disparity based on Kimbrough and the FSA, and noting Kimbrough "does not support the notion that the . . . ratio and the mandatory ...