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April 28, 2007

How will the new USSC crack work impact present (and past) cases?

In this official press release, the US Sentencing Commission explains not only that it has amended the crack guidelines to lower applicable sentence ranges, but also that a forthcoming report "will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" (basics here).  These developments should have a profound impact on all on-going crack cases and may lead defendants still serving terms under the old crack guidelines to seek reductions in their sentencing terms.   However, because of Booker and various retroactivity rules, legal uncertainty will surely surround whether and how the USSC's new crack work will impact present and past cases.  Let's start at the top:

The Supreme Court:   As noted here, the Supreme Court has pending before it a crack-sentencing case, Claiborne v. US.  In Claiborne, the district court concluded the old crack guideline range was too harsh, but the Eighth Circuit declared unreasonable the selected below-guideline sentence.  Under the new crack guideline, Mario Claiborne's guideline range would be lowered, but the district court's selected sentence would still be below the new sentence range.  Whether or not the Justices define reasonableness review in guideline-centric or 3553(a)-focused terms, the new crack guideline and the USSC's forthcoming report surely could (and likely should) impact its work in Claiborne.

The Circuit Courts:  I have long thought that the USSC's "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives" should be sufficient to render the old crack guideline presumptively unreasonable in light of the provisions of 3553(a).  Nevertheless, circuits have applied their presumption of reasonableness to crack sentences; indeed, to date, no circuit has reversed a single within-guideline crack sentence as substantively unreasonable. There now must be hundreds of within-the-old-guideline crack sentences currently on appeal that, in light of the USSC's new work, can no longer be simplistically viewed as reasonable simply because they are within the old guideline range.  Arguably, in light of the USSC's new work, circuit courts ought to remand for resentencing every within-the-old-guideline crack sentence currently on appeal.

The District Courts:  More than 100 crack sentences are imposed each week in the federal sentencing system.  Technically, the USSC's new crack guideline does not become official until November 1.  Then again, technically, all the guidelines are merely advice after Booker.  I see no obvious reason why the district court ought not "consider" the very latest guideline wisdom from the Sentencing Commission even though its advice is not yet "officially" the (advisory) law.  (I have been told that the last significant USSC guideline sentencing reduction (involving the immigration guideline in 2001) led many district courts to just continue sentencing until the new guideline became officially effective.  But that was, of course, before Booker changed the legal status of the guidelines.)

Past casesWhat the new USSC crack work means for current cases is complicated enough, but what it might mean for past cases is even more intricate.  The USSC can (but rarely does) make its amendments retroactive.  This official press release does not address this issue, but currently incarcerated crack offenders will surely want to do so ASAP.   (I would guess there are perhaps as many as 50,000 federal offenders currently serving terms under the old crack guidelines.)  I trust the USSC has thought through some of these retroactivity issues, and I am hopeful that its forthcoming report will provided some needed guidance on what should happen to defendants sentenced under the old unjust guidelines.

Recent posts on the USSC's new crack work:

April 28, 2007 at 03:32 PM | Permalink

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My husband is in federal prison

Posted by: Michelle Corker | Jun 24, 2007 6:58:04 PM

my fiance' is currently incarcerated and was sentenced tp ten years on may 14, 2007 which he turned himself in to FCC in Yazoo city, ms on june 25, 2007. he was tried under the booker case and was not properly sentenced. he was sentenced as a second time offenderbut he was not. he had a prior charge over ten years ago which he got expunged in march 2006. he also had some things added to his psi report that shouldn't been there which increased his points and his sentence. i hope that this law is retroactive as well as effective because i know alot more families are hurting and lacking that male figure because of unfairness.

Posted by: latoyia love | Sep 6, 2007 7:26:21 PM

My fiance' is doing federal time and was sentenced 11 years on 1 count. Let's continue to be strong and pray that Nov. 1st will make a life changing moment for all of those that have loved ones incarcerated.

Continue being prayerful!

Posted by: | Sep 11, 2007 12:36:51 AM

9/21/07 - U.S. Sentencing Commission extends deadline for letters on crack guideline retroactivity to Nov. 1.

You still have time to write to the U.S. Sentencing Commission and ask them to ensure that thousands of individuals serving unjustifiably harsh guideline sentences for crack have a chance to benefit from possible sentence reductions, if the amendment goes into effect on Nov. 1. Read more and act now

Posted by: Rita | Oct 3, 2007 2:34:07 PM

I am a full-time student and employee, as well as a single mother of two young daughters who will be affected by this amendment. My husband and daughters' father is currently incarcerated in a federal prison, serving 10 years on a drug related charge. He has been in custody since May 5th, 2003 and unfortunately we have not been able to see him since 2005, when the unit he resided in was evacuated from Beaumont,Texas to Leavenworth, Kansas during Hurricane Rita due to flooding issues. I always have and will continue to pray for his release as well as the release of others who have family members that need them in their lives. I truly belive that all things take place and come about for a reason and this Nov. 1st law WILL be retroactive. One must always put God first and think positive in order to become successful in life and bring needs/wants into existence.

Posted by: Elizabeth Corona | Oct 25, 2007 2:18:57 PM

My fiance has been incarcerated for almost 12years under the old law. This has been very hard for both of us. Not being able to attend funerals of loved ones, not being able to see children doing their first any thing. I hope and pray that the law goes through so that my family and the families of other incarcerated inmates will be able to go on and be come positive members of society. I will pray for all of the families that are effected by this unjustice. KEEP YOUR HEADS UP.

Posted by: Gabrielle McBride | Oct 30, 2007 8:09:45 PM

I have a mother and a sister that has been in federal prison since 1997 it's was there first offense my sister had never even had traffic ticket they gave her 12yrs my mother 27yrs i pray for something i was 18yrs old i am now 28 my brothers where 12 and 10 and now are 20 and 22 and are in college all our lives has been very hard with no mother or father i hope it does not happen to any other children i will pray also thank you

Posted by: Keary Johnson | Nov 15, 2007 3:38:44 PM

My uncle was sentenced to 37years under the old crack law.I dont thing there is no way that the sentence he got was right.I mean no sentence is right but cerial killers an rapists have gotten way less time then he got an all they have him on is consparucy really.I Luv You uncle Faradd We All Out here riding for you.

Posted by: Birah | Dec 11, 2007 8:43:49 PM

thank god for logical people

Posted by: marian broomall | Dec 27, 2007 9:24:24 PM

my husband has been incarcerated for 2 years on a drug conspiracy that he was sentenced to 15 years on. we have 4 children that range from the age of 3 to 15 years old. Our oldest boy went from being on honor role and a great kid to being on house arrest and being sent to a juvinile detention center since his dad has been gone. Our 3 year old cries daily for daddy to come home. one day he asked me 26 times to bring his daddy home. Getting arrested was the best thing that ever happened to my husband. Prison time has been good for him but its been long enough 15 years is to long my kids need their daddy home. he is a great father and always has been. He messed up and he pays for it everyday he doesnt see his kids play their sports or see our baby grow into a young child. we need him home to help me financially and so he can prove that he can be a productive member to society and raise his children into productive adults. We need help. god is on our side I know this and I pray everyday that someone will change these laws, even if he has to come home on house arrest, he will be there for his kids

Posted by: HEATHER SCRUGGS | Jan 10, 2008 12:30:22 PM

Both of my brother are in jail now because of a conspericy with no evidence...
and Crack was supposely involved..
so hopefully they will take in consideration, there family and let the crack law reduce there sentence.
One of them have 12 children arranging from 19-8 months..
and the other have 2; 5 and 7
and there is no way that all of them can make it out here without there father...

Posted by: Keisha | Nov 9, 2008 5:48:27 PM

I am a 20 year old full time student attending college. My mother died and my father has been sick and away for more than half of my life.The only sibling that i had close to me got incarcarated about 8 months ago. That crushed my heart and it left me in shock. I cant belive that he got sentenced to 15 years for conspiracy charges and murderers get away with less than that. I will be unable to see him now that the state has moved him to south carolina and he requested he stay here so that i can be able to visit. Its something that will hurt me and help me better myself at the same time. I feel like the system is wrong and they need to have better sentencing for killers and rapers than drug dealers. The state is tormenting families and leaving families at a fallen stage and its ridiculous. I hope this can help change something and this law needs to go in effect not only for me but for fathers and mothers and sisters and the kids to come. May God bless the victims who needs their life back.

Posted by: wedney | Mar 16, 2009 10:49:54 AM

he also has a daughter that needs him. what do we tell her when she's growing up!

Posted by: wedney | Mar 16, 2009 10:52:24 AM

Hi, I'm a 29 year old student,I agree with Keisha, murderers are walking away with less time than drug dealers and they have taken a life. Rapist,same with them as well the person that they have raped have to live with the pain everyday of their life... but still they get less time. I'm not at all racist but white people commit the same crimes as blacks, whether they have sold drugs,a rapist or even committed murder,the sentence that they get is less than a black person. This has to stop!! My boyfriend got 15 years for conspiracy (drug related) that same day a convicted murderer got manslaughter and only had to serve 4 years. Can somebody please tell me where is the real justice? Yes drug dealers are wrong for what they do and do need to be punished,but the sentences that they get are ridiculous. They get the sentence that a murderer or a rapist should get. Please somebody help our race. Obama is just getting started... GO OBAMA!!

Posted by: Zakiya Strawter | Aug 25, 2009 1:27:39 PM

My husband, was sentence to 7yrs in 2006 on a drug charge.We have 2 boys 6&4 but he has other kids as well.I just heard about this new law,that suppose to take affect in November,of this year.I hate to sound ignorant,but i quess i am when it comes to information concerning this law if there is any information that someone can give to me so that i can better understand what and how this law will effect my husband or should i say my family.please and thank you.I to will pray and keep everyone who has a love one in jail.

Posted by: Junneta Mathis | Sep 4, 2009 12:41:30 PM

My husband has been locked up for a year for conspiracy but was sentenced to 6 years. I really hate that many people go through this terrible ordeal that the laws have created for us. I work a fulltime job and we have four kids..that misses their father very much. It is so hard for kids to not understand why daddy isn't coming home right now..they don't understand. I don't understand the conspiracy laws...that doesn't mean that the person actually did the crime..the crime was in mind..If that's the case a lot of people should be arrested for making accusations. I think that it personally need to hit home for a person with power or authority to fully understand what it is for a family to not have a member. Look at the situation where: I have to travel, spend money to visit, hotels, gas, money on books, the high phone bill, and trying to maintain with one income coming in. It is really hard out here, and I know it is hard in there for my husband who gets 300 minutes a month and only can talk 15 minutes..which is about 80 dollars a month just to call home and the high items for commissary..all those are burdens to families who are left here because on these ridiculous laws. Sentencing people who rape children, abuse children, murder people, and attempting to murder (just like conspiracy..huh?) should get years that many of the people above and my husband received. I think that the law should be retroactive so that we don't have to pay for lawyers to get or love ones back in court to file a motion. This is my first time going through something like this and being away from my husband this long..I miss him so much..and then they want to judge you if you go get help from the government (welfare); what do they expect you to do with trying to raise children without a father around. I will be praying for all the inmates that are sentenced for crack when it should carry the same sentence has powder...it is alot of black and hispanic men locked up because of those ridiculous laws. I pray that many of those men, I really don't care what color..men and women will benefit from this new law..Let's pray that it goes retroactive!!! Drug dealers do have harsher penalties; and that is not fair. there are murderers who can get bonds..but drug dealer cant..(pre-trail detention)I think Congress and House need to have passion for people and their families..what about the kids..

Posted by: Quan | Nov 12, 2009 10:40:36 PM

Mrs. Junneta Mathis
I could not have said it any better, you are so right and it is so true...
I'm sorry for your situation as I am going through the same thing...CONSPIRACY!!!
I will continue to pray for you and all inmates and their families. Congress please see that this situation is tearing up families and the kids, if you don't know, it really does have an effect on them, at home, and at school. Please pass this law so that families can be reunited and live. And we do know that when these inmates do get out that they will be looked at as criminals and it will be hard out here for them because they are convicted felons, a law should be passed that when they do go out to look for a job that they will not be looked at any different than the next man...
Sincerely, praying for a change

Posted by: Zakiya Strawter | Jan 9, 2010 10:34:02 AM

I am a 27 year old supervisor who is raising 2 kids alone. My fiancee was sentenced to 60 months ti federal prison for 5 grams of crack. He was sentenced after Pressident Obama signed the "new" law but from what I'm hearing it might not affect him because he was sentenced before Nov. 1, 2010. I don't feel like that's fair. It should affect all offenders whether they were sentenced before or after. Have has been incarcerated for exactly 16 months, 1 week, and 4 days. We havw a 1 year-old who doesn't know him. He has other younger kids who miss him. His kids and family are suffering not him. He just lost his freedom out here. He has shelter, 3 meals a day, and outside time. So, that's not punishment. We don't have him. He's not able to bond with his kids, that's not punishment. It's torture to his kids. I am asking you to please make a few more changes before Nov. 1st. Give them a chance to regain their manhood by allowing them to apply and receive decent jobs and it will cut back on some of the drug crimes being committed. They need ways to provide for their families and when you limit them to certain jobs they turn to the streets. Please think about it, sleep on it or whatever.

Posted by: Nichole Richardson | Sep 23, 2010 4:51:22 PM

Hi, I'm a 29 year old student,I agree with Keisha, murderers are walking away with less time than drug dealers and they have taken a life. Rapist,same with them as well the person that they have raped have to live with the pain everyday of their life... but still they get less time. I'm not at all racist but white people commit the same crimes as blacks, whether they have sold drugs,a rapist or even committed murder,the sentence that they get is less than a black person. This has to stop!! My boyfriend got 15 years for conspiracy (drug related) that same day a convicted murderer got manslaughter and only had to serve 4 years. Can somebody please tell me where is the real justice? Yes drug dealers are wrong for what they do and do need to be punished,but the sentences that they get are ridiculous. They get the sentence that a murderer or a rapist should get. Please somebody help our race. Obama is just getting started... GO OBAMA!!

Posted by: nike air jordan spizike | Nov 29, 2010 3:15:44 AM

ALERT!
My brother(David P.), has been a victim of sexual and other ABUSES by GUARDS at Chester MHC(and an OLDER inmate/patient whom he has to see almost on a daily basis).
The "admins.", has done NOTHING, but COVER UP, for these state of Illinois employees;GUARDS.
I am PLEADING for the DHS and their co-ops, to be EXPOSED for their roles in this COVER UP(for years);Dr. Mary Hennesian, Dr. Brazil Sawyer, Dr. Debra Ferguson, X asst. admin. David Dunker, X Unit C director, Roy Evans(who took documents that declared David innocent and LIED about David leeting him VIEW them, to stop guard Chris Roberts from passing rumors about him, because we(his family), has filed many ligitimate written complaints against Roberts for assualts on David(NOT provoked by David, but by Roberts, Ken/Can, Depa, Don Berry, Clarence(brother of another employee there who gave rodneyyoder.com troble before he SUED Chester and was released in '2005', for the abuses and lies orchestrated on him.
NOTE: Even though CMHC was wrong, Yoder has been found out to be just as perverted as the guards at CMHC(making him a 'HOSTILE' witness, for he used a FALSE reason;wanting to help us with David's case, to get to I for sex and learned that I wasn'r going to adher to his EVERY want whenever, however, he wanted!
We are also concerned for David health from FORCED PSYCH drugs and for his COGNITIVE abilities, for these drugs shrinks the BRAIN and causes DISfiguration of a persons face, making it appear that something is wrong with his brain;leaving them to appear to have some sort of retardation essence happening with them.
There is a CD called, "Psychiatry'; 'The DEATH Industry'.
I am an UNemployed Certified Medical Coder/MT and CAC, who is fighting for justice for my brother;aslo a member of the NAARPR(Natl. Alliance Against Racist and Polotical Repression).
On Sat. 02.23.2013, we met again, at the U of C Ida Noyle Hall, to continue to press for legislation for PoliceAccountability, to STOP individuals like JON BURGE(torturist of many innocent individuals);also we're fighting against EXCESSIVE sentences, for many of our lovedones, has served from 20 years or more of their lives in jail and exceeds the age of 50 years.
Children/grandchildren, are in DIER need of their moms/dads and grandparents and to keep them in prison doesn't help any concerned.
These individuals has served their time and has NO intention of living the lives they once lived OR was forced to live, because of the lack of jobs to provide for their families.
We are pleading for legislation to STOP these JON BURGE characters, from prolonging their lives any longer.

Posted by: ELois P. Clayton | Feb 25, 2013 1:42:11 PM

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