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 cases:  What 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:

• USSC provides (yummy?) half-a-loaf crack amendment
• Why the USSC's new crack work is soooooo significant