Falling through the crack: how courts have struggled to apply the crack amendment to "nominal career" and "plea bargain" defendants.

• Author: Kosman, Maxwell Arlie Halpern

In 2007, after a decade of debate, the U.S. Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of crack-cocaine-related offenses. A few months later, the Sentencing Commission passed another amendment that rendered it retroactive. Nearly three years after the passage and retroactive application of the "crack amendment," however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission's directives. The first circuit split emerged regarding the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the crack amendment. The second circuit split emerged over the question whether a subset of defendants who pled guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the crack amendment are eligible to receive the benefits of its retroactive application.

This Note first argues that the language of the applicable statutes and policy statements and the specific actions taken by the Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in the sentence pursuant to the crack amendment. This Note argues, however, that the lack of explicit directives from the Sentencing Commission regarding the "plea bargain" defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the amendment. Because the Sentencing Commission instituted and rendered retroactive the crack amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the purpose of the amendment to exclude these defendants from its benefits.

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY OF FEDERAL SENTENCING AND THE CRACK AMENDMENT A. The Federal Sentencing System 1. Pre-Booker Sentencing Mechanics 2. Federal Rule of Criminal Procedure 11 Sentences 3. The Demise of the Mandatory Federal Sentencing Regime B. The Crack Amendment II. THE CAREER-OFFENDER CIRCUIT SPLIT A. Applying the Crack Amendment to the Federal Sentencing Guidelines B. Courts Should Not Find Nominal Career Offenders Eligible for a Reduction in Sentence Pursuant to the Crack Amendment C. The Exclusion of Nominal Career Offenders from the Benefits of the Crack Amendment Was Not an Oversight D. The Exclusion of Nominal Career Offenders Conflicts with the Goals of the Crack Amendment III. THE PLEA BARGAIN CIRCUIT SPLIT A. The Basis of the Circuit Split B. Cobb Defendants Should Be Eligible for Sentence Reductions Under the Crack Amendment. CONCLUSION INTRODUCTION

When the "crack amendment" to the Federal Sentencing Guidelines finally took effect on November 1, 2007, it was overdue by any metric. The U.S. Sentencing Commission (1) had been lobbying Congress in vain for ten years to remedy the sentencing disparity between crack and powder cocaine offenses, which caused defendants convicted of crack offenses--who were disproportionately African American (2)--to receive much stiffer punishments than those who were convicted of possessing similar quantities of powder cocaine. (3) Finally, the commission took action itself and passed the amendment, (4) which assumed legal force after Congress took no affirmative steps to prevent its passage. (5) A few months later, the Sentencing Commission voted to apply the crack amendment retroactively. (6) As expected, the commission members patted themselves on the back for a job well done (7) and the Bush Administration disapproved. (8) However, the fight over the retroactive application of this amendment was far from over. Two-and-a-half years after the amendment was applied retroactively, federal courts are still grappling with its application. Two circuit court splits on the subject have emerged, both of which have profound implications on individual defendants' sentences.

The first circuit split questions whether a subset of "career-offender" (9) defendants are eligible for a reduction in their sentence pursuant to the crack amendment. While reducing these defendants' sentences may seem fair, the plain language of the policy statement governing the application of retroactive amendments indicates that these defendants are ineligible for the sentencing reduction. (10) All of the circuit courts that have addressed this question have reached that conclusion except the Second Circuit.

Meanwhile, a more difficult and interesting question has emerged regarding defendants who, prior to the passage of the crack amendment, pied guilty pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to a sentence that was explicitly calculated in accordance with the pre-amendment Federal Sentencing Guidelines. While many courts have yet to address this question, a majority of circuits have indicated that these defendants are also ineligible for a reduction in sentence. (11)

This Note argues that the exclusion of these plea bargain defendants from the benefits of the crack amendment runs counter to the goals that motivated the amendment's enactment. Further, the Sentencing Commission's response to the "career-offender" circuit split provides insight into the commission's view of the "plea bargain" circuit split. By speaking clearly to the impact of the crack amendment on career offenders, the commission implicitly instructed judges not to apply the amendment to plea bargain offenders. Part I provides the histories of the federal sentencing system and the crack amendment. Part II then discusses the career-offender circuit split and concludes that the majority of courts are correct in excluding these offenders from the benefits of the crack amendment. Finally, Part III argues that the current majority view in the plea bargain circuit split is, in contrast to the predominant view on the career-offender question, at odds with the intentions of both Congress and the Sentencing Commission.

1. THE HISTORY OF FEDERAL SENTENCING AND THE CRACK AMENDMENT

   1. The Federal Sentencing System

      This Section provides background on the federal sentencing process. First, it discusses the sentencing mechanics that were in place prior to the Supreme Court's landmark decision in Booker. (12) Second, it discusses pertinent aspects of Federal Rule of Criminal Procedure 11, which governs plea bargains in the federal system. These two pieces of background information are essential to an understanding of the two circuit splits: both splits emerged as a result of the strict sentencing mechanics outlined in this Section. Finally, this Section explains the effect that Booker has had on the two circuit splits.

      The federal sentencing regime, meant to check judges' broad discretion to determine convicted defendants' sentences, (13) has been frought with controversy since its inception. The Sentencing Reform Act (the "SRA") (14)--the statutory basis for the federal sentencing system--was passed in 1984, but "[t]he guidelines did not become fully operational until 1989 because many of the first guideline cases focused primarily on constitutional challenges to the SRA's entire approach to sentencing reform." (15) In 1989, the Supreme Court determined that the creation of a U.S. Sentencing Commission, intended to promulgate the mandatory federal sentencing structure, (16) was within Congress's constitutional bounds. (17)

      The Sentencing Commission set out to establish a framework that met the two seemingly conflicting congressional objectives motivating the sentencing system. First, the commission sought to establish a regime that would "provide certainty and fairness in meeting the purposes of sentencing, [and avoid] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." (18) Second, however, the commission sought a system that would "maintain[] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." (19)

      1. Pre-Booker Sentencing Mechanics

         Under the pre-Booker federal sentencing system, courts took into account the seriousness of the offense and the defendant's criminal history to establish a sentencing range. More specifically, courts looked to the base offense level assigned to the crime for which the defendant was convicted; the more serious the crime, the higher the base offense level it would carry. (20) This base offense level was then adjusted depending on the specific characteristics of the crime in question (21); these factors could either increase or decrease the base offense level. (22) Courts could then further adjust the offense level based on various factors, such as "victim-related adjustments, the offender's role in the offense, and obstruction of justice." (23) Finally, the offense level could be decreased further if the defendant accepted responsibility for his involvement in the crime.

         In addition to determining an offender's offense level, courts assigned one of six criminal history statuses to defendants, depending on the nature of any previous convictions and how much time had elapsed since they occurred. (24) The defendant's "guideline range" was then determined by finding the point at which his sentencing level intersected with his criminal history category on the commission's sentencing table.

         A slight sentencing twist applied to defendants deemed by the guidelines to be career offenders. Under USSG [section] 4B 1.1 (a), a defendant is a career offender if:

         (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has...