UNITED STATES of America, Plaintiff-Appellant, v. Anthony GAINES, Defendant-Appellee.
No. 95-2374.
United States Court of Appeals, Sixth Circuit.
Argued March 13, 1997. Decided Aug. 8, 1997.
122 F.3d 324
Jill Leslie Price (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Defendant-Appellee.
Before: JONES, SUHRHEINRICH, and SILER, Circuit Judges.
SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined. JONES, J. (pp. 331–36), delivered a separate dissenting opinion.
SUHRHEINRICH, Circuit Judge.
The United States Sentencing Guidelines (“Sentencing Guidelines“) have engendered much controversy since their inception in 1987. One of the most controversial provisions of the Sentencing Guidelines has been the 100:1 quantity ratio of powder cocaine to crack cocaine (“100:1 ratio“). The 100:1 ratio treats an individual who traffics in a given quantity of crack cocaine the same as it treats one who traffics in 100 times as much powder cocaine. The United States Sentencing Commission (“Sentencing Commission“) and Congress have engaged in an ongoing dialogue regarding the propriety of the 100:1 ratio. The most recent exchange between these two entities concerning the 100:1 ratio raises the single question on review in the case before us: whether a district court has the statutory authority to depart downward in the sentencing of a crack cocaine dealer on the ground that the Sentencing Commission, as opposed to Congress, determined that the 100:1 ratio should be eliminated.1 The district court concluded it had such authority and departed downward to the statutory minimum in sentencing Anthony Gaines for possession with intent to distribute cocaine base in violation of
Before the Sentencing Commission originally promulgated the Sentencing Guidelines in 1987, Congress adopted a similar 100:1 ratio in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, when it created mandatory minimum and maximum penalties for persons convicted of trafficking in crack and powder cocaine, as well as other controlled substances.3
The 100:1 ratio proved to be controversial from the outset. Sensitive to these criticisms, in 1994 Congress directed the Sentencing Commission to study and report on federal sentencing policy as it related to possession and distribution of all forms of cocaine. See Omnibus Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (September 13, 1994). The Act stated that the cocaine sentencing report “shall address the differences in penalty levels that apply to different forms of cocaine and include any recommendations the Commission may have for retention or modification of such differences in penalty levels.” Id.
The result of the Sentencing Commission‘s work was the book-length Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995) [hereinafter Cocaine Report], issued in February of 1995, which analyzed each factor perceived to be relevant to the distinction between crack and powder cocaine. In the Cocaine Report, the Sentencing Commission concluded that it could not support the penalty scheme in force. “The factors that suggest a difference between the two forms of cocaine do not approach the level of a 100-to-1 quantity ratio. Research and public policy may support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 ratio cannot be recommended.” Cocaine Report, p. xiv.
Based on the findings of the Cocaine Report, the Sentencing Commission submitted to Congress on May 1, 1995, amendments to the Sentencing Guidelines relating to cocaine offenses.5 Amendments to the Sentencing Guidelines for the United States Courts, 60 Fed.Reg. 25074, 25074 (May 10, 1995). The Sentencing Commission proposed (1) the
Pursuant to
II.
The facts of this case are straightforward and undisputed. In the summer of 1994, agents from the Bureau of Alcohol, Tobacco, and Firearms (“BATF“) arranged through a series of phone calls between Gaines and codefendant Orlando Freeman to purchase approximately 500 grams of crack cocaine from Gaines.8 When Gaines arrived at the location specified for the sale, BATF agents arrested him and seized 500 grams of crack on the front seat of his automobile.
A subsequent search of Gaines‘s house yielded four handguns and approximately $29,117 in U.S. currency. One of the handguns had an obliterated serial number. BATF agents and a canine later searched Gaines‘s impounded vehicle. The canine search revealed a specially constructed secret hydraulic lift compartment that сontained approximately three kilograms of crack cocaine. Gaines waived his Miranda rights and told the officers that he trafficked in large quantities of crack cocaine. Gaines also admitted that he and Freeman intended to sell 500 grams of crack cocaine to the BATF agents and that he intended to distribute the remaining three kilograms of crack cocaine later in the evening.
Gaines was charged with (1) conspiracy to distribute cocaine base in violation of
Under
The district court postponed sentencing until after November 1, 1995, in part to determine if Congress would approve the Sentencing Commission‘s proposed Sentencing Guidelines amendments eliminating the 100:1 ratio.
On November 9, 1995, 10 days after Congress had rejected the proposed amendments, Gaines appeared before the district court for sentencing. The court departed below the applicable guideline range and imposed the mandatory minimum sentence of 120 months. At the sentencing hearing, the court explained its decision as follows:
THE COURT: The guidelines set a sentencing level of that has a minimum of 168 months. There is also a statute for mandatory minimum sentence here of 120 months. It does seem to me given much of the testimony and scientific evidence that we have as outlined in the defendant‘s memorandum that it would be reasonable here to depart downward for the reasons articulated by [Defense Counsel], to depart downward under, is it 5K2.0?
DEFENSE COUNSEL: That‘s correct, Your Honor.
THE COURT: To the mandatory minimum of ten years. I‘ll just state for the record that I‘m not in the least trivializing thе crime here. It‘s very substantial. The amount was significant but it seems to me, overall, that the statutory minimum is probably a more appropriate sentence than the bottom of the guideline range. And I will therefore sentence the defendant to a period of ten years.
In the Judgment and Commitment Order the district court elaborated on its rationale for the departure. According to the district court, the Cocaine Report and the Sentencing Commission‘s proposed amendments to the Sentencing Guidelines indicated that the Sentencing Commission had not adequately considered the bases for the 100:1 ratio in promulgating the original Sentencing Guidelines. In particular, the district court focused on the following five factors discussed in the Cocaine Report:
[The 100:1 ratio] (i) cannot be justified by the psychological effects of the two forms of cocaine; (ii) has a disparate impact on blacks (in the last fiscal year for which data was available, 88.3% of crack defendants were black, 7.1% were hispanic, and only 4.1% were white); (iii) creates higher penalties for street dealers than for their more culpable suppliers; (iv) effects a double punishment on crack defendants in light of subsequent guideline changes; and (v) creates extraordinary disparities given the street values of the two forms of cocaine.
United States v. Gaines, No. CR 94-80821-1, at 7 (E.D.Mich. Nov. 13, 1995) (Mem.) (citations to Cocaine Report omitted). According to the district court, the Sentencing Commission‘s failure to consider these factors warranted a departure under U.S.S.G. § 5K2.0 and
III.
We review a district court‘s departure from the Sentencing Guidelines under an abuse of discretion standard. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996); United States v. Valentine, 100 F.3d 1209, 1210 (6th Cir.1996). Although we accord substantial deference to the district court, the level of deference is not absolute. “The deference that is due depends on the nature of the question presented.” Koon, 518 U.S. at 98, 116 S.Ct. at 2046. When considering factors for departure, for example, this Court grants the district court little deference. “[W]hether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court‘s resolution of the point.” Id. at 100, 116 S.Ct. at 2047.
IV.
Before addressing the parties’ arguments, we begin by establishing what this
The government makes three arguments. First, it claims that the Sentencing Commission‘s alleged failure to consider the disparities created by the 100:1 ratio is not an appropriate ground for departure because it is not a sufficiently unusual circumstance to set Gaines apart from the heartland of crack cocaine cases.10 Second, the government argues that the district court erred in concluding that the Sentencing Commission had not adequately considered the bases for the 100:1 ratio prior to issuing the Cocaine Report. Third, the government maintains that the district court has no authority to depart downward from the 100:1 ratio because Congress made a clear policy choice in rejecting the Sentencing Commission‘s proposed elimination of the sentencing disparity, and the courts may not disregard Congress‘s will in this matter.
Gaines counters that the downward departure was warranted under
Gaines‘s arguments boil down to the following propositions: By issuing the Cocaine Report, the Sentencing Commission implicitly admitted that it had not adequately considered many factors when it created the 100:1 ratio. These overlooked factors subsequently created several significant disparities. The disparities, therefore, comprise a mitigating circumstance “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” see
Notwithstanding Gaines‘s arguments, we think the government‘s third argument is dispositive on this point. Even if one perceives the Sentencing Commission‘s Cocaine Report as an open admission that the Sentencing Commission did not adequately take into consideration the alleged disparities inherent in the 100:1 ratio, it is clear that Congress did take them into account because it (1) initially directed the Sentencing Commission in 1994 to reexamine the issue, (2)
When Congress and the Sentencing Commission disagree on matters of sentencing policy, Congress trumps. Though Congress delegated broad authority to the Sentencing Commission to promulgate the Sentencing Guidelines and general policy statements,
Thus, contrary to Gaines‘s assertion on appeal, Congress did not grant the courts broad discretion to apply the sentencing ratio of their choosing based on alleged injustices inhеrent in the 100:1 ratio. To allow individual judges to depart downward because of the 100:1 ratio would:
allow every sentencing district judge to select his or her personal crack-cocaine ratio, at any level between 100:1 (by denying departure) and 1:1. It is hard to imagine a more flagrant violation of the Guidelines’ purpose to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.”
United States v. Anderson, 82 F.3d 436, 440 (D.C.Cir.), cert. denied, 519 U.S. 956, 117 S.Ct. 375, 136 L.Ed.2d 264 (1996) (quoting
As the government argues, the district court also lacked the authority to depart downward because the sentencing disparities created by the 100:1 ratio do not set Gaines‘s case apart from the heartland of crack cases. As the Court stated in Koon, “[b]efore a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline.” Koon, 518 U.S. at 95, 116 S.Ct. at 2046. None of the factors listed by the district court in justifying its departure are particular to Gaines or to a subgroup of crack defendants. “In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized.” U.S.S.G. § 5K2.0, comment. Given these determina-
In rejecting the disparities inherent in the 100:1 rаtio as invalid considerations for a downward departure under U.S.S.G. § 5K2.0 and
V.
We hold that the district court lacked the authority to deрart downward based on the 100:1 ratio. Congress has expressly rejected the Sentencing Commission‘s proposed amendments eliminating the 100:1 ratio, and the courts must honor this policy choice. Moreover, none of the facts or circumstances of this case serve to remove it from the heartland of crack convictions. We, therefore, VACATE and REMAND for resentencing consistent with this opinion.
NATHANIEL R. JONES, Circuit Judge, dissenting.
While I accept the premise upon which the majority opinion is based, I nevertheless remain troubled by the inherent lack of equity, rationality, and fairness in the sentencing scheme for crack cocaine offenders. Because I believe that the recommendations of the Sentencing Commission concerning issues of sentencing are entitled to deference, I believe that the downward departure granted by the district court was proper because it was based on the conclusions of the Sentencing Commission. Therefore, I respectfully dissent from the majority opinion which vacates Gaines‘s sentence and remands for resentencing. Instead, I would affirm the judgment of the district court.
In Furman v. Georgia, 408 U.S. 238, 366, 92 S.Ct. 2726, 2791, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring), Justice Marshall noted that the death penalty only continues to be tolerated because it falls primarily on the poor and members of minority groups, the “forlorn, easily forgotten members of society.” Justice Marshall‘s admonishment concerning the death penalty rings equally true for the current crack cocaine sentencing mechanism.
The Sentencing Commission was created because of a disillusionment with the then-current sentencing scheme that varied depending on the sentencing judge. The Sentencing Commission was intended to consolidate the power that had previously been held by the sentencing judge into a uniform body. Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 652, 102 L.Ed.2d 714 (1989). The Sentencing Commission was established with the following purposes:
(1) [to] establish sentencing policies and practices for the Federal criminal justice system that—
(A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code;
(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and
(C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and
(2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code.
In Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Supreme Court upheld the constitutionality of the sentencing guidelines established by the Sentencing Commission. The Court observed that the Sentencing Commission was created because of the disparity in sеntencing. Id. at 365-66, 109 S.Ct. at 651-52. In addition, the Court noted that in adopting mandatory sentencing guidelines Congress rejected “determinate sentencing” as well as a proposal to make the Guidelines permissive rather than mandatory. Id. at 366-67, 109 S.Ct. at 651-52. In upholding the constitutionality of the Guidelines, the Court rejected the petitioner‘s argument that Congress’ delegation of power to the Commission was unconstitutional. Id. at 371, 109 S.Ct. at 654. The Court wisely concluded that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 372, 109 S.Ct. at 655. Noting previous decisions where the Court upheld Congress’ delegation of tasks to specific agencies, the Court found that “Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet the constitutional requirements.” Id. at 374, 109 S.Ct. at 656. The Court found that Congress prescribed goals for the Commission and also armed the Commission with the tools to execute those goals. Id. The Court further found that the Commission has the power to “determine the relative severity of federal crimes and to assess the relative weight of the offender characteristics that Congress listed for the Commission to consider.” Id. at 377, 109 S.Ct. at 657 (citation omitted).
There may be a “forked tongue” at play here. Congress created the Sentencing Commission and gave it a mandate. Yet, as the Commission endeavors to fulfill its mandate, the force of the judgment it is to exercise is compromised. I think that it is, therefore, important to review the justification advanced for having such a body and analyze the powers it is expected to discharge.
The reasoning behind the existence of the Sentencing Commission is that an expert body was needed to promulgate rules to standardize sentencing of criminal defendants. See id. at 379, 109 S.Ct. at 658 (“Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to
The Sentencing Commission was intended to be comprised of those adept at addressing issues concerning our criminal justice system, particularly sentencing. At least three members must be federal judges.
While Congress has created an expert body entrusted with the adjudication of the Sentencing Guidelines, its suggestions go unheeded. After extensive study the Sentencing Commission has found that the 100:1 ratio is excessive. The Commission found “to the extent that Congress has created a sentencing system that so disparately and substantially punishes crack cocaine over other forms of the same drug, the absence of comprehensive data substantiating this legislative policy is troublesome.” Special Report to the Congress: Cоcaine and Federal Sentencing Policy, 179-80 (1995) (“Cocaine Report“). I will attempt to summarize the findings of the Cocaine Report succinctly.
The Commission found that “[i]n the early to mid-1980‘s, a national sense of urgency surrounded the drug problem generally, and crack cocaine specifically.” Id. at 180. Crack cocaine was perceived to be more dangerous than powder cocaine. Id. It was viewed as extremely addictive, responsible for an increase in crime, the cause of an increase in drug-related deaths, and particularly attractive to young people because of its availability and cost. Id. at 180-81. The Commission found that when Congress adopted the crack cocaine differential, the sale and use of crack were still in the early stages. Id. at 181. In reassessing the premises behind the differential with the benefit of additional information, the Cocaine Report demonstrates that those premises are flawed.
The Commission found that cocaine is not physiologically addictive in either its powder form or the crack cocaine form. Id. Rather, both crack and powder cocaine are psychologically addictive. Id. Furthermore, crack and powder cocaine differ in the manner of ingestion, but “use of cocaine produces the same type of physiological and psychotropic effects.” Id. at 182. Thus the Commission concluded that the form of cocaine is only significant because the form generally dictates the manner in which the cocaine is ingested. Id. Cocaine users that inject or smoke the substance usually use cocaine more frequently and are more likely to become addicted. Id. This can occur regardless of whether crack cocaine or powder cocaine is used. “Determining the appropriate degree of enhancement in penalty based sоlely on the form of cocaine, therefore, is difficult.” Id.
The Commission also determined that there is little scientific research to support or disapprove the link between psychosis and crack cocaine use. Id. Evidence is sparse—and indeed questionable as to whether the link between crack cocaine and psychosis is greater or lesser than the link between powder cocaine and psychosis. Id. at 183. The Commission also found that crack cocaine is associated with systemic crime (crime that is related to the marketing and distribution of crack cocaine), but that the connection with non-systemic crime had not yet been proven. Id. at 185.
The Commission advises that while crack cocaine does pose greater harms to society than powder cocaine, the differences could not support a 100:1 differential. At the time that Congress adopted the ratio in 1986, the Commission states, there were no Sentencing
The Sentencing Commission is analogous to a federal agency. See Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) (“The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking, ... and through the informal rulemaking procedure in
Congress has given the Sentencing Commission the authority to review the Sentencing Guidelines periodically and revise them as needed. The Commission has followed this mandate and concluded that a 100:1 ratio is not acceptable in light of the information currently available to the Commission. The opinion of this expert body is entitled to deference by the courts.
The Sentencing Commission has examined the 100:1 ratio in depth and concluded that it is no longer viable. The Supreme Court has noted that “Congress necessarily contemрlated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.” Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 1858, 114 L.Ed.2d 385 (1991). The Commission has done just that. Spurred at least in part by both the public outcry concerning the ratio1 as well as the view of some federal judges that the ratio is unjust,2 the Commission attempted to evaluate and review our current sentencing scheme. The Commission‘s findings are found in the Cocaine Report. The Cocaine Report is an authoritative conclusion that the 100:1 ratio is unjust and should be revised. The Commission‘s recommendations are entitled to deference.
It is a basic principle of administrative law that an agency‘s interpretation of its regulations should be given “controlling weight” as long as the interpretation does not violate the Constitution or a federal statute and is consistent with the regulation. See Stinson, 508 U.S. at 45, 113 S.Ct. at 1919 (“[p]rovided an agency‘s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.‘“) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). The Sentencing Commission is an agency and the Sentencing Guidelines are the regulations of the Sentencing Commission. See id. (“[t]he guidelines are the equivalent of legislative rules adopted by federal agencies.“). The guidelines were created by the Commission and continue to be revised and amended by the Commission. I emphasize again that Congress has delegated this authority to the Sentencing Commission. Therefore, unless the revised sentencing ratio violates the Constitution, a federal statute, or is plainly erroneous or inconsistent
The Supreme Court has a long history of upholding an agency‘s interpretation of its own rules. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 357, 109 S.Ct. 1835, 1849-50, 104 L.Ed.2d 351 (1989) (holding that the National Forest Service‘s interpretation of the National Environmental Policy Act was entitled to deference and reversing the decision of the Court of Appeals because it failed to give adequate deference to the Forest Service‘s interpretation of its own regulation); Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986) (finding that the Court of Appeals did not give adequate deference to the Secretary of Agriculture‘s interpretation of the Consolidated Farm and Rural Development Act and noting “the Court of Appeals’ holding runs roughshod over the established proposition that an agency‘s construction of its own regulations is entitled to substantial deference.“); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980) (“Unless demonstrably irrational, Federal Reservе Board staff opinions construing the [Truth in Lending] Act or Regulation [Z] should be dispositive....“).3 It is axiomatic that the Sentencing Commission should also be entitled to the same deference. The Sentencing Commission is similar to any other federal agency to which Congress has delegated specific authority to regulate a particular field based on its given expertise. The Sentencing Commission has expertise in the area of criminal sentencing just as the Securities and Exchange Commission and Federal Trade Commission have expertise in the areas of securities regulation and international trade. The Sentencing Commission‘s interpretation of the Sentencing Guidelines are entitled to deference by this court. See Milhollin, 444 U.S. at 566, 100 S.Ct. at 797 (“The Court has often repeated the general proposition that considerable respect is due ‘the interpretation given [a] statute by the officers or agency charged with its administration....’ This traditional acquiescence in administrative expertise is particularly apt because [the agency] has played a pivotal role in ‘setting [the statutory mechanism] in motion.’ ... Congress delegated broad administrative lawmaking power to the [agency] when it framed [the act]. The Act is best construed by those who gave it substance in promulgating regulations thereunder.“) (internal citations omitted).
The district court in the instant case properly determined that a downward departure was warranted based on the reasoning of the Sentencing Commission embodied in the Cocaine Report. The district court gave “controlling weight” to the determination of the Sentencing Commission concerning a regulation that it is entitled to administer. The administrative deference given to the Sentencing Commission by the district court is consistent with established Supreme Court precedent. See, supra, note 3 and aсcompanying text. I believe that the district court‘s decision to grant Gaines a downward departure based on the sentencing disparity between crack and powder cocaine should be upheld.
I am aware that the position that I am advocating could be viewed by critics as creating sentencing disparity based on the personal view of a particular judge concerning the propriety of the 100:1 ratio and therefore
Naturally, I do not suggest that a court should be permitted to depart whenever it decides that a sentence is greater than necessary to satisfy the purposes set forth in § 3553(a). Such a result would gravely undermine one of the central goals of thе guidelines—restricting the discretion accorded sentencing judges, in the interests of eliminating unwarranted disparity in sentences. But this case is sui generis in the history of the guidelines. Here, the Commission itself has acknowledged that its crack guidelines bear no meaningful relationship to the culpability of defendants sentenced pursuant to them. To my knowledge, the Commission has never before made such an extraordinary mea culpa acknowledging the enormous unfairness of one of its guidelines. For this reason, authorizing departures based on the Special Report could not conceivably start courts down the slippery slope of granting departures every time a defendant claims the guidelines for his type of offense is unfair.
United States v. Anderson, 82 F.3d 436, 449-50 (D.C.Cir.1996) (Wald, J., dissenting), cert. denied, 519 U.S. 956, 117 S.Ct. 375, 136 L.Ed.2d 264 (1996).
Blind adherence to rules that have been proven ineffective, meaningless, and unjust serves no purpose. Not only does such adherence unjustly deprive an individual defendant of his or her liberty, it also deprives the federal courts of their inherent justice. Our current crack cocaine sentencing scheme is unjust. The Sentencing Commission has so acknowledged and now it is time for the federal courts to do the same. I implore my judicial colleagues to acknowledge the admissions of the Cocaine Report and accord it the deference that it deserves. I am not calling for a reduction in the stiffness of our drug sentences, but am only seeking equality in sentencing. “It may profit us very little to win the war on drugs if in the process we lose our soul.” Spade, supra, at 1233 (noting the words of United States District Court Judge William W. Schwarzer as he imposed a mandatory minimum sentence of ten years on a Defendant with no prior criminal record). And once again, courts are forced to engage in a “wink and a nod,” particularly, as the statistics show, the defendants are racial minorities or otherwise socially disfavored. I dissent.
Notes
The court shall impose a sentence [within the Sentencing Guidelines range] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.