United States v. Errol Eugene Washington

Adams, unsupported by a standard invoked case meets

the final outcome reason, I of Adams. For

requirements the Benefits uphold the decision of

would affirming the decision Board

Review the neces- judge, law without

administrative

sity a remand. America, STATES

UNITED

Plaintiff-Appellee, WASHINGTON, Eugene

Errol

Defendant-Appellant.

No. 96-5196. Appeals, States Court of

Sixth Circuit.

Argued March

Decided Oct. Suggestion Rehearing

Rehearing and

En Banc Denied Dec. 1997.*

* Judge grant rehearing would the rea- stated in his Jones sons dissent. Moon, Jr.,

Lawrence W. Asst. Attor- U.S. briefed), ney (argued and Office of the U.S. Nashville, TN, Attorney, Plaintiff-Appel- lee. McNally briefed), T. (argued

Patrick Hollins, Wagster Nashville, Yarbrough, & TN, Defendant-Appellant. Eugene Manchester,

Errol Washington, KY, pro se. JONES, SUHRHEINRICH,

Before: SILER, Judges. Circuit SUHRHEINRICH, J., delivered the court, opinion SILER, J., in which JONES, joined. 518-19), (pp. J. delivered a separate dissenting opinion. SUHRHEINRICH, Judge. Circuit inception Since their the United Sentencing (“Sentencing Guidelines Guidelines”) engendered controversy. have major A source tension has been the 100:1 quantity powder ratio of to crack cocaine (“100:1 ratio”). cocaine The 100:1 ratio given treats an individual who traffics in a quantity of crack cocaine the same as one who traffics in 100 times as much cocaine. The United States Commission”) (“Sentencing Congress engaged ongoing have in an dia- logue regarding propriety dialogue, ratio. of this defendant Eugene Washington, Errol a convicted crack dealer, challenges the 100:1 ratio on case, grounds. various In this constitutional we hold that Commission’s continuing Congress discussion with does not precedent. prior fully-loaded, pistol Circuit Follow- alter Sixth semi-automatic the au- ' again uphold the 100:1 ing precedent, tomobile console. ratio and AFFIRM grand jury A federal indicted all chal- and sentence and Smith for to distribute crack lenges. possession cocaine and with intent to distrib-

ute crack cocaine in violation of 21 U.S.C. I. 841(a)(1), §§ 846 respectively. Washing- ton was also using carrying indicted for 1993, August On Michael Pardue was firearm in drug trafficking relation to a of- by Peay University the Austin Po- arrested 924(c). § in fense violation of 18 U.S.C. Fol- Clarksville, possession in lice Tennessee for lowing by jury, a trial Washington was con- of crack Police cocaine. Clarksville De- victed on all counts.1 partment granted immunity him in exchange in apprehending for Pardue’s assistance de- II. Washington, sup- alleged

fendant Pardue’s plier of narcotics. Pardue disclosed his appeal, issues, . Washington On raises five history Washington criminal with to the au- which we address the order thorities, including multiple purchases of First, Washington trial. claims his Sixth crack cocaine from the defendant. Accord- guarantee jury unanimity Amendment of was Pardue, ing to those transactions occurred in by abridged duplicitous nature of Count cities, Atlanta, including various Chattanoo- Second, II of the indictment. challenges he ga, and Clarksville. always The sales were sufficiency supporting evidence his directly negotiated by Washington, although Third, firearm conviction. he asserts that sometimes Pardue consummated the deal judge the trial in enhancing erred his sen- purchasing the crack cocaine from co-defen- tence for playing leadership role Sylvia dant Smith. Fourth, drug transactions. Washington chal-

The Clarksville Police lenges monitored Pardue’s the Sentencing Guidelines’ treatment subsequent Washington. communication with of crack cocaine violations as unconstitution- August On parking in the Finally, lot of a al. he contends that the trial judge Clarksville hotel under issuing surveillance erred in not departure a downward Department, Clarksville Police ap- sentencing. Pardue proached Washington’s pur- vehicle and approximately chased grams of crack A.

cocaine from the defendant. Clarksville Po- pursued sale, lice Washington following Washington first asserts that Count II of momentarily but he evaded them. Soon the duplicitous, creating jury indictment was thereafter, he was apprehended resulting outside confusion inconsistent verdicts nearby registered hotel room A Smith. violation of Sixth Amendment subsequent search of the guarantee jury rented automobile unanimity.2 We review by Washington driven money revealed the the district court’s decision not to dismiss purchase, Pardue used as well as a II Count of the indictment for abuse of dis- 1. Smith conspiracy was also convicted August, on the In or about ... WASHINGTON acquitted possession count. She was with knowingly intentionally and ... SMITH and, instead, distribute, intent to distribute crack cocaine unlawfully possess did with in- convicted simple of the lesser included offense of quantity tent to distribute ... a of crack co- possession of crack cocaine. Her conviction was caine. unpublished opinion affirmed in an Court. Washington We note that makes this same 95-6099, No. 1996 WL indictment, duplicity challenge to Count I of the (6th Cir.1996) curiam). (per charged Washington which with distribute crack cocaine in violation of 21 U.S.C. challenge, charged Count II of the 846. That indictment first raised defendant's brief, possession reply properly with intent is not to distribute crack before this Court and Perkins, 841(a)(1). cocaine in violation of 21 U.S.C. we decline to It address it. United States v. (6th Cir.1993). read: 841(a)(1). Overmyer, government’s presentation cretion. United States (6th Cir.1990). multiple prove factual scenarios to offense duplici- does render the count sep duplicitous charges indictment A tous, and the district court did not abuse its single offenses within a count. United arate discretion in refusing to dismiss the indict- Duncan, n. 4 ground. ment on that (6th Cir.1988). duplicity “The overall vice of jury general that the cannot verdict argues is nevertheless offense, making finding government’s render its on each it introduction of multiple prove to determine whether a conviction factual difficult scenarios to Count II of the of the offenses or on both.” rests on one indictment the trial specifi court to Furthermore, jury cally cannot on jury convict instruct the on requirement acquit unanimity on another offense respect one offense and with to II. Count The trial Alan charged gave only general in the same count. Charles court a instead instruction Procedure, Wright, unanimity. Federal Practice and on Because not did (1982). Duplicity potentially prej object can general unanimity instruction at trial, sentencing, obtaining udice the defendant our review of the district court’s deci review, appellate protecting give specific and himself sion not to a unanimity instruc jeopardy. plain double Id. tion is to limited error. United States Sanderson, v. 966 F.2d Cir. duplicity argument is 1992). upon government’s presentation based the of multiple prove factual scenarios to II A specific unanimity Count instruction is re existence, quired only The of the indictment.3 mere when one of three situations 1) however, multiple liability of or theories of exists: the nature of the excep evidence is 2) multiple predicates tionally for of complex; factual violation a is there a variance be 3) trial; not the proof statute does render indictment du tween indictment and at or Hixon, plicitous. tangible jury See United States v. 987 there is a indication of confu (6th Cir.1993) (an sion, jury questions indictment as when the has asked of subjects Duncan, under statute which several alterna the court. Ig 850 F.2d at 1114. scenarios, punishment may noring tive acts to the same the first two charge any conjunctively or all jury’s acts without seizes the conviction of both duplicity, government only prove count, need Smith and himself on the alleged prove violation of one the acts to combined with his conviction for the substan statute); possession violation of the tive offense with intent to dis Dean, (6th Cir.1992) (prin simple pos tribute conviction and Smith’s for session, cipal liability liability aiding jury’s for to assert that the verdict is charged in abetting explained same count does not “inconsistent and cannot "be other duplicitous; proscribed by jury applied render count acts than a determination that the statute, disjunctive, may legal stated in According be the incorrect standard.” charged conjunctive in the Washington, allegedly the indict inconsistent ver ment). II of charged tangible jury Count the indictment dict indicates a level of confu offense, only possession requiring specific unanimity one with intent sion instruct distribute cocaine in violation of 18 U.S.C. ion.4 trial, government proof gues possible

3.At offered of two that 72 different charged factual scenarios separate drug involving transactions each defen- were Count under II. August, dant in 1993. Either transaction could 4.Washington argue does not for reversal based provided predicate have conviction un- verdict, solely upon allegedly inconsistent government der Count II. The then perhaps recognizing verdict, logically that a inconsistent alternative theories as to each defendant's in- itself, transaction; does not warrant reversal. volvement in each either distribu- States, tor, distribute, Dunn v. United 284 U.S. possessor simple with intent to Rather, 189, 190-91, (1932). possessor, S.Ct. L.Ed. 356 as well as aider and abettor for each Washington argues only allegedly Combining sepa- that the incon- the above theories. the two transactions, defendants, jury rate sistent verdict indicates level of confusion two and the six each, unanimity requiring specific theories of involvement for defendant ar- instruction. it readily available use or that embol jury’s verdict agree not that the doWe jury during the defendant commission of dened logically inconsistent. this case was underlying conspired with offense. United States have found that Smith could Cir.1991). Christian, cocaine, crack but to distribute the defendant ap Supreme narrowed Bailey, In Court possess intent distrib- with did not herself plication prong of the “use” for conviction August, as Count ute crack 924(c)(1). at -, be reasoning would not under Id. charged. II Such “proximi verdict is The Court the broad Because the logically inconsistent. accessibility adopted by inconsistent, jury ty the level of standard” logically not required unanimity many instead necessary specific federal circuits and for a confusion prove the defendant “ac present. Accordingly, government is not instruction tively employed” in relation to plain error the firearm court did commit district underlying offense in order jury general una- substantive charging the Duncan, prong of the be convicted under the use nimity instruction. Bailey, govern (only general instruction statute. 1113-14 concedes that more for convic- ment when two or factual bases prong of specific count of be sustained under the “use” tion contained within cannot are 924(c)(1). contends, indictment). how ever, the at trial that evidence supports Washington’s under the B. the “carry” prong of statute. Washington’s the next claim is that at to Bailey, adduced trial was insufficient evidence has had nu Since this Court support using carrying his conviction or applicability occasions to the merous address 924(c)(1). drug-trafficking firearm in furtherance of a carry prong § of the of United 924(c)(1). (6th Allen, § re Cir.1997); offense under 18 We U.S.C. 106 v. F.3d 695 States (6th Washington’s challenge the sufficien view to Taylor, v. 102 F.3d 767 Moore, cy light Cir.1996); the evidence most favorable the 76 F.3d (6th government. Virginia, Cir.1996); v. 443 to the Jackson 111 United States v. Riascos- 2781, 2789, Suarez, Cir.), 99 61 L.Ed.2d U.S. S.Ct. de 73 F.3d 616 cert. - (1979). “any nied, -, 560 We must affirm if rational 136 U.S. (1996). cases, fact could the essential trier of have found 84 these the L.Ed.2d Under proven beyond of the prove elements offense must more than mere government reasonable doubt.” Id. transportation of in relation to the firearm underlying support to a convic offense 924(c)(1) “[w]hoever, provides Section 924(c). § “carry” prong tion under during any and in relation of vio- crime (1) “immediate must show: drug ... trafficking lence or crime uses availability physical transportation” of firearm, shall, carries a addition by the in relation the firearm defendant provided punishment crime ... be for such Moore, trafficking drug offense. F.3d imprisonment sentenced five ” (clarifying holding in Riascos-Sua 924(c)(1). years.... § 18 U.S.C. Because rez). at 769 Taylor, See also disjunctive, the statute is written in (same). proven requirements Both must be 924(e)(1) defendant can be convicted under sustain under in order to a conviction if he either uses or carries a firearm carry prong Taylor, statute. F.3d Bailey a drug-trafficking relation to offense. (firearm “immediately ac must be — States, -, -, U.S. cessible” to defendant and defendant must (1995) (fire- 501, 507, 133 S.Ct. L.Ed.2d process of firearm “in transporting be being arm can be used without carried crime”) (citing drug trafficking to a relation versa). however, Bailey, Prior this vice added). 113) Moore, (emphasis essentially collapsed Court had this distinc- tion, adopting interpretation Relying upon Sixth Circuit broad these recent cases, jury language requiring gov- Washington “uses or contends that carries” prove weapon handgun only ernment to that the was “could conclude that the was [not] Alexander, drug available for immediate use” when the Cir.1995) place. disagree. took We firearm omitted). sale (quotations and citations was discovered in the automobile console of reviewing determination, In give due easily vehicle. rented This ac- deference to the district application court’s placed weapon cessible location within the facts to the Sentencing Guidelines. ’ immediately reach and available for Wash- After reviewing the trial transcript, we use, ington’s satisfying thus the immediate hold that the district court did not err in availability physical transportation ele- concluding that Washington played a leader- carry prong ment for conviction under the ship role in the distribution of narcotics. 924(c)(1). Riascos-Suarez, at 623. Testimony indicated that always element, Regarding the second “in relation negotiated sales, drug and that he often offense, drug trafficking govern- to” a courier, used codefendant Smith as his refer- testimony ap- ment introduced Pardue ring to Smith girl” as “his informing when proached Washington’s with vehicle marked Pardue that she would drugs deliver the money and then returned the crack him. testimony, of this the district money. cocaine absent We find that court did not commit clear in enhancing error because the firearm was located the auto- sentence under 3B1.1 for ex- transaction, during mobile console “a ercising a leadership drug role trans- juror reasonable ... could ... conclude actions. gun being transported that the was during and in relation to sale of th[e narcotics].” D. Taylor, 102 at 771. No reasonable doubt exists that carried the Having disposed of Washington’s chal- during firearm relation to a lenges indictment, to his the sufficiency of trafficking Accordingly, offense. we decline him, the evidence and his sentencing 924(c)(1) § Washington’s to vacate convic- enhancement, now Washington’s we reach tion.5 final arguments. two Each stems from the § ratio contained 2D1.1. U.S.S.G.

C. (1) Washington contends that the 100:1ratio: objects provides also to ground the dis a departure for downward trict court’s 5K2.0;7 determination that he sentencing § exercised under U.S.S.G. leadership role in the transactions. is unconstitutional. That determination resulted an enhance

ment Washington’s sentence under 1. § U.S.S.G. 3B1.1.6 Washington argued sentencing

“A district court’s determination that his substantially “offense level should be regarding a defendant’s role in the offense is reduced sentencing] as result of th[e dis only clearly reversible if parity erroneous.” United between cocaine and ‘crack’ 3Bl.l(c) 5.We Washington’s further note that provides may 6. Section that the court conspiracy by to distribute cocaine under 21 enhance the offense level two "[i]f the defen- leader, organizer, § provide predicate manager, dant was U.S.C. 846 could an or also su- pervisor any activity....” criminal substantive U.S. Sen- offense for his conviction under 3Bl.l(c) (1995). Riascos-Suarez, tencing § 924(c)(1). Guidelines Manual (af § 73 F.3d at 624 firming plea defendant's Alford to a count of 924(c)(1) Section 5K2.0 reads: violating carrying § firearm "in drug trafficking conspira relation to the crime of sentencing may impose [T]he court a sentence cy possess cocaine"). with intent to distribute range by applicable outside the established drugs Given sale of to Pardue in guideline, if the court finds "that there exists lot, parking presence of the cash-in his aggravating mitigating an kind, or circumstance of a automobile, rented and the hotel room located degree, adequately or ato taken into nearby, no reasonable doubt remains that Wash by consideration ington gun also carried the in relation to his formulating guidelines that should result criminal to distribute crack cocaine. in a sentence that different from described.” 3553(b)). § (quoting U.S.S.G. 5K2.0 18 U.S.C. 516 reject- grant previously court refused to This court has heard

cocaine.” district challenge Washington each constitutional departure ed Washington a downward based presents to the 100:1 ratio. United States v. upon the 100:1 ratio. asserts (6th Cir.1996) Smith, 1414, 73 F.3d 1419 erroneously court concluded the district (Jones, J., concurring) (cataloguing Sixth Cir- authority grant it such a lacked rejecting challenges cuit cases constitutional departure while the downward ratio). Pickett, to 100:1 In United States v. merely court contends' that the district exer- (6th Cir.1991), 411 we held that the refusing depart its cised discretion 100:1 ratio does not violate the substantive downward. component of the Due Process or the Clause underlying We need not address ratio Cruel and Unusual Punishment Clause of the depart nale for the district court’s refusal to Eighth Amendment. Id. at 418-19. Like- Regardless downward this case. of wise, Williams, in United States v. premised upon was whether this refusal (6th Cir.1992), rejected we an authority depart' court’s lack of district equal protection challenge to the ratio downward under Guidelines brought under the Fifth Amendment. ratio, upon based the 100:1 see United States Levy, Herron, Cir.1996), Cir.1990), we a claim that the — denied, U.S. -, 998, 136 cert. unconstitutionally term cocaine base was (1997) (100:1 Williams, ratio “not a vague. L.Ed.2d basis In both Pickett and may rely depart applied which a court down in upholding rational basis test 5K2.0”), Pickett, merely ward under the 100:1 ratio. 941 F.2d at USSG dis (Congress so, arbitrarily did not act cretionary refusal to do see or irration- (6th Cir.1993) (dis ratio); Williams, Isom, ally enacting 962 F.2d at (ratio reasonably legitimate related to cretionary by grant refusal district court to end). reasoning holdings of these departure downward under U.S.S.G. 5K2.0 any argument cases foreclose constitutional Court), is unreviewable this decision Washington may present. See Sixth Circuit was not erroneous. Operating

Internal Procedures 22.4.1 (June 1991) (panel cannot overrule deci- prior panel); sion of 73 F.3d at 1418. challenge pres final precedents, Washing- Undaunted these ents a question constitutional for our review. urges panel prior ton this to revisit our de- He 100:1 contends the ratio violates the light continuing dialogue cisions in of the Equal Due Process and Protection Clauses of Congress Sentencing between and the Com- Amendments, the Fifth and Fourteenth as spurred by report book-length mission well as the Cruel and Unusual Punishment Sentencing submitted the Commission to Eighth Clause of the Washing Amendment. Congress February of 1995. United differing ton also interpreta maintains that Commission, Sentencing Special Re- tions of the term “cocaine base” render the port Congress: to the Cocaine and Federal Sentencing unconstitutionally (1995) Guidelines Sentencing Policy [hereinafter Co- vague. challenges These constitutional Report Report caine ac- ]. Cocaine present questions sentence of knowledged possible greater the harms to law over which we exercise de novo society poses review. which crack cocaine versus Knipp, 843 powder Sentencing cocaine.8 The Commis- (6th Cir.1992). sion also noted the 100:1 ratio “is a violence; 8. Sentencing systemic The factors cited the Commis- crack cocaine and and tween (4) greater danger society sion as indicative the increasing young people the number of in- poses powder that crack cocaine versus cocaine at volved in its distribution of crack cocaine. Id. (1) possible greater psychological are: the risk of 195. The Commission noted that these factors cocaine; powder addiction to crack cocaine than "policymaker could lead a infer that crack [to] may the fact that crack cocaine be sold inex- poses greater society harms to than does pensively potent quantities more than powder cocaine.” Id. cocaine; (3) powder higher the correlation be- Washington’s argument, although disparity be- growing cause of primary creative, light prior precedent. fails in of our White feder- for Black and tween sentences Washington’s posi In order to find merit defendants,” and, despite crack id. at al tion, panel be to revisit would harms, that the ev- found potential cocaine’s prior prece rationales behind our circuit approach the crack cocaine “do ils of “This, upholding the 100:1 ratio. we dents ratio.” Id. quantity level of 100-to-l are forbidden to do.” 73 F.3d at result, Sentencing Commis- xiv. As Circuit, 1418.9 In the Sixth as well as all recommended strongly sion circuits, panel other federal one cannot over ratio. Id. 100:1 prior panel’s published rule decision. Sixth Sentencing May Commis- Operating On Internal Circuit Procedure (June propose 12,1991). an amendment to prior 4-3 to sion voted 22.4.1 “The decision authority in replacing controlling the 100:1 ratio favor remains unless an Congress Sentencing consistent decision of the United States Su a 1:1 ratio. Amendments requires Courts, preme Court modification of the for the United States Guidelines sitting over decision or this Court en banc 10,1995). (May Absent Con- Fed.Reg. 25074 prior Secretary rules the decision.” Salmi action, would this amendment gressional Servs., Human Health and on November have taken effect (6th Cir.1985). presents This case no 994(p) (specifying also 28 U.S.C. See Supreme has not such situation. Court however, process). Congress, amendment Congress’s 100:1 ratio since addressed the in- rejected proposed amendment amendment, rejection proposed of the Sentencing stead directed issue, has not ruled en banc on the Court “revision of the propose an alternate Treatment of the law remains unaltered. cocaine to quantity ratio of crack Sentencing crack cocaine offenders under 104-38, No. 109 Stat. cocaine.” Pub.L. unchanged we Guidelines remains since ad (October 30,1995). every dressed and each and consti challenges rely presents constitutional challenge Washington tutional Report heavily upon the and Con- the 100:1ratio. Cocaine reject gress’s decision to prior precedent our and our Based proposed elimination of Commission’s decision, inability prior panel’s to overrule acknowledges prior case- ratio. our 100:1 He reject Washington’s constitutional chal we law, pro- longer no contends those cases but so, doing lenges to the 100:1 ratio. precedential Congress’s because vide value all our decision is consistent with note that amendment, rejection proposed of the the consti other circuits that have addressed explicit Commission’s following publi tutionality of the 100:1 ratio impact of racially disparate recognition of the Report Congress’s cation of the Cocaine ratio, adopt requires rejection proposed this Court amendment. Unit basis, Jackson, than rational scrutiny, rather ed States v. strict — Cir.), denied, U.S. -, 117 cert. S.Ct. review. Smith, (6th only difference between Smith and this 1414 The United States v. In 1996), nearly rejected argument Report publication an identi- of the Cocaine Cir. case is the and Washington’s. appellant The in Smith reject Sentencing cal to argued Congress’s decision to prior precedent Circuit no that Sixth proposed Neither Commission's amendment. longer applied light evi- "in of new scientific prior in action allows us to review our decisions meaningful suggests dence which that there is no Salmi, (intervening 774 F.2d at 689 this area. powder between crack cocaine and distinction Supreme precedent or en banc review Court panel Id. at 1417. The in Smith cocaine.” decision). prior panel's See to overrule soundly rejected argument and instead re- that Welch, 142, (6th v. 154 also United States prior precedent upon Sixth Circuit in refus- lied Cir.1996) post- (relying upon reject, Salmi to ing appellant's to address constitutional chal- challenge Report, a defendant’s Cocaine lenges Id. at 1417-18. The to the 100:1 ratio. ra- Sentencing the 100:1 Guidelines based panel noted that this "new evidence” in Smith tio). panels’ prior deci- not allow for review of did sions. Id. 518 (1996) (“We conclu- Sentencing Commission has

445, do not 341 136 L.Ed.2d is sively the issue of whether there addressed report, or Con Commission’s agree that the justification penalties for harsher for crack it, reject prece affects gress’s decision cocaine, policy that powder than for ruling Congress had our that dential value of more practice has treated African-Americans ratio.”); 100:1 United basis for the a rational whites, this severely than and has answered (8th 1196, Carter, 1198-99 States v. Sentencing negative. in the question Cir.1996) not act with discrimi (Congress did recently conclusions have been Commission’s Sentencing rejecting Com natory purpose President, Attorney adopted by the Gen- amendment; instead, the proposed mission’s Barry McCaffrey, Director eral and General rationally legiti to a rejection was related Drug Policy.1 of National purpose); United States v. mate (2d 81, Cir.1996), 85 cert. Teague, 93 F.3d developments, of light of these recent — -, 708, denied, 117 S.Ct. 136 U.S. taken, I judicial which notice should be must (1997) (“The 100:1 ratio had L.Ed.2d 629 Sentencing again emphasize that because the enacted, and the Com rational basis when analogous agency to a federal Commission is ap continuing of the mission’s consideration accorded the it is entitled to the deference propriate sentencing scheme for crack and agency’s It is well settled that an same. ju counsels cocaine offenses interpretation regulations own receives of its intervention.”); Bur dicial “controlling weight” unless it would violate 849, Cir.1996), gos, F.3d 877 cert. 94 statute, or a federal or is Constitution — denied, -, 137 U.S. regulation. with the inconsistent See Stin (1997) (upholding the 100:1ratio L.Ed.2d States, son v. United 508 U.S. against equal protection challenge 1913, 1919, S.Ct. 123 L.Ed.2d 598 rejection proposed Congress’s amend (“[pjrovided agency’s interpretation an of its ment). regulations own does not violate the Consti statute, given tution it must be federal reasons, foregoing For the the decision ‘controlling weight plainly unless it is errone the district court is AFFIRMED. ” regulation.’ ous or inconsistent with the v. Rock quoting Bowles Seminole & Sand JONES, Judge, concurring part Circuit Co., 1215, 1217, U.S. S.Ct. dissenting part. and (1945)). Thus, L.Ed. 1700 complete rejection Commission’s join opinion I I of the court section instance, is, in to “control ratio entitled 11(C). 11(A),11(B), sections Howev- ling weight.” As I noted in United States v. separately again I I er write because once Gaines, clearly this remains consistent obligated express my feel concerns re- history uphold Supreme long Court’s garding sentencing the 100:1 ratio for crack interpretation ing agency’s an of its own (“100:1 ratio”) powdered that See, Gaines, rules. statutory still exists both law and the (6th Cir.1997). regret I recognize I Guidelines. majority necessary depart feels it is variety court has of constitutional principle from this basic of administrative ratio, challenges to the 100:1 but I still be- law. judges longer lieve that we as should “no Moreover, experience proof remain wedded to that which as of the racial unfairness mount, the present shows is neither rational nor fair.” law continues to makers, apparent policy which ease Cir.1996) (Jones, J., concurring). judicial system, even the are able to disre- 3, 1997, July Attorney eye 1. ... to the corrosive "[w]e On General Janet Reno cannot turn a blind Barry McCaffrey, and General Director of Na- ... the effective [law] effect this has had on Drug Policy, reviewing tional ing after the Sentenc- July justice." Id. On administration Report, adopted Commission's Cocaine its acceptance of their the President announced his recommendations and forwarded their conclu- Times, July L.A. 1997 at conclusions. See Times, July sions President. See N.Y. A24. so, doing they 1997 at Al. In cautioned by perpetuated gard the racial discrimination recognized the Sentenc- and now

this law Commission, Attorney General

ing President, disturbing. is indeed up made example, African-Americans offenders, while a of crack

85.8% federal offenders were of white

mere 4.8% cocaine. United States for crack

prosecuted Commission, 1996 Sourcebook (1997). Sentencing Siatistics Federal disappear sim- disparity will not

This racial it; rather, the recommenda-

ply by ignoring should Sentencing

tions of the with the ad- by those entrusted

be heeded urge I entire laws.

ministration of our and accord this case en banc

court to hear to the conclusions of requisite deference found in the Co- Sentencing Commission Report.

caine reiterate, am not call- again that I

I must in the stiffness

ing for a reduction

crimes, sentencing. equality but seek plague our drugs continue to recognize

I of law fully support the efforts

society and Nevertheless, its use.

enforcement reduce that, fact as the Sentenc- ignore

I cannot exist, currently the sentences

ing Guidelines “justice” are not down courts

handed to rules that have

just. “Blind adherence ineffective, unjust, meaningless and

proven purpose.” States v. no useful

serves

Gaines, 122 TINKER, Plaintiff-Appellant,

Robert CO.,

SEARS, & ROEBUCK

Defendant-Appellee.

No. 96-1418. Appeals, Court of

Sixth Circuit.

Argued June 14, 1997.

Decided Oct.

Case Details

Case Name: United States v. Errol Eugene Washington

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 4, 1997

Citation: 127 F.3d 510

Docket Number: 19-3918

Court Abbreviation: 6th Cir.