OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on Defendant Robert Shull’s resentencing. A jury found Shull guilty on a two-count indictment. Count One was conspiracy to possess with intent to distribute over 50 grams of cocaine base in violation of 21 U.S.C. § 846, and Count Two was possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii). Shull appealed. The Court of Appeals reversed
II. BACKGROUND
A. THE OFFENSE
The evidence at trial showed that on January 20, 2007, Columbus police officers were conducting patrol while parked in a carwash parking lot. Late in the afternoon, a car with two African American men drove into the lot, and one of the officers recognized the man in the passenger seat as Robert Shull. The officer knew that he had an outstanding warrant for driving without a license. When Shull exited the vehicle along with the car’s driver, the officers arrested him for the outstanding warrant. The officers then noticed a baggie that they suspected contained marijuana on top of the center console in the car, and they arrested the driver. The vehicle was later searched, and one small baggie and two large baggies containing crack cocaine were recovered. The crack was determined to weigh 52.9 grams.
After the jury found Shull guilty, this Court sentenced him to a term of 121 months on Counts One and Two with the sentences to run concurrently. Shull appealed, and the Sixth Circuit reversed his conviction on Count One, the conspiracy count. It affirmed his conviction on Count Two. The court held that because the two counts were grouped together for sentencing, Shull had to be resentenced. It vacated the sentence and remanded the case to this Court for resentencing.
United States v. Shull,
B. A BRIEF HISTORY OF CRACK COCAINE SENTENCING
The history of unfairness in crack cocaine sentencing is well known, but the inaccuracies it was based on and the injustices it caused make its retelling all the more necessary. During the 1980s, public concern surrounding drug abuse rose dramatically. See David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L.Rev. 1283, 1286 (1995). As drug use was transformed from the typical social problem into a full-blown national crisis, crack was identified as society’s most dangerous scourge. Increased inner-city and gang violence were blamed on the recently discovered drug, and allegations swirled that “crack babies” and child neglect were due to crack’s potent addictive qualities. See Nekima Levy — Pounds, Can These Bones Live? A Look at the Impacts of the War on Drugs on Poor African — American Children and Families, 7 Hastings Race & Poverty L.J. 353, 356 (2010). When basketball player Len Bias overdosed on powder cocaine two days after being selected by the Boston Celtics as the second overall pick in the 1986 NBA Draft, many mistakenly believed his death to be the result of crack cocaine. His death sparked a media frenzy, and demands arose for harsh penalties and tough sentences. Id. at 356-57.
1. The Anti-Drug Abuse Acts of 1986 and 1988
Congress responded immediately with the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207 (1986). Believing that crack was more addictive and potent than powder cocaine, spread rapidly due to its cheap costs, was closely connected to crime and violence, triggered perilous physiological effects, and was attractive for use and sale by youth, Congress enacted mandatory minimum sentences for drug trafficking offenses that were based on an 100:1 ratio between the weights of crack and powder cocaine.
1
See
United States
Under the federal statute, while five-hundred grams of powder triggered a five-year mandatory minimum, merely five grams of crack carried the same sentence. Five-thousand grams of powder, but only fifty grams of crack, led to at least ten years of incarceration. To put this into perspective, five grams is about the weight of a typical sugar packet (or 10 to 50 doses); five-hundred grams is more than two cups (or 2500 to 5000 doses). See 1995 Report at ix.
Prior convictions for drug offenses (including marijuana) would increase the mandatory mínimums. Possession of five grams of crack with one prior drug conviction doubled the mandatory minimum to ten years. Possession of fifty grams of crack with one prior drug conviction doubled it to twenty years. And possession of fifty grams of crack with two prior drug convictions carried a mandatory sentence of life in prison without the possibility of parole. In practice, the sentences that resulted from the 1986 Act were no less absurd: a street-level dealer of crack cocaine received the same average sentence as an importer or high-level supplier of powder cocaine. See 2002 Report at 43.
Two years later, Congress passed the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181 (1998), which further emphasized the alleged harmfulness of crack cocaine in comparison to both powder cocaine and other drugs. This Act created a mandatory minimum penalty for the simple possession of crack cocaine: possession of more than five grams of cocaine triggered a minimum five-year sentence. This law made crack cocaine the
2. The War on Drugs
The 1986 and 1988 Acts were part of a more comprehensive “War on Drugs,” which began in 1971 and accelerated in the mid-1980s. As part of this campaign, federal and state officials amended sentencing policies, adopted “tough on crime” legislation, and introduced harsh mandatory mínimums.
See
Michelle Alexander,
The New Jim Crow: Mass Incarceration in the Age of Colorblindness
11, 47-57 (2010); Marc Mauer,
Why Are Tough on Crime Policies So Popular?,
11 Stan. L. & Pol’y Rev. 9,10 (1999). Concomitant with the ratcheting up of penalties for drug offenders, Congress limited judicial discretion in sentencing. The confluence of these two trends has resulted in massive growth in incarceration that bears little correlation to crime rates.
See
Slansky at 1285;
United States v. Bannister,
Over the past thirty years, the adult prison population in the United States has skyrocketed from around 300,000 to 2.3 million — it is now the largest prison population in the world. The Pew Center on the States,
One in 100: Behind Bars in America
5 (2008),
available at
http://www. pewcenteronthestates.org/uploadedFiles/ 8015PCTS — Prison08—FINAL—2—1— 1 — FORWEB.pdf. This increase — in both State and Federal prisons — is mostly due to the rise of imprisoned drug offenders.
See
Alexander at 6. In Federal prisons, the population of drug offenders has risen from 4,749 to over 100,000 — from a quarter to more than half of all federal inmates.
3
Heather C. West, et al., Bureau of Justice Stat., U.S. Dep’t of Justice,
Prisoners in 2009
33 (2010),
available at
http://bjs.ojp. usdoj ,gov/content/pub/pdf/p09.pdf; Bureau of Justice Stat., U.S. Dep’t of Justice,
Sourcebook of Criminal Justice Statistics
519 (2003),
available at
http://bjs.ojp.usdoj. gov/index.cfm?ty=pbdetail&iid=1219. Not only are there more drug offenders in our prisons, but they are spending more time there: on average, drug trafficking offenders serve longer federal sentences (seventy-eight months) than federal offenders convicted of manslaughter (sixty-seven months), arson (fifty-eight months), and assault (thirty-seven months). Bureau of Justice Stat., U.S. Dep’t of Justice,
Source-book of Criminal Justice Statistics,
Table 5.31.2009 (2009),
available at
http://www. albany.edu/sourcebook/pdf/t5312010.pdf.
If the current pace continues, one in three black men will go to prison at some point in their lives.
See
Thomas P. Bonczar, Bureau of Justice Stat., U.S. Dep’t of Justice,
Prevalence of Imprisonment in the U.S. Population, 1971-2001
8 (2003). This percentage can be traced to the War on Drugs’ subjection of African Americans to high sentences and incarceration rates, neither of which can be explained by the realities of drug abuse. Since the 100:1 ratio was enacted, the vast majority of those convicted of crack offenses — approximately 85% — have been black.
Kimbrough v. United States,
Notably, conviction rates are disproportionate to actual usage rates: government studies repeatedly show that more whites use and sell crack than blacks.
See
U.S. Department of Health and Human Services,
2009 National Survey on Drug Use and Health,
Table 1.34A: Crack Use By Demographic Characteristics (2009); U.S. Department of Health and Human Services,
2003 National Survey on Drug Use and Health,
Tables 1.43A and 1.43B: Crack Use By Demographic Characteristics (2003);
see also
H. Rep. No. 111-670, at 2-4 (stating that government data indicates that two-thirds of crack cocaine users in the U.S. are white or Hispanic); Dorothy Lockwood, Anne E. Pottieger, & James A. Inciardi,
Crack Use, Crime by Crack Users, and Ethnicity, in
Ethnicity, Race, and Crime 21 (Darnell F. Hawkins ed., 1995) (noting that as individuals generally buy drugs from people who share their racial or ethnic background, there are likely more whites selling crack than blacks). In 1993, for example, 65% of the people who had used crack were white, but whites amounted to only 4% of federal offenders convicted of crack trafficking.
United States v. Armstrong,
The harsh impact of the Guidelines and mandatory minimums has not gone unno
3. The Push for Reform
The 100:1 ratio has sent hundreds of thousands to jail for far too long, provoked outrage over its disparate racial impact, and cost the nation billions. Quite frankly, there is no justification for these results. Twenty-five years after it was established, it is clear that the factual premises underlying this disparity were wrong from the very beginning. Current scientific evidence suggests that there is no inherent difference between the addictiveness of crack and powder cocaine; the variation lies in how the drug is ingested.
4
See
Not only has the 100:1 ratio proved to be unjustifiable, it has failed to accomplish its major goal: stopping drug traffickers.
See
Marc Mauer & Ryan King,
A 25 Year Quagmire: The War on Drugs and Its Impact on American Society
14 (2007). Most of those incarcerated for crack offenses are not the high-level traffickers who import and manage the distribution of drugs throughout the country, but street-level dealers, couriers/mules, or lookouts.
See
2002
Report
at 38 and fig. 5 (stating that in 2000, 66.5% of crack offenders were street-level dealers, 2.4% were couriers or mules, and 8.8% were lookouts). Even as more men and women are sent to prison, crack prices have fallen, indicating that the supply is growing and the harsh sentences are not targeting the true power players in the game.
5
See
Mark Osler,
The slow fade of Len Bias’ ghost,
Dallas Morning News, July 29, 2010,
available at
http://www. dallasnews.com/opinion/latest-columns/
This information has been well known for many years, but the pace of reform has been excruciatingly slow. The Sentencing Commission published four reports on the crack/powder issue, each of which systematically explained why the initial justifications for the law were incorrect and strongly urged that Congress reduce the 100:1 ratio. In 2007, the Commission reduced the ratio under the Guidelines from 100:1 to between 25:1 and 80:1.
See Kimbrough,
4. The Fair Sentencing Act of 2010
Finally, Congress acted. On October 15, 2009, Senator Richard J. Durbin introduced the Fair Sentencing Act (“FSA”). “[W]e have learned a great deal in the last 20 years,” he said. “We now know the assumptions that led us to create this disparity were wrong.” 155 Cong. Rec. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Durbin introducing S. 1789). The Act proposed to eliminate the crack/powder disparity and establish a 1:1 sentencing ratio. See 155 Cong. Rec. S10488-01 (daily ed. Oct 15, 2009). Senators and Representatives urged that is passage was necessary to correct future sentencings. See 155 Cong. Rec. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Durbin) (“African Americans are incarcerated at nearly six times the rate of White Americans. These are issues of fundamental human rights and justice our country must face.... [T]his legislation is about fixing an unjust law that has taken a great human toll.”); id. (statement of Sen. Sessions) (“I have offered legislation for almost a decade that would substantially improve the sentencing process in a way that I think is fair and constructive.... I do think it is past time to act.”); 156 Cong. Rec. H6196 (daily ed. July 29, 2010) (statement of Rep. Clyburn) (“Twenty years of experience has taught us that many of our initial beliefs were wrong. We now know that there’s little or no pharmacological distinction between crack cocaine and powder cocaine.”). It had the support of the Sentencing Commission, which had repeatedly called for drastic reductions in the ratio, and the Department of Justice, which supported the complete elimination of the disparity. See Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the Subcomm. on Crimes and Drugs of the S. Comm, on the Judiciary, 111th Cong. 1, 10 (2009) (Statement of Lanny A. Breuer, Assistant Attorney Gen. of the Criminal Division, United States Department of Justice) (“The Administration believes Congress’s goals should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”).
The resulting Fair Sentencing Act of 2010, however, established an 18:1 craekto-powder ratio. Although the House Judiciary Committee voted to send the 1:1 ratio to the full House, the Senate Judiciary Committee realized that it could not garner the votes. It sent a compromise bill with an 18:1 ratio and increased penal
III. LAW AND ANALYSIS
The main issue before the Court is whether the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed an offense before the FSA was enacted, but who are sentenced after. The FSA replaced the triggers for the mandatory minimum punishments in crack cocaine offenses. Previously, the ratio between crack and powder had been 100:1; quantities of five and fifty grams of crack led to mandatory mínimums of five and ten years, respectively. Under the FSA, the ratio was lowered to 18:1. Thus the triggers are now twenty-eight and two-hundred-eighty grams. The thresholds for powder cocaine remain at five-hundred and five-thousand grams. See 21 U.S.C. § 841(b)(l)(A)(ii) (powder cocaine), (b)(l)(A)(ii) (crack cocaine), (b)(l)(B)(ii) (power cocaine), (b)(l)(B)(iii) (crack cocaine).
In addition, the FSA directed the Sentencing Commission to adopt guidelines on an emergency basis that conformed to the FSA. See FSA § 8. The new guidelines took effect on November 1, 2010. See United States Sentencing Commission, Supplement to the 2010 Guidelines Manual, Supplement to the 2010 Supplement to Appendix C, Amendment 748 (Nov. 1, 2010).
As Shull has yet to be sentenced, the Court is presented with two questions. First, whether the new Guidelines apply, and second, whether, by implication or otherwise, the FSA’s new mandatory minimums apply as well.
The government argues that
United States v. Carradine,
A. AMENDED GUIDELINES
The question as to whether the amended guidelines apply is an easy one. The Sentencing Reform Act of 1984 expressly states that the applicable Guidelines are those in effect at the time of the defendant’s sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). Thus, a sentencing court will apply the Guidelines in force at sentencing unless they raise
ex post facto
problems.
United States v. Lanham,
Per Congress’s directive, the amended Guidelines came into effect approximately eight months ago, on November 1, 2010. In the FSA, Congress explicitly ordered the Sentencing Commission to draft Guidelines that conformed to the new 18:1 ratio as soon as practicable or within 90 days of the statute’s enactment. This immediacy was necessary so that the Guidelines were consistent with “applicable law,” i.e., the new mandatory mínimums. FSA § 8. Thus, consistent with Sixth Circuit precedent, the Guidelines provisions of the FSA have been in effect since their effective date of November 1, 2010. As these Guidelines ameliorate the punishments for crack cocaine offenses, they raise no
ex post facto
issues. Accordingly, there is no bar to their application to pending cases.
See United States v. Douglas,
B. MANDATORY MINIMUMS
The next issue is whether the mandatory mínimums in the FSA apply to Shull. An analysis of the text and purpose of the statute, as well as the Saving Statute, reveals that Congress intended for the FSA to apply to all pending cases.
1. Text, Structure, and Context
In order to determine if Congress intended for a statute to apply to pending cases, traditional principles of statutory construction apply. These include examining the explicit language of the statute and the context of the statute as a whole.
See Lindh v. Murphy,
As the text and structure of the FSA clearly direct that it should apply immediately, it is not necessary to consider the legislative history. A review of the Senate and House records, however, reinforces Congress’s push for urgency in sentencing reform. Members of both houses repeatedly stated that the purpose of the FSA was to remedy past injustices and ensure fairer sentencing in the future. See, supra, II. B.4. The lead sponsors of the FSA stressed the necessity of its immediate application to pending sentencings in a letter to the Attorney General dated November 17, 2010, writing: “we ... urge you to apply [the FSA’s] modified mandatory mínimums to all defendant’s who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.” Letter from Senators Dick Durbin and Patrick J. Leahy to Attorney General Eric Holder, November 17, 2010. In sum, the language and history of the FSA show that Congress’s intent was to put the amended Guidelines and mandatory mínimums in effect as soon as possible.
2. The Saving Statute
The FSA does not expressly address whether it applies to pending cases. Due to the absence of this explicit language, the government argues that the Saving Statute, 1 U.S.C. § 109, “saves” the old mandatory mínimums and prohibits the application of the FSA’s mandatory mínimums to Shull. A thorough review of the history, language, and purpose of this stat
In 1870, a seaman known as Tynen was charged with using a forged certificate of citizenship, in violation of “the Act of 1813.”
United States v. Tynen,
Congress responded with the enactment of its first Saving Statute, c. 71, 16 Stat. 432 (1871).
See Warden, Lewisburg Penitentiary v. Marrero,
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
1 U.S.C. § 109 (1947).
The Supreme Court has said that the Saving Statute should not be given effect if contrary legislative intent exists. In other words, the Statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.”
Great No. Ry. Co. v. United States,
3. Application of the Saving Statute to the FSA
Applying this standard to the case
sub judice,
it is clear that the Saving Statute does not foreclose the application of
The application of the FSA to pending cases is consistent with the purpose of the Saving Statute, which was not intended to hinder the application of ameliorative sentencing amendments, but to prevent “technical” abatements such as those involving seaman Tynen.
See Hamm v. Rock Hill,
The government relies on
Marrero
to argue that the Saving Statute should apply. In that case, the Supreme Court addressed the retroactivity of a statute that created parole eligibility for serious drug offenders, overturning a prior statute that rendered them ineligible. The Court held that the new statute’s own saving clause barred the application of that statute to the defendant, and thus he could not benefit-from the new penalties.
Finally, it is generally understood that an earlier Congress cannot bind a later Congress. The Saving Statute cannot be read in such a way that it allows the technical requirements of an earlier Congress to restrict the acts of a subsequent Congress. To insist on express statements, as the government urges, would require Congress to use the “magical passwords” that the Supreme Court has repeatedly decried and threaten to frustrate legislative will.
See Lockhart,
In passing the FSA, Congress began to correct the failures of the Anti-Drug Abuse Act of 1986. It acknowledged that the premise of the 1986 Act was factually flawed and its impact racially skewed. The government argues that this Court should continue to apply these misguided mandatory mínimums even after Congress has recognized their injustice. As set forth above, principles of law, reason, and fairness render this a position that the Court cannot accept. Congress has identified a remedy. The President has signed it into law. This Court will apply the Fair Sentencing Act, both its amended Guidelines and mandatory mínimums, to Robert Shull.
IV. THE SENTENCE
Having determined that the FSA applies, the Court will now turn to the sentence it intends to impose. In
United States v. Booker,
A. GUIDELINES CALCULATION AND APPLICABLE MANDATORY MINIMUM
The probation officer determined that if the FSA applies, Shull’s criminal history category is III, and the offense level is 26. U.S.S.G. § 2D1.1(c)(J). Inasmuch as the Court finds that the FSA does apply, it will utilize these calculations. The Guidelines imprisonment range for the combination of criminal history category III and offense level 26 is 78 to 97 months. Under the FSA, the mandatory minimum in this case is sixty months. FSA § 2; 18 U.S.C. § 841(a)(1) and (b)(1)(a)(iii).
B. SECTION 3553(A) FACTORS
The basic mandate of § 3553(a) requires a district court to impose a sentence that is “sufficient, but not greater than necessary” to comply with the four purposes of sentencing set forth in § 3553: retribution (“to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”), deterrence (“to afford adequate deterrence to criminal conduct”), incapacitation (“to protect the public from further crimes of the defendant”), and rehabilitation (“to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”). 18 U.S.C. § 3553(a)(2). These four principles can be traced back to historical theories of punishment, and serve as the guiding values and goals in sentencing. Thus, this “parsimony provision” functions as a theoretical
In determining whether a sentence is sufficient, but not greater than necessary, the Court must consider the five factors set forth in § 3553(a): (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, provide just punishment, and deter criminal conduct; (3) the kinds of sentences available; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide restitution to the victims.
First, the Court must consider the nature and circumstances of the offense and the history and characteristics of the defendant. Taking the nature and circumstances of the events first, Shull was a passenger in a car in which 52.9 grams of crack cocaine were discovered. No firearms were present, and no violence occurred in connection with the drug offense.
As to his individual characteristics, Shull is now 30 years old. He grew up in Columbus, Ohio in a typical two-parent home. Never married, Shull has six children and has good relationships with each of his children and their mothers. Like most drug offenders, he has a past history of substance abuse. He has taken steps to address this issue by completing a Drug Education Program. Shull did not complete high school, but he did obtain his GED. In a letter to the Court, Shull wrote that he has now committed himself to academic and vocational training. He has taken several vocational courses, and obtained the National HVAC Excellence Certification in air conditioning and in HVAC Electrical. He successfully completed the EPA class on safe handling of refrigerants and the Green Mechanical Awareness Exam. In addition, he earned the OHSA 10-hours General Industry Safety Card. Shull is now enrolled in Glenville State College taking business classes, and the Court hopes that he will continue his educational pursuits throughout the remainder of his term and upon his release.
Second, the sentence imposed must reflect the seriousness of the offense, provide just punishment, and deter criminal conduct. As to the seriousness of the offense, crack cocaine is a very dangerous drug, but there is nothing about the conduct at issue here that renders this story unique. Shull’s case is that of another drug user without an education or a job who started selling drugs. Congress has determined that a mandatory minimum of five years is the appropriate punishment for this type of low-level dealer, and the Court is bound to follow. The Court hopes that this sentence will impress on Shull the necessity of reforming his lifestyle, and will encourage others not to follow his path, but to stay in school, work hard, and find a job.
Third, the Court is required to consider the kinds of sentences available, including non-incarceration alternatives. This factor is easy to dispense with, as incarceration is mandated in this case.
Fourth, the Court is obligated to fashion a sentence for Shull in line with the sentences that similarly situated offenders have received, both in this case and in other cases. The government argues that Shull must be sentenced in a manner that is consistent with his co-defendant, Antwan Lewis. Following the guilty verdict in Shull’s case, Lewis pled guilty to the two counts in the indictment and was sentenced to 120 months. While the Court understands the government’s concern, its argument is unpersuasive for two reasons. First, Lewis pled guilty to two counts: conspiracy and possession with intent to distribute. Shull appears before this Court only on the intent to distribute count. Second, at Lewis’s sentencing, the Court was constrained by the ten-year
C. IMPOSITION OF SENTENCE
After considering the § 3553(a) factors — particularly Shull’s personal efforts to obtain an education and his role at the bottom of the drug hierarchy — as well as the history of crack cocaine sentencing, the Court finds that a variance from the advisory Guidelines range is warranted. The recommended sentence is based on an 18:1 ratio, which is a compromise position that does not fully remedy the problems posed by the crack/powder disparity. As explained in great detail above, the disparity: (1) is not supported by the evidence of relative harmfulness and addictiveness between crack and powder; (2) punishes low-level dealers of crack like Shull more harshly than high-level traffickers of other drugs; (3) uses a quantity ratio as a proxy for violence and weapons, neither of which are at all relevant to this case; and (4) continues to foster disrespect for the criminal justice system because it disproportionately impacts African American defendants like Shull. If the crack-to-powder ratio were 1:1, the Guidelines would be 27-33 months, as opposed to 78-98 months. The Court sees no justification for the difference in this case, or in general.
See United States v. Williams,
Nevertheless, the Court is required to impose a mandatory minimum in this case. Accordingly, pursuant to the Sentencing Reform Act of 1984 and 18 U.S.C. § 3553(a), it is the judgment of the Court that the defendant, Robert H. Shull, is sentenced to 60 months on Count 1.
IT IS SO ORDERED.
Notes
. The statements of Senators and Representatives are illuminating and provide context for
. In the Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U.S.C. § 3551 et seq. (2000 ed. and Supp. V), Congress created the Sentencing Commission and instructed it to promulgate the Sentencing Guidelines. The first edition of the Guidelines became effective in November 1987. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy ii-iv (Feb. 1995).
. In 2010, fifty-five percent of federal inmates were serving time for drug offenses. Fifteen percent were convicted of weapons offenses, eleven percent of immigration violations, eight percent of violent crimes, five percent of fraud, four percent of property crimes, and three percent of sex offenses. See Hearings Before the Subcommittee on Commerce, Justice, Science, and Related Agencies of the House Committee on Appropriations, 111th Cong. 6 (March 10, 2009) (Statement of Harley G. Lappin, Director, Federal Bureau of Prisons, on the Federal Prisoner Reentry and the Second Chance Act). By comparison, only eighteen percent of state prisoners are serving time for drug offenses. See Prisoners in 2009 7.
. The Sentencing Commission concluded that crack may be more addictive than powder due to its methods of administration.
See
2002
Report
at 17-19; United States Sentencing Commission,
Report to Congress: Cocaine and Federal Sentencing Policy
63-67 (May 2007). The testimony of scientists before the Commission does not support this conclusion. Different methods of ingestion produce different types and lengths of highs, but different forms of cocaine are not more or less addictive. Crack is traditionally smoked, and powder used intravenously, intranasally, or orally. Dr. Glen Hanson, the Acting Director of the National Institute on Drug Abuse, testified that if the Sentencing Commission wanted to distinguish between types or uses of cocaine, the best method would not be to divide crack and powder, but to make separations based on the rapidity of delivery systems, with the most rapid being smoked and intravenous use, followed by intranasal, and
. Most cocaine is imported into the United States in its powder form. Crack is made by "cooking” powder with baking soda and water. This is not done by high-level traffickers or importers, but those lower on the chain to whom the drug the drug is distributed for sale.
See United States v. Gunter,
. Shull appears before this Court on general remand for de novo resentencing. In other words, the Court must start fresh and redo the entire sentencing process.
See United States v. Moored,
. At the time of this writing, eleven circuit courts have held that the FSA does not apply to defendants who were sentenced under the prior statute and Guidelines, before the effective date of the FSA. These Courts held that the General Saving Statute, 1 U.S.C. § 109, barred the retroactive application of the FSA.