Crack,
powder cocaine are different
By
David Ziemer
Wisconsin Law Journal
June
14, 2006
| What
the court held Case:
U.S. v. Miller, No. 05-2978 Issue:
May a court impose a below-guideline sentence on a defendant convicted of a crack
cocaine offense, in order to minimize the difference between such defendants and
those convicted of powder cocaine offenses? Holding:
No. Even after U.S. v. Booker, judges are obliged to implement the 100-to-1 ratio
established by statute and the guidelines. |
A
court may not impose a below-guideline sentence as a means of reducing the difference
between defendants convicted of crack cocaine offenses, and those whose offenses
involve powder cocaine.
Writing
for the Seventh Circuit on June 7, Judge Frank H. Easterbrook wrote that “the
judge thinks the law misguided” is not a proper basis for a lower sentence.
Taryll
Miller was arrested for distributing cocaine. The police offered him the options
of cooperation in their investigation, or prosecution of both him and his girlfriend.
Miller
opted to cooperate, and both were at liberty, but he later reneged, and was prosecuted
in Indiana federal court.
He
moved to suppress his statements, but the district court found them voluntary
and denied the motion.
He
was convicted, and the sentencing guidelines prescribed a range of 324 to 405
months. The court imposed a sentence of only 300 months, however, by employing
a 20-to-1 conversion factor between crack and powder cocaine, instead of the 100-to-1
ratio provided in the guidelines.
Miller
appealed, but the Seventh Circuit affirmed.
First,
the court held that Miller’s statements to police need not be suppressed.
The
court acknowledged that an unwarranted threat to arrest a suspect’s “paramour,
spouse, or relative” could be “the sort of overbearing conduct that
society discourages by excluding the resultant statements.”
Options
Were Not Coercive
But,
here, the court found the threat was not unwarranted, because probable cause existed
to arrest Miller’s girlfriend.
The
court added: “The choice that the police extended — cooperate and remain
free, or be silent and enter custody together with the confederate in his household
— made him better off than official reticence and his own ignorance of consequences
would have done. An offer that makes the recipient better off cannot be condemned
as coercive.”
Turning
to Miller’s sentence, the court rejected his argument that the sentence was
unreasonably high.
As
noted above, even though the sentencing guidelines provide for a 100-to-1 ratio
between crack and powder cocaine, the district court employed a 20-to-1 ratio,
using a 2002 recommendation to Congress from the U.S. Sentencing Commission.
Miller
argued that the sentence was still unreasonable, because crack and powder cocaine
should be treated as identical, as the Commission proposed in 1995 (a 1-to-1 ratio
would have reduced the guideline range to 210 to 262 months).
The
court rejected the argument, however, noting that, even if Congress had adopted
the recommendation, it would not necessarily have lowered the sentences for crack;
Congress could have reduced the conversion factor, either by lowering sentences
for crack, raising them for powder, or a combination of the two.
The
court added, “A more fundamental problem with Miller’s position —
with the district court’s as well — is that the judiciary is not free
to replace Congress’s approach with one that it deems superior.”
Applying
Booker
The
court reaffirmed its previous holdings that, although the U.S. Supreme Court decision
in U.S. v. Booker, 543 U.S. 220 (2005), specified the appropriate decision maker
for facts that affect statutory maximum penalties, the court did not alter the
legal consequences of facts, once found.
Although
the court could have merely cited its earlier decision in U.S. v. Gipson, 425
F.3d 335 (7th Cir. 2005), in which it held that defendants are not entitled to
a deviation from the statutory ratio to eliminate differences in sentences for
crack and powder, the court went further, and held that such deviations are prohibited.
Both
circuit courts that have considered the issue halve held that, even after Booker,
courts are obliged to implement the 100-to-1 ratio: U.S. v. Pho, 433 F.3d 53 (1st
Cir. 2006); and U.S. v. Eura, 440 F.3d 625 (4th Cir. 2006).
The
Seventh Circuit joined those two circuits, writing, “we add, in agreement
with Eura and Pho, that district judges must continue to carry out the legislative
choice, even though there may be powerful reasons for change.”
Although
a court may impose a sentence outside the guideline range, after Booker, the court
concluded, “What makes a sentence ‘reasonable,’ however, depends
on the specifics of the case at hand; 18 U.S.C. 3553(a), which lists the factors
that control after Booker, does not include a factor such as ‘the judge thinks
the law misguided.’”
The
court reasoned, “differences called for by sec. 841(b)(1)(B) and supported
by the protocols that U.S.S.G. 2D1.1 prescribes for comparing different weights
and kinds of illegal drugs are not ‘unwarranted.’ The warrant for these
differences lies in decisions taken by Congress and the Sentencing Commission.”
Before
concluding, the court added that, had the government filed a cross-appeal, it
would vacate the sentence, with instructions to apply the required 100-to-1 ratio.
Because
the government did not appeal, the court held only that Miller was not entitled
to a further reduction, and affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
