Determining the Base Offense Level in Offenses Involving Crack Only
In 2010, the Fair Sentencing Act was passed to amend the Drug Quantity Table in §2D1.1 of the federal sentencing guidelines so that crack quantities triggering the five-and ten-year mandatory minimums are assigned base offense levels two levels lower than before. Under this so-called “Crack Amendment,” the base offense levels for these quantities now correspond to guideline ranges that include (rather than exceed) the mandatory minimum. The Fair Sentencing Act similarly adjusted the drug threshold quantities above, between, and below the mandatory minimum thresholds, with the net result being that for crack offenses, base offense levels across the board are two levels lower than they would have been before the amendment. See 72 Fed. Reg. 28, 558, 28, 571-73; U.S.S.G. App. C, Supp. Amend. 706; U.S.S.G. §2D1.1 (2007).
For example, under the old guidelines, at least 5 grams but less than 20 grams of crack was assigned a base offense level of 26 and a minimum guideline range of 63 to 78 months, which exceeded the mandatory minimum of five years by at least three months. Now, the same quantity of crack is assigned to base offense level 24, which corresponds to a minimum advisory guideline range (51 to 63 months) that includes the mandatory minimum. Likewise the base offense level assigned to at least 50 grams but less than 150 grams of crack has been adjusted downward to offense level 30, which corresponds to a minimum advisory guideline range of 97 to 121 months. The remaining quantities above, between, and below these quantities have been similarly adjusted downward.
Quantity
BOL* under Former § 2D1.1
BOL under Amended § 2D1.1
4.5 KG or more
38
38
1.5 KG to < 4.5 KG
38
36
500 G to < 1.5 KG
36
34
150 G to < 500 G
34
32
50 G 50 < 150 G
32
30
35 G to < 50 G
30
28
20 G 50 < 35 G
28
26
5 G to < 20 G
26
24
4 G to < 5 G
24
22
3 G to < 4 G
22
20
2 G to < 3 G
20
18
1 G to < 2 G
18
16
500 MG to < 1 G
16
14
250 MG to < 500 MG
14
12
< 250 MG
12
12
*Base offense level under Advisory Guidelines
Here is a reader-friendly comparison of the old and new base offense levels:
For offenses involving crack only, applying the amendment is easy: simply determine the base offense level in the new Drug Quantity Table in § 2D1.1 that corresponds to the quantity of crack your client has been proved responsible for. For quantities between 4.5 KG and 500 MG, the result will be two levels lower than under the old guideline. For quantities outside that range, there is no change in the base offense level.
ALERT: By recalibrating the crack cocaine quantity thresholds in this manner, the Commission has created a system in which the ratio of crack to powder cocaine varies wildly from one offense level to the next. Even worse, the ratio is often more severe for low-level players than it is for bigger dealers. Below are the new ratios:
LEVEL
RATIO
38
33:1
36
33:1
34
30:1
32
33:1
30
70:1
28
57:1
26
25:1
24
80:1
22
75:1
20
67:1
Lower
50:1
As the guidelines are only advisory, if you find yourself looking at one of the higher ratios, argue that the court should not assign a ratio any higher than the lowest ratio of the bunch, which is 25 to 1. Ask the judge to make the independent assessment – under 18 U.S.C. § 3553(a) and pursuant to the district court’s duty under Booker and Rita – that an advisory guideline range based on a higher ratio reflects “unsound judgment” on the part of the Commission and should not be followed.1
Determining Base Offense Level in Offenses Involving Crack and Other Controlled Substances
The Commission also modified the mechanism for determining the base offense level in offenses involving crack and other controlled substances. The mechanism is set forth in new subdivision (D) of Application Note 10. See U.S.S.G. §2D1.1 cmt. N.10(D) (2007). Although this determination is a bit more complicated than for offenses involving crack only, it is really not very different from the old method of determining the base offense level for combined sentences, except that there is now a special marijuana equivalency table for the quantity of crack involved, which is derived from the new ratios between crack and marijuana quantities at each offense level. Here’s how it works:
First, determine the base offense level for the quantity of crack involved in the case. Find the assigned marijuana equivalency for the crack offense level in the special table in that subdivision. See is. Cmt. N.10(D)(i)(II). Convert the crack quantity to its marijuana equivalency under the special table, which is reproduced here:
Base Offense
Level Marijuana Equivalency
38
6.7 kg of marijuana per g of cocaine base
36
6.7 kg of marijuana per g of cocaine base
34
6 kg of marijuana per g of cocaine base
32
6.7 kg of marijuana per g of cocaine base
30
14 kg of marijuana per g of cocaine base
28
11.4 kg of marijuana per g of cocaine base
26
16 kg of marijuana per g of cocaine base
24
5 kg of marijuana per g of cocaine base
22
15 kg of marijuana per g of cocaine base
20
13.3 kg of marijuana per g of cocaine base
18
10 kg of marijuana per g of cocaine base
16
10 kg of marijuana per g of cocaine base
14
10 kg of marijuana per g of cocaine base
12
10 kg of marijuana per g of cocaine base
For example, 200 G of crack now corresponds to base offense level 32 in the Drug Quantity Table. Under the special marijuana equivalency table above, each gram of crack at level 32 is equivalent to 6.7 KG of marijuana. Thus, 200 G of crack at level 32 is equivalent to 1340 KG of marijuana.
Second, determine the combined marijuana equivalency for the other controlled substances involved in the offense by using the regular Drug Equivalency Table (now located in subdivision (E) of Application Note 10) and by following the instructions in subdivision (B) of Note 10. Basically, for each substance, convert each drug to its marijuana equivalent under the Drug Equivalency Table, add the quantities, and find the corresponding offense level for the total quantity in the Drug Quantity Table. See U.S.S.G. §2D1.1 cmt. N.10(B).2
For example, say that the case involving 200 G of crack referred to above also involved 300 G of powder cocaine and 750 G. of methamphetamine. Under the regular Drug Equivalency Table, the cocaine converts to 60 KG of marijuana, and the methamphetamine converts to 1500 KG of marijuana.
Third, add the marijuana equivalencies for all three drugs together and find the quantity in the Drug Quantity Table to obtain the combined base offense level.
As calculated above, the crack converts to 1340 KG of marijuana under the special equivalency table in subdivision (D) of Application Note 10; the cocaine converts to 600 KG of marijuana under the regular table in subdivision (E); and the methamphetamine converts to 1500 KG of marijuana under the regular table in subdivision (E). Adding these marijuana equivalencies results in a combined quantity of 3440 KG of marijuana (1340 KG + 600 KG + 1500 KG = 3440 KG), which corresponds to a combined base offense level of 32 for all three controlled substances involved in the offense.
For example, an offense involving a quantity of crack and a quantity of another controlled substance could be assigned a base offense level higher than an offense involving the same total quantity of crack alone. Following the procedures outlined in subdivision (D), an offense involving 12 grams of crack and 6 grams of powder is assigned a combined base offense level of 26. Here’s how:
(1) 12 G crack = BOL 24 in the DQT. Multiply by 16 KG mj per g of crack under subdivision (D) = 192 KG mj
(2) 6 G powder cocaine. Multiply by 200 G mj per g of powder under subdivision (B) = 1.2 KG mj
(3) Add 192 KG + 1.2 KG = 193.2 KG mj, which is assigned a BOL 26 in the DQT.
In contrast, had the offense involved 18 grams of crack only, the assigned base offense level would only be 24 under the Drug Quantity Table. If you come across such a situation or something similar, you may want to point out to the judge that these amendments are intended as “interim” and incomplete fixes to the problems associated with the 100-to-1 ratio, and as such are not perfect. Again, ask the judge to make the independent assessment – under 18 U.S.C. § 3553(a) and pursuant to the district court’s duty under Booker and Rita. It need not follow an advisory guideline range that is higher for a combination of crack and another less severely punished drug than it would be for crack alone.5
Crack Cocaine Decisions
9th Circuit vacates crack cocaine sentence and remands in light of Kimbrough. At defendant’s sentencing for distribution of crack cocaine, among other offenses, he asked the court to consider the 100-1 sentencing disparity between crack cocaine and powder cocaine. The district court declined to do so, on the ground that it was not appropriate for a district court to reduce a sentence based on a disagreement with decisions by Congress and the Sentencing Commission. After defendant’s sentencing, the Supreme Court held in Kimbrough v. U.S., 128 S.Ct. 558 (2007), that a court does not abuse its discretion in concluding that the crack/powder disparity yields a sentence greater than necessary for an individual defendant. Applying Kimbrough, the Ninth Circuit vacated defendant’s sentence and remanded for reconsideration in light of that decision. U.S. v. Casteneda, __F.3d__ (9th Cir. Jan. 15, 2008) No. 05-10372.
7th Circuit remands for independent finding of drug quantity. Defendant conspired to steal money and drugs from a drug dealer. However, the drug dealer was actually an FBI agent, and the car that the conspirators “robbed” contained $20,000 in cash and two fake kilograms of cocaine. On appeal, the government argued that the district court misapplied the Guidelines by not taking into account the full weight of the fake drugs stolen from the car, noting that the court accepted the jury’s determination of drug quantity because it was “troubled by the scenario in which the offense level is driven by the government’s decision about how many kilos to plant in the trunk.” The Seventh Circuit remanded for the district court to make an independent determination as to drug quantity, because the district court simply relied on the jury’s conclusion that defendant and his co-conspirators conspired to steal at least 500 grams. U.S. v. Millet, __F.3d__ (7th Cir. Dec. 14, 2007) No. 06-2678.
7th Circuit says sentence 10 years below advisory guideline range is not excessive. Defendant argued that his 20-year sentence for drug charges was “excessive.” The Seventh Circuit disagreed. The district court rejected the PSR’s findings that would have resulted in life in prison. It even varied from the advisory Guidelines requiring 30 years in prison down to 20. Given how central defendant was to a decades-long drug conspiracy, a sentence that was 10 years below the advisory guideline range was not “excessive.” U.S. v. Bailey, __F3d__ (7th Cir. Dec. 18, 2007) No. 07-1182.
From: Federal Sentencing Guide Vol. 19, No. 2, January 21, 2008.
See Rita v. United States, 127 S.Ct. 2465, 2468 (2007)(district court may conclude that the guideline sentence fails to reflect §3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in a proper way, or that a different sentence is appropriate “regardless.”); id. at 2463 (The presumption is not binding, does not place any burden of persuasion or proof on either party, and does not reflect greater deference to the Commission’s fact-finding than to that of the district court, but merely “reflects the fact that, by the time an appeals court is considering a within-guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case,” which is a “double determination”).
Note that for certain types of controlled substances, the marijuana equivalencies are “capped” and may require special counting. See U.S.S.G. § 2D1.1 cmt. N.10(B).
See 72 Fed. Reg. 51, 882083 (Sept. 11, 2007).
U.S.S.G. App. C, Supp. Amend. 706 (Reason for Amend.).
See Rita, 127 S.Ct. at 2463, 2465, 2468; see also supra note 1.
For all drug cases, quantity is a serious issue that sets the courts sentencing goals. The Federal Criminal Law Group will work to mitigate drug quantity to obtain a more reasonable outcome. This is just one of the many reasons that you need an experienced federal attorney at your side.