United States v. Oscar Anderson, Jr.

82 F.3d 436, 317 U.S. App. D.C. 192, 1996 WL 174568

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 26, 1996
• Docket: 95-3109, 95-3123
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring Opinion filed by Circuit Judge TATEL.

Dissenting Opinion, filed by Circuit Judge WALD.

STEPHEN F. WILLIAMS, Circuit Judge:

In establishing minimum mandatory penalties for drug offenses in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-670, 100 Stat. 3207, Congress adopted a 100:1 ratio as between amounts of cocaine powder and cocaine base, generally known as crack. 21 U.S.C. § 841(a) & (b). The five-year mandatory minimum kicks in, for distribution or possession with intent to distribute, at 500 grams of cocaine powder but at only five grams of crack. 21 U.S.C. § 841(b). The ten-year minimum starts at five kilograms of cocaine or 50 grams of crack. Id. In its effort to grade penalties in accordance with the severity of the offense, as measured for drug offenses in part by the quantity of drugs, the Sentencing Commission incorporated the statutory ratio, both for lower and higher quantities. Thus drug convictions involving at least 500 but less than 2000 grams of cocaine, or at least 5 but less than 20 grams of crack, equally produce a base offense level of 26. U.S. Sentencing Guidelines (“U.S.S.G.”) § 2D1.1. Absent any further adjustments, this would lead to a sentencing range of 63 months (just above the five-year statutory minimum) to 78 months. Id. at Ch. 5, Pt. A. The next quantitative step up, 2-to-3.5 kilograms of cocaine or 20-to-35. grams of crack, would take the offense to level 28 and a range of 78 to 97 months. And so on. The Commission explained that “[t]he base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute.... Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses.” U.S.S.G. § 2D1.1 (commentary, background).

The 100:1 ratio has been subject to severe attack, particularly because the use and marketing of cocaine powder and crack appear to follow a racial fault line, with blacks being characteristically subject to the far more draconian crack penalties. See, e.g., United States v. Thompson, 27 F.3d 671, 678 (D.C.Cir.1994); United States v. Armstrong, 48 F.3d 1508, 1511-12, 1515 (9th Cir.), cert. granted, — U.S. —, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995). The widespread concern has led to an exchange between Congress and the Sentencing Commission, as yet inconclusive, but which appellants claim establishes that the flaws in the 100:1 ratio amount to a “mitigating circumstance ... not adequately taken into consideration” by the Sentencing Commission, thereby authorizing a departure under 18 U.S.C. § 3553(b) below the otherwise indicated Guidelines range.

In the Omnibus Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Commission to produce a report on the difference in penalty levels, along with any recommendations for change. Pub.L. No. 103-322, § 280006, 108 Stat. 2097. The Commission duly produced a report that— after reviewing the varieties of cocaine, examining the health effects of their use, describing how they are distributed, and attempting to measure their effect on crime— concluded, rather hesitantly and cautiously, that “a policymaker could infer that crack cocaine poses greater harms to society than does powder cocaine.” Special Report to the Congress: Cocaine and Federal Sentencing Policy 195 (Feb. 1995). But the Commission concluded that the 100:1 ratio was not logically supportable. Some of thé concerns that had led to its adoption by Congress, such as the greater association with gun-carrying, violence, and offenders’ prior criminal records, were the subject of enhancements under the Guidelines, making it inappropriate to use them also as a basis for greater severity for crack across the board. Id. at 196. Other concerns, however, such as crack’s greater addictiveness and (because of its cheapness) availability to “a broader and more vulnerable part of the population,” id. at 197, were not separate bases for adjustment, and accordingly remained grounds for some differential. Thus, although the Commission “strongly” recommended against retention of the 100:1 ratio, it declined to recommend any particular alternative. Id. at 198. In May 1995, however, the Commission bit the bullet and proposed a 1:1 ratio, also specifically suggesting that Congress drop the 100:1 ratio from its own mandatory minimums. See United States Sentencing Commission, Amendments to the Sentencing Guidelines for United States Courts, 60 Fed.Reg. 25074, 25075-76 (1995).¹ Congress rejected the 1:1 ratio proposal on October 30, 1995, Pub.L. 104-38, § 1, 109 Stat. 334, but at the same time told the Commission to try again, with the guidance (rather obvious under the circumstances) that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine-” Id. § 2(a)(1)(A).

Both appellants here pleaded guilty to offenses involving at least five but less than 20 grams of crack, leading to initial classification of their offenses at level 26. Both calculations were subject to further adjustments that are not in dispute here, so that, even though they were sentenced at the very bottom of their Guidelines range, both received sentences well above the five-year mandatory minimum; thus, despite Congress’s retention of the 100:1 ratio in those minimums, for them a downward departure would have been feasible (i.e., would not have bumped into the mandatory floor) if it had been permissible under the Guidelines. Both were sentenced after the Commission made its 1:1 proposal to Congress but before the congressional rejection, and both asked the district judge (the same one, as it happened) to depart downwards on the theory that the Commission’s report and recommendation proved the inadequacy of the Commission’s prior “consideration” of the cocaine-crack relationship. The district court declined, expressly stating that it lacked authority, and reasoning that the proposed amendment was “not a law” but “just a recommendation to Congress.” We agree that the Commission’s and Congress’s ongoing and inchoate efforts to alter the status quo do not give district Judges authority to depart.

District courts have statutory authority to depart from sentencing levels established in the Guidelines if

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.

18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0 (policy statement). We reject the appellants’ contention that the Commission’s Special Report and later recommendation to Congress show that it did not “adequately” consider the cocaine-crack issue when it adopted the 100:1 ratio, as the term “adequately” is used in § 3553(b).

We question whether one could read “adequately” as used in § 3553(b) to permit courts to find the Commission’s “consideration” of a factor inadequate unless the Commission has not officially considered the factor at all — “circumstances of a kind” — or has not addressed the extremity of the case — “or to a degree.” In its statement of purposes for establishment of the guidelines and the Commission, interestingly, Congress in fact used a formula omitting the word “adequately” altogether, saying that its goal was to avoid sentencing disparities “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.” 28 U.S.C. § 991(b)(1)(B).

In any event the Commission has explained that it intends the district courts to “treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes,” and to consider departing only if the court “finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm.” U.S.S.G. Ch. 1, Pt. A, § 4(b) (policy statement) (emphasis added); see also United States v. Dyce, 78 F.3d 610, 612 (D.C.Cir.1996) (explaining atypicality requirement). This interpretation is an entirely reasonable reading of the statute. See United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (courts defer to reasonable interpretations by Sentencing Commission under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)); cf. Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (policy statements limiting district court discretion to depart are “authoritative guide[s]” to meaning, of Guidelines).² In United States v. Rivera, 994 F.2d 942 (1st Cir.1993), then-Chief Judge Breyer elaborated on the link between atypicality and the definition- of “kind” and “degree”:

The district court’s decision that circumstances are of a “kind” or “degree” that warrant departure will not involve a “quintessentially legal” interpretation of the words of a guideline, but rather will amount to a judgment about whether the given circumstances, as seen from the district court’s unique vantage point, are usual or unusual, ordinary or not ordinary, and to what extent.

Id. at 951 (emphasis added). This reading assures fulfillment of the Guidelines’ effort to structure sentencing coherently. . Non-Guidelines sentences will occur only where the Commission has completely overlooked a factor (an event that is presumably rare and almost inconceivable for a characteristic typical of a crime .or of defendants) or where the defendant’s case manifests a circumstance that was considered but which is present in such an extreme form that the Guidelines’ adjustment for it is inadequate.

Appellants cite United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), to prove the absence of any atypicality requirement. But in that ease, holding that a downward departure was permissible where defendant would serve his sentence under harsher conditions solely because he was a deportable alien, neither the majority nor the dissent could find any suggestion that the Commission had considered that circumstance at all in establishing the Guidelines. (Although the Commission’s complete lack of consideration was not mentioned explicitly, it is clear from the discussions in the opinions.) Nor can it be said that an expectation of especially severe conditions of incarceration due to being a de-portable alien is typical of defendants. Our more recent decision in Dyce emphasizes the other form of inadequate consideration — a factor manifest in an extreme degree in the defendant’s case. There we rejected the district court’s grant of a downward departure for family responsibilities to a single mother of three,- pointing out that the Guidelines discourage consideration of family circumstances in sentencing and that such consideration therefore was allowed only in an “extraordinary” situation, which Dyce did not present. Dyce, 78 F.3d at 613.

In their briefs appellants try to get around these limitations on the meaning of adequate consideration by stressing that the Commission itself found that its earlier decision failed to take adequate account of the (lack of) differences between powder cocaine and crack. But 18 U.S.C. § 3553(b) states: “In determining whether a circumstance was adequately taken into account, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” As the Commission has not so characterized its report and recommendation to Congress on crack, they would seem to have no more weight for these purposes than a report by a learned society.³ There is no logical distinction between them for purposes of measuring adequacy of consideration; indeed, at oral argument counsel urged that a report of the latter sort would equivalently undermine the adequacy of the Commission’s consideration of an issue. The Commission presented new findings, as any group or individual might do, that it claimed undermined the policy basis for part of the Guidelines. But it refrained from any effort to assign the report and recommendations official status under § 3553(b) — to do so would have been to engage in rather vehement self-contradiction — and merely proposed an amendment to Congress. Because Congress rejected it, the proposal never moved from astute critique into the realm of legal effectiveness.

Insofar as appellants try to escape this reasoning, they argue that Congress didn’t just reject the proposal, it invited the Commission to reconsider and to come up with an alternative. But a direction to study a matter, even from Congress, cannot be said to change the state of the low (here, the legal fact that the Commission has considered the “circumstance” — the difference between crack and powder cocaine). If it could, then directions to study, which often accompany legislation, see, e.g., Natural Gas Policy Act, Pub.L. No. 95-621, § 123, 92 Stat. 3350, 3371 (1978) (calling for Department of Energy to produce reports on “competitive conditions and market forces in the natural gas industry in the United States”), might be deemed to change the interpretation of the statute to which they are ancillary — and evidently to change it in completely random ways, in accordance with whatever the interpreting judge might expect to flow from the study.

Acceptance of appellants’ argument would logically 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.” 28 U.S.C. § 991(b)(1)(B); see also United States v. Williams, 980 F.2d 1463, 1467 (D.C.Cir.1992) (“The very purpose of the Guidelines ... was to eliminate disparity in the sentences of similarly situated defendants.”).

Apart from those disparities, appellants’ theory, would greatly exacerbate a problem that the mandatory mínimums already entail. A defendant guilty of distributing exactly five grams of crack, and whose treatment under the Guidelines calls for no upward adjustment, must get a minimum of five years. 21 (b). Under appellants’ view, a defendant guilty of the same crime, but with a host of aggravating factors, could readily get exactly the same sentence. Similar distortions are possible even now. A defendant with a base offense level equal to a mandatory minimum, plus some mitigating circumstances, can get no benefit from the latter, whereas a similar crack defendant, with the same mitigating circumstances and a host of aggravating ones, can do so — he can have the former offset the latter. Because acceptance of defendants’ claim here would greatly expand the incidence of these distortions, it is significant that the Commission’s reform proposal included an explicit invitation to Congress to change the mandatory mínimums themselves. It is thus unclear whether the Commission has even favored (we know it has not enacted) a crack/cocaine ratio for the Guidelines out of sync with that of the statute. So far as appears, it has not altered its original view that “a logical sentencing for drug offenses” requires refinements coordinated with the mandatory mínimums. U.S.S.G. § 2D1.1 (commentary, background).

Insofar as Hogan makes any separate argument (which his counsel disclaimed at oral argument), it runs roughly as follows: In the commission of my offense I did not engage at all in certain aggravating conduct (e.g., causing death or injury, possession or use of weapons, or sales of drugs to juveniles) that the Commission has (1) specifically identified as appropriate grounds for upward adjustments and (2) used in its crack report as part of the explanation for its adoption of the 100:1 ratio for crack. In other words, the Commission double-counted by considering the same factors in setting both the base offense level and upward adjustments. Accordingly, he implicitly argues, it is appropriate in context to treat the absence of these factors in his case as special mitigating circumstances “not adequately taken into consideration” by the Commission.

The difficulty with Hogan’s position is that it underscores why the Commission as a realistic matter could not classify its crack report and recommendations among the official materials to be considered under § 3553(b). To do so would have been to render those official materials hopelessly self-contradictory, saying on the one hand that crack deserves truly draconian treatment because of its statistical association with special characteristics, but also that those special characteristics are to be handled on a retail, individualized basis.

.None of our analysis is dependent on any assumption that the Commission and Congress will not, ultimately, modify the 100:1 ratio. The Commission has effective power to make its decisions retroactive. This is because Congress has authorized the courts to reduce a sentence where the Commission has lowered the sentencing range after a defendant’s sentencing and the reduction would be consistent with the Commission’s “applicable policy statements.” 18 U.S.C. § 3582(c)(2). The Commission lists its amendments for which it intends retroactivity, explaining that reduction under § 3582(c)(2) on the basis of amendments not so listed would not be “consistent with [its] policy statement” on the subject. U.S.S.G. § 1B1.10. This is the method that the statute contemplates for change, a method that, unlike appellants’ proposed analysis, enables the Commission to make systematic efforts to minimize sentencing disparities.

. As we understand our dissenting colleague’s opinion, it turns on a proposition not advanced by either appellant, namely, that the 100:1 ratio “violate[s] § 3553(a)’s instructions that a court impose a sentence ‘sufficient, but not greater than necessary’ to ‘reflect the seriousness of the offense’ and ‘provide just punishment.’” Dissent at 7. Because the issue was not raised by appellants, we do not pass on it, but we must note a few problems. First, it is far from clear that § 3553(a) provides a standard by which the Guidelines themselves are to be judged. It is in terms an instruction to the sentencing court, and, given § 3553(b)’s express provision for going outside the “range” determined by application of the Guidelines, would seem presumptively directed to the court’s exercise of its discretion within that range. Second, if (1) § 3553(a) is a standard for evaluation of the Guidelines themselves, and (2) the 100:1 ratio violates that standard, then Congress has at best sent rather contradictory signals in itself insisting on the 100:1 ratio in the mandatory minimum provisions of 21 U.S.C. § 841. Finally, if the Guidelines’ 100:1 ratio is unlawful, then we should think the proper remedy would be to strike it down and substitute a lawful ratio, or at any rate the largest ratio that the Commission could lawfully adopt (rather than licensing every district judge to make individual adjustments); such a remedy would preserve a coherent treatment as between crack and powder offenders, at least within this circuit.

* * *

The district court correctly decided that Congress’s and the Commission’s actions gave it no power to depart. The judgments are therefore

Affirmed.

1 . The Commission did make an effort to explain why its former conclusion about crack’s greater addictiveness — a factor not captured in the Guidelines apart from the ratio — did not justify a sentencing disparity: because, although powder cocaine cannot be smoked and is usually taken by the less addictive method of snorting, "powder cocaine may be injected and injection is even more likely to lead to addiction than is smoking.” 60 Fed.Reg. at 25077. But the Commission dismissed another factor not captured elsewhere in the Guidelines, crack's comparative cheapness, simply by saying: “Nor does the fact that crack cocaine is typically sold in smaller amounts, which may make it more readily available among lower-income groups, justify increased punishment compared to a form of the drug that is more commonly sold in amounts available only to more affluent persons." Id.

2 . As the Dissent observes, the Court in Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993), said that commentary should be treated as an agency’s interpretation of its own legislative rule, see Dissent at 2-3, which is more deferential than Chevron review, see Stinson, 508 U.S. at 44, 113 S.Ct. at 1918. But Stinson involved commentary on a guideline, as the Court stressed, id. at 42-43, 113 S.Ct. at 1917-18, whereas the key policy statement embodying the atypicality requirement, U.S.S.G. Ch. 1, Pt. A, § 4(b), is an interpretation of a statute, 18 U.S.C. § 3553(b), so it is not clear why greater-than-Ckevron deference would be suitable under the principles of Stinson. In any event, the point is clearly not critical here, as the Dissent, asserting a greater level of deference than we do, finds the Commission's view not worthy of deference as applied to this set of facts.

3 . Section 3553(b) is not entirely clear as to how a court is to determine from the specified documents "whether a circumstance was adequately taken into account.” Although § 3553(b) instructs courts to consider only guidelines, policy statements, and official commentary to determine whether the Commission adequately took into account a factor, it does not specify how or against what courts are to measure the adequacy of the Commission’s consideration of a factor.