Sentencing for Crack Cocaine and Powder Cocaine

The penalties for drug distribution and drug trafficking cases are driven by the type of controlled substance and the quantity. While cocaine and crack cocaine drug cases may appear to deserve to be treated the same, they are not. This has caused controversy since the implementation of mandatory sentences and guideline sentences for drug offenses involving cocaine.

Congress passed the Fair Sentencing Act

On August 3, 2010, President Obama signed the long awaited Fair Sentencing Act of 2010 (FSA). Its intent was to restore fairness to federal cocaine sentencing by reducing the crack cocaine-to-powder ratio disparity from 100:1 to 18:1. For instance, the FSA raises the quantity of crack cocaine triggering a 5 year minimum sentence from 5 grams to 28 grams. Similarly, the FSA raises the quantity of crack cocaine triggering a 10 year sentence from 50 grams to 280 grams. Equally important, the FSA gave the Sentencing Commission emergency authority to amend the sentencing guidelines to be consistent with the new law.

As soon as the FSA was enacted, questions arose about whether it applied retroactively to defendants not yet sentenced but whose offenses were committed prior to enactment. The statute contained no express provision stating whether Congress intended for FSA to apply to all sentencings after August 3, 2010 or only to those where the criminal offenses occurred after August 3, 2010.

The government generally took the position that without a retroactivity provision the FSA was only applicable to offenses occurring after enactment. The reason it argued was found in the Savings Clause, 1 U.S.C. §109. Without express language in the FSA directing the courts to apply the new penalties to pre-enactment offenses, many sentencing judges agreed that the Savings Clause prevented them from imposing reduced penalties to crimes committed before August 3, 2010. As a result, district court judges throughout the Eleventh Circuit and other circuits imposed inconsistent sentences.

Rojas decision applied the FSA to pre enactment offenses not yet sentenced

A case from Miami would eventually give the Eleventh Circuit Court of Appeals an opportunity to resolve this problem. At her sentencing hearing, held after enactment of the FSA, her attorney asked for a sentence under the new law, which would have allowed the judge to sentence her as a first-time offender to a 5 year mandatory minimum. The government opposed Rojas’ request, and the sentencing judge agreed with the government and imposed a 10 year sentence under pre-FSA law.

On July 6, 2011, the Eleventh Circuit reversed Rojas’ sentence in U.S. v. Rojas and ruled the FSA applied to those offenses that occurred prior to enactment but sentenced afterwards. Congress intended for the legislation to immediately halt the unfair sentencing practices in crack cocaine cases.

Shortly after the Rojas decision, the Department of Justice reversed its position. In a memorandum written to all federal prosecutors and issued on July 15, 2011, Attorney General Eric Holder conceded that the new mandatory minimums apply to all sentencings held after the enactment, regardless of when the offense took place

While the Attorney General’s position is welcome news, these problems could have been avoided if the Department of Justice recognized earlier that it was Congress’ intent to bring fairness to sentencing immediately after enactment. In fact, on November 17, 2010, Senators Dick Durbin and Patrick Leahy, the lead sponsors of the FSA, urged Holder to retreat from his position and to instruct federal prosecutors to apply the new law to “defendants who have not yet been sentenced, regardless of when their conduct took place.” The Senators’ pleas did not work, but after losing in two appellate courts, the government has finally abandoned the Savings Clause argument and concluded that Congress meant it when it said “Fair Sentencing.”

But the Rojas story is not over yet. On October 2011, 11th Circuit voted to hear the entire case en banc, meaning the entire 11 th Circuit Court will review the case and decide to uphold the decision or reverse. The application of the FSA is still in doubt.

Drug trafficking offenses are serious charges that require the highest quality legal representation. Ken Swartz is a Miami criminal defense lawyer who is a Florida Board certified expert in criminal trial law. With many years of experience as criminal defense attorney, he has represented hundreds of cases involving persons charged with drug trafficking offenses.

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