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Melissa M. Salinas, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant.
Linda H. Barr, United States Attorney's Office, Akron, Ohio, for Appellee.
Before: KEITH, COLE, and ROGERS, Circuit Judges.
KEITH, J., delivered the opinion of the court, in which, COLE, J., concurred in part and in the judgment. COLE, J. (pp. 528-29), delivered a separate opinion concurring in part and in the judgment. ROGERS, J. (pp. 529-30), delivered a separate dissenting opinion.
DAMON J. KEITH, Circuit Judge.
In 2010, the Fair Sentencing Act (" FSA" ) was passed " to restore fairness to Federal cocaine sentencing." Pub.L. 111-220, 124 Stat. 2372 (2010) (to be codified as amended in scattered sections of Title 21). The passage of the FSA was a monumental and commendable first step toward eliminating racial disparities in cocaine sentencing. Nevertheless, much work remains before fairness and integrity are fully restored to Federal cocaine sentencing, as evidenced in this case before us.
Defendant is currently incarcerated pursuant to a penalty that has been discredited not only by public opinion, but by Congress, the Supreme Court, and the United States Sentencing Commission. Prisoner seeks reduction of a sentence imposed on him for a violation involving cocaine base. Despite the passage of the FSA, the district court found that Prisoner and other similarly situated defendants are ineligible to have their unfair sentences reconsidered. This case requires us to interpret the U.S. Sentencing Guidelines Manual (hereinafter " Guidelines" or " U.S.S.G." ) and cocaine sentencing statutes, which overlap at several relevant points. Because we must give effect to Congress's unambiguously expressed intent that the amended Guidelines achieve consistency, we vacate the district court's order and remand for further proceedings consistent with this opinion.
Powder cocaine and cocaine base are two different forms of the same drug, but have been subject to different penalties for the same drug quantities. The FSA reduced from 100:1 to 18:1 the ratio between the quantities of powder cocaine versus cocaine base that trigger the same statutory minimum sentences (" cocaine ratios" ). Dorsey v. United States,
__ U.S. __, 132 S.Ct. 2321, 2329, 183 L.Ed.2d 250 (2012). " [T]he severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system," including Congress. United States v. Jackson, 678 F.3d 442, 444 (6th Cir.2012). Even before the FSA was enacted, the United States Supreme Court noted that the old 100:1 cocaine ratios " ‘ foster[ed] disrespect for and lack of confidence in the criminal justice system’ because of a ‘ widely-held perception’ that it ‘ promotes unwarranted disparity based on race.’ " Kimbrough v. United States, 552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 103 (May 2002)). Approximately eighty-five percent
of defendants convicted of cocaine base offenses in federal court are African-American. Id. Defendant was sentenced pursuant to the old ratios.
The facts of this case are undisputed. In 2006, Defendant pleaded guilty to two counts of distribution of over fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1)— the controlled substance criminal statute. Defendant's plea agreement specified that his offense involved 109 grams of cocaine base. The plea agreement stated, " The parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory Sentencing Guidelines in accordance with the computations and stipulations set forth in this agreement." The district court accepted the parties' plea agreement. At Defendant's original sentencing, the district court was bound by the pre-FSA statutory minimums. In 2006, pursuant to the sentencing provisions in 21 U.S.C. § 841(b)(1)(A)(iii) and 21 U.S.C. § 851, Defendant was subject to a statutory minimum sentence of 240 months of imprisonment. However, 240 months was only a presumptive statutory minimum because the Government moved for a downward departure in return for Defendant's substantial assistance to its investigation, and the district court granted further reductions for Defendant's acceptance of responsibility and timely indication of his intent to plead guilty. After the downward departure and reductions, the Guidelines yielded an advisory range of 130 to 162 months of imprisonment. Ultimately, the district court sentenced Defendant to 130 months of imprisonment, the low end of the advisory range.
The Fair Sentencing Act
Four years later, in 2010, the FSA was enacted. The FSA amended the cocaine base sentencing statute— 21 U.S.C. § 841(b)(1). Before the FSA, the cocaine base sentencing statute prescribed a ten-year statutory minimum sentence for offenses involving fifty or more grams of cocaine base. 21 U.S.C. § 841(b)(1)(A)(iii) (2006). Since the FSA was enacted, the cocaine base sentencing statute requires an offense to involve at least 280 grams of cocaine base in order to trigger a ten-year statutory minimum sentence. 21 U.S.C. § 841(b)(1)(A)(iii) (2012). Therefore, under the new minimums promulgated by the FSA, an offense involving 109 grams of cocaine base only triggers a five-year presumptive statutory minimum. 21 U.S.C. § 841(b)(1)(B)(iii) (2012). The statutory minimum in 21 U.S.C. § 841(b)(1) is only a presumptive starting point and it is still subject to various adjustments in a district court's calculation of a defendant's final sentence.
The Guidelines's penalties for cocaine base offenses were also amended as a result of the FSA. In the FSA, Congress gave the United States Sentencing Commission emergency authority to amend the Guidelines. § 8, 124 Stat. at 2374. Congress instructed the Commission that it " shall ... make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law." Id.
As a result of Congress's directive, the Sentencing Commission promulgated Amendment 750 to the Guidelines. Amendment 750 revised the drug quantity table in § 2D1.1(c) of the Guidelines. Similar
to the changes in the cocaine base sentencing statute, Amendment 750 increased the cocaine base quantities required to trigger higher base offense levels. U.S.S.G. app. C, amend. 750 (2011). Before Amendment 750 revised the § 2D 1.1(c) drug quantity table, an offense involving 109 grams of cocaine base corresponded to a base offense level of 32. After Amendment 750, an offense involving 109 grams of cocaine base corresponds to a base offense level of 26.
The sentencing table in chapter 5, part A of the Guidelines determines a defendant's advisory range based on criminal history category and Total Offense Level. The § 2D 1.1(c) drug quantity table determines a defendant's base offense level depending on the amount of drugs involved in the offense. Like a presumptive statutory minimum, a base offense level is similarly ...