Saturday, November 15, 2014

The Limits of 3582(c)(2) and Constitutional Failures

In 1998, a district court determined (without objection) that Alondo Gay distributed 9.6 kilograms of crack cocaine (roughly 20 pounds). He received a 22-year sentence (basically).
Since 1998, both Congress and the Sentencing Commission have reduced the penalties for distribution of crack cocaine. Because some of those reductions (the ones to the advisory Guidelines) have been made retroactive, Mr. Gay sought a sentence reduction under the applicable statute: 18 U.S.C. 3582(c)(2).
But Mr. Gay has a problem. Even the latest crack-cocaine reduction (Amendment 750) did not reduce his base offense level or his Guidelines range. So he was ineligible for a reduction, as the Tenth Circuit held earlier this week. So, what's the big deal? Why, exactly, is this a published decision?
Well, Mr. Gay thought his 22-year sentence violated the Fifth Amendment (due process) and the Eighth Amendment (cruel and unusual punishment). So the Court published a decision to make clear that it did not (we guess). Well, sort of. The Court actually held that a defendant cannot raise these types of claims in a 3582(c)(2) motion. They are better made on direct appeal or in a motion to vacate (28 U.S.C. 2255). That makes sense.
What makes less sense is that the Court then addressed the merits of these improperly-brought claims. The Eighth Amendment claim is simple in light of this case from the Supreme Court (rejecting an Eighth Amendment challenge to a life sentence for a smaller amount of crack cocaine). The Due Process claim focused on the continued disparity between crack cocaine and powder cocaine (now at 18:1). Had Mr. Gay distributed powder cocaine, his Guidelines range would have been 120 to 135 months imprisonment, well below the 22 years that he received. The Court was unimpressed in light of precedent and Congress's continued belief that crack cocaine should be punished more severely than powder cocaine. Typical stuff from an appellate court.
We take away three things from Gay: (1) if you are going to raise these types of issues, do it in the first instance (at the initial sentencing hearing); (2) expect to lose Constitutional arguments concerning the Guidelines' disparity between powder cocaine and crack cocaine; and (3) so, also frame the arguments as mitigating arguments for a lower sentence (i.e., a downward variance). The Supreme Court has said that district courts can vary based on the crack/powder disparity in any case, and district courts actually vary down for this reason. We continue to believe that a 1:1 ratio between powder and crack cocaine is the only reasonable ratio, and we think you should make the argument in all your crack cases that involve a ratio greater than 1:1. Here is one way to do it (it worked).
We end on a positive note for Mr. Gay: thanks to the just-enacted two-level, across-the-board retroactive reduction to the drug quantity Guidelines, he appears to be eligible for a reduced sentence under 3582(c)(2) come next November. Finally.  

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