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United States v. Gunter

September 11, 2006

UNITED STATES OF AMERICA
v.
JOHNNY GUNTER, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 04-cr-00295-1) District Judge: Honorable James T. Giles.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued June 1, 2006

Before: AMBRO, FUENTES and GREENBERG, Circuit Judges.

OPINION OF THE COURT

Johnny Gunter was convicted, inter alia, of possession with intent to distribute cocaine base ("crack") and sentenced to a 295-month prison term. He argues on appeal that the District Court erred in ruling that it could not, as a matter of law, impose a sentence below that of the applicable federal Sentencing Guidelines range for offenses involving crack cocaine. For the reasons provided below, we vacate Gunter's sentence, and remand this case to the District Court for resentencing.

I. Factual and Procedural Background

On February 3, 2004, detectives found Gunter in a motel in West Reading, Pennsylvania with 72.5 grams of crack and a .25 caliber firearm loaded with six rounds of ammunition. As a result, Gunter was indicted in the United States District Court for the Eastern District of Pennsylvania for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)).

Following a three-day jury trial, he was convicted on all charges.

The presentence report ("PSR") calculated Gunter's advisory Guidelines range. The 72.5 grams of crack found in Gunter's possession generated a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4) (instructing that offenses involving 50 but less than 150 grams of crack have an offense level of 32). An additional two levels were added because the motel where the crack was recovered was within 1,000 feet of a school (West Reading Elementary School). See id. § 2D1.2(a)(1). When combined with a criminal history category of V, Gunter's total offense level of 34 yielded a sentencing range of 235-293 months. Gunter also was exposed to a consecutive 60-month term because he used or carried a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(ii). Accordingly, his aggregate Guidelines range was calculated as 295-353 months' incarceration.

Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including what he claimed was the unjustifiable "disparity"*fn1 created by the longer sentences recommended for offenses involving crack cocaine compared to those recommended for offenses involving powder cocaine. He accurately explained that, had his offense conduct involved powder-rather than crack-cocaine, his sentencing range would have been 111-123, instead of 295-353, months' imprisonment. Gunter grounded his contention that the Court had discretion to sentence at less than the Guidelines range for his crack offenses because of the Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005). The District Court rejected that argument, ruling that the 100:1 crack/powder cocaine differential in the Guidelines was a determination left to Congress, not to sentencing judges, and thus he was bound to follow it in setting the sentence. Specifically, the Court responded to Gunter's request for a below-Guidelines sentence due to the differential by noting as follows:

[D]oesn't a sentencing Court have to respect the congressional intent with respect to sentencing for crack versus powder cocaine, and to take a position that does not recognize what Congress clearly intended, wouldn't that be a legislative act by a Court as opposed to a judicial act? I don't think the provisions that Congress has put up there for a Court to decide to consider suggest that the Court can second guess Congress' well spelled out intent with respect to sentencing. I don't think I can call it sentencing -- I don't think I can say that there should not be a sentencing disparity.

App. at 55-56.

As previously mentioned, the Court sentenced Gunter at the low end of the Guidelines range calculated for his aggregate offenses-295 months' imprisonment. Gunter never argued that the Court had incorrectly calculated his Guidelines range. Rather, he asked it to sentence him below his correctly calculated range because of the form of the drug involved in these offenses. This leads us to believe that the Court viewed the crack/powder cocaine differential in the Guidelines as mandatory in imposing Gunter's sentence. If so, is its interpretation correct as a matter of law?*fn2

II. Discussion

A. Background: Federal Crack Cocaine Sentencing

As courts and commentators have explained on numerous occasions, the sentencing contrast for crack and powdered cocaine offenses debuted in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified at 21 U.S.C. § 841) ("Act"). The Act created two tiers of mandatory sentencing ranges for drug offenses. Id. § 1002 (codified at 21 U.S.C. § 841(b)(1)). The lower tier spans periods of imprisonment ranging generally from a mandatory minimum of five years to a maximum of forty years; the higher tier spans periods of imprisonment ranging generally from a mandatory minimum of ten years to a maximum of life. Id. These minimum prison terms are triggered exclusively by the quantity and type of drug involved in the offense. Though it is undisputed that crack and powder cocaine are pharmacologically indistinguishable,*fn3 Congress set dramatically different penalty structures for each, requiring one hundred times more powdered cocaine than crack cocaine to trigger inclusion in a particular range. Id. For example, a crack cocaine distribution conviction involving 5 grams yields a 5-year mandatory minimum sentence, while a distribution conviction involving 500 grams of cocaine powder is required to trigger the same 5-year sentence. Id.*fn4

The sentencing difference between crack and powder cocaine was based on Congress's determination that crimes involving crack pose a more serious societal danger than crimes involving powder cocaine. See U.S. Sentencing Comm'n, Special Report to Congress: Cocaine and Federal Sentencing Policy 117-18 (1995), http://www.ussc.gov/crack/exec.htm ("1995 Report"). Specifically, "legislators believed that crack is more addictive than powder cocaine, that it causes crime (psychopharmacological, economic-compulsive and systemic), that it has perilous physiological effects such as psychosis and death, that young people are particularly prone to becoming addicted to it ('students will be faced with the temptations of crack and other drugs during their school years') and that crack's low cost per dose and ease of manufacture would lead to even more widespread use of it." William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev. 1233, 1252 (Winter 1996) (internal citations omitted); see also United States v. Pho, 433 F.3d 53, 55 (1st Cir. 2006) (citing 1995 Report at 118) (explaining that "Congress found that crack cocaine was more likely to (i) induce addiction; (ii) correlate with the incidence of other serious crimes; (iii) implicate especially vulnerable members of society; (iv) cause deleterious physiological effects; and (v) attract youthful users").

Shortly after passage of the Anti-Drug Abuse Act, the United States Sentencing Commission incorporated the statutorily established difference in punishment between crack and powder cocaine offenses into the federal Sentencing Guidelines. See U.S.S.G. § 2D1.1(c); Spade, supra, at 1249. As the First Circuit Court of Appeals explained,

[t]he Commission built the base offense levels for crimes involving crack and powdered cocaine around the threshold quantities set by Congress. This architectural decision comported with Congress's discernible intent. See 28 U.S.C. § 994(i)(5) (requiring the Commission to "specify a sentence to a substantial term of imprisonment" for offenders convicted of "trafficking in a substantial quantity of a controlled substance"). Consistent with its congressionally imposed obligation to "reduc[e] unwarranted sentence disparities," id. § 994(f), the Commission also fixed the guideline sentences for offenses involving non-threshold quantities of crack and powdered cocaine in accordance with the 100:1 ratio. See generally USSG § 2D1.1, cmt. (backg'd.) (concluding that "a logical sentencing structure for drug offenses" requires coordination with mandatory minimum sentences). Thus, while Congress designed the 100:1 ratio to ...


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