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Crack, powder cocaine are different

By: dmc-admin//June 14, 2006//

Crack, powder cocaine are different

By: dmc-admin//June 14, 2006//

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What the court held

Case: U.S. v. Miller, No. 05-2978

Issue: May a court impose a below-guideline sentence on a defendant convicted of a crack cocaine offense, in order to minimize the difference between such defendants and those convicted of powder cocaine offenses?

Holding: No. Even after U.S. v. Booker, judges are obliged to implement the 100-to-1 ratio established by statute and the guidelines.

A court may not impose a below-guideline sentence as a means of reducing the difference between defendants convicted of crack cocaine offenses, and those whose offenses involve powder cocaine.

Writing for the Seventh Circuit on June 7, Judge Frank H. Easterbrook wrote that “the judge thinks the law misguided” is not a proper basis for a lower sentence.

Taryll Miller was arrested for distributing cocaine. The police offered him the options of cooperation in their investigation, or prosecution of both him and his girlfriend.

Miller opted to cooperate, and both were at liberty, but he later reneged, and was prosecuted in Indiana federal court.

He moved to suppress his statements, but the district court found them voluntary and denied the motion.

He was convicted, and the sentencing guidelines prescribed a range of 324 to 405 months. The court imposed a sentence of only 300 months, however, by employing a 20-to-1 conversion factor between crack and powder cocaine, instead of the 100-to-1 ratio provided in the guidelines.

Miller appealed, but the Seventh Circuit affirmed.

First, the court held that Miller’s statements to police need not be suppressed.

The court acknowledged that an unwarranted threat to arrest a suspect’s “paramour, spouse, or relative” could be “the sort of overbearing conduct that society discourages by excluding the resultant statements.”

Options Were Not Coercive

But, here, the court found the threat was not unwarranted, because probable cause existed to arrest Miller’s girlfriend.

The court added: “The choice that the police extended — cooperate and remain free, or be silent and enter custody together with the confederate in his household — made him better off than official reticence and his own ignorance of consequences would have done. An offer that makes the recipient better off cannot be condemned as coercive.”

Turning to Miller’s sentence, the court rejected his argument that the sentence was unreasonably high.

As noted above, even though the sentencing guidelines provide for a 100-to-1 ratio between crack and powder cocaine, the district court employed a 20-to-1 ratio, using a 2002 recommendation to Congress from the U.S. Sentencing Commission.

Miller argued that the sentence was still unreasonable, because crack and powder cocaine should be treated as identical, as the Commission proposed in 1995 (a 1-to-1 ratio would have reduced the guideline range to 210 to 262 months).

The court rejected the argument, however, noting that, even if Congress had adopted the recommendation, it would not necessarily have lowered the sentences for crack; Congress could have reduced the conversion factor, either by lowering sentences for crack, raising them for powder, or a combination of the two.

The court added, “A more fundamental problem with Miller’s position — with the district court’s as well — is that the judiciary is not free to replace Congress’s approach with one that it deems superior.”

Applying Booker

The court reaffirmed its previous holdings that, although the U.S. Supreme Court decision in U.S. v. Booker, 543 U.S. 220 (2005), specified the appropriate decision maker for facts that affect statutory maximum penalties, the court did not alter the legal consequences of facts, once found.

Although the court could have merely cited its earlier decision in U.S. v. Gipson, 425 F.3d 335 (7th Cir. 2005), in which it held that defendants are not entitled to a deviation from the statutory ratio to eliminate differences in sentences for crack and powder, the court went further, and held that such deviations are prohibited.

Both circuit courts that have considered the issue halve held that, even after Booker, courts are obliged to implement the 100-to-1 ratio: U.S. v. Pho, 433 F.3d 53 (1st Cir. 2006); and U.S. v. Eura, 440 F.3d 625 (4th Cir. 2006).

The Seventh Circuit joined those two circuits, writing, “we add, in agreement with Eura and Pho, that district judges must continue to carry out the legislative choice, even though there may be powerful reasons for change.”

Related Links

7th Circuit Court of Appeals

Related Articl
e

Case Analysis

Although a court may impose a sentence outside the guideline range, after Booker, the court concluded, “What makes a sentence ‘reasonable,’ however, depends on the specifics of the case at hand; 18 U.S.C. 3553(a), which lists the factors that control after Booker, does not include a factor such as ‘the judge thinks the law misguided.’”

The court reasoned, “differences called for by sec. 841(b)(1)(B) and supported by the protocols that U.S.S.G. 2D1.1 prescribes for comparing different weights and kinds of illegal drugs are not ‘unwarranted.’ The warrant for these differences lies in decisions taken by Congress and the Sentencing Commission.”

Before concluding, the court added that, had the government filed a cross-appeal, it would vacate the sentence, with instructions to apply the required 100-to-1 ratio.

Because the government did not appeal, the court held only that Miller was not entitled to a further reduction, and affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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