DOJ Eliminates Crack Cocaine Disparity

I recently wrote a blog about the recent and dramatic change in the federal DOJ policy regarding the disparity between federal sentencing guidelines for crack and powder cocaine. On May 1, 2009, the United States Department of Justice (DOJ) released a Memorandum to all U.S. Attorney’s Offices instructing all federal prosecutors to inform sentencing courts “that the Administration believes Congress and the Commission should eliminate the crack/powder disparity . . .” and that prosecutors should not object to variances in sentencing to achieve that result.

The new DOJ memorandum gives federal criminal defense lawyers a powerful new tool to fight the draconian sentences that clients have faced for federal crack cocaine offenses.

Most recently, I convinced a federal judge in Maryland that the new DOJ Memo not only reduced the sentencing “regular” 2D1.1 guidelines for crack cocaine offenses, but it also reduced the Career Offender Guidelines under section 4B1.1. I argued that the DOJ Memo applied across the board to all disparity between crack and powder cocaine. Because my client was charged with conspiracy to distribute more than 50 grams of crack, the maximum possible punishment for the offense was life under 18 U.S.C. §841(b)(1)(A). The maximum possible penalty, however, for a similar offense involving powder cocaine was only 20 years under §841(b)(1)(C). This difference caused the career offender guidelines to drop from level 37, to level 32 because the career offender guidelines are keyed directly to maximum possible sentence for the charged offense.

In my recent case, the client was facing – after acceptance of responsibility – a sentencing guideline range of 262-327 months. Because the Judge agreed with my argument regarding the applicability of the DOJ Memo, he reduced the guidelines by five levels, to a range of 151-188 months – an immediate reduction of almost 12 years incarceration!

The DOJ Memo also allowed me to credibly argue that the federal sentencing Judge should disregard even the reduced the career offender guidelines because of the disparity between the career offender guidelines and the “regular” powder sentencing guidelines for this offense. In my case, the sentencing guidelines for a powder cocaine offense involving 54 grams of cocaine was level 13 after an adjustment for acceptance of responsibility, and my client’s guideline range was 30-37 months.

The federal Judge agreed with my argument that the 10-year difference between the career offender guidelines and the regular drug guidelines was so significant, it warranted a variance under 18 U.S.C. §3553. In my case, the federal Judge sentenced my client to 84 months incarceration. This was a far cry from the guideline range of 262-327 months determined as applicable in the PSR.

My client saved over 20 years of his life because I was able to convince the federal judge that the new DOJ policy regarding crack cocaine offenses applied to reduce all phases of the federal sentencing guidelines.

Federal criminal defense lawyers need to be keenly familiar with the change in sentencing policies for crack offenses. If your defense attorney is not familiar with these new changes, the client can pay an astronomical price for the mistake.

STSW attorneys are expert in federal criminal cases. Our lawyers are experienced in all phases of federal criminal cases, including, trials, appeals, and pleas. We achieve tremendous results for our clients because we are innovative and aggressive in our representation. There is not an issue that we have not handled in federal courts.

If you have questions, feel free to contact STSW partner Andrew C. White at (410) 576-2200. Initial consultations are free of charge. Life is too precious to trust to trust to anyone except an experienced federal criminal defense attorney.

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