Since the April 29, 2009 hearings in the Senate, several district courts have announced that they will no longer follow the Guidelines and that they have categorically rejected the punishments applied to crack cocaine offenders. See, United States of America v. Gully, 2009 U.S. Dist. LEXIS 42888 (N.D. Iowa May 18, 2009)(the court has the authority and the duty to reject crack cocaine penalties and the use of a 1:1 crack-to-powder ratio is the appropriate sentencing methodology in crack cocaine cases); United States v. Rodriguez, 2009 U.S. Dist. LEXIS 53290 (N.D. Ill, June 23, 2009)(court finds the crack penalty to be greater than necessary and government does not oppose sentencing court’s decision to disregard the "crack" cocaine Guidelines and sentence defendant below range dictated by those penalties); United States v. Lewis, 2009 U.S. Dist. LEXIS 48081 *13 (D.C., June 9, 2009)(noting that the crack cocaine penalties are presumptively unjust and that "this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons.") Although courts have already begun sentencing based upon the 1:1 crack ratio as set forth in President Obama's Proclamation, legislation is now pending in the House to officially make this the "law of the land". H.R. 3245 eliminates the crack to powder ratio and treats both substances the same, applying the law currently in effect for powder to all forms of cocaine including base. This bill is also known as the "Fairness in Cocaine Sentencing Act of 2009" and was introduced on July 16^th. It has already won approval of the House Judiciary Committee on July 28, 2009 in a 16-9 vote and now moves on, hopefully to approval from the full House of Representatives sometime this fall. However, it has not yet been scheduled for a vote.

In 2008 court developments in the U.S. v. Whitley case have made a determination that could potentially effect many defendants who are involved in 924(c) and career criminal enhancements. In June, the United States Court of Appeals for the Second circuit decided a case that could have significant positive impact on individuals serving sentences for carrying, brandishing or discharging a firearm under 18 U.S.C. § 924(c) who were also sentenced as armed career criminals based on the same firearm. United States v. Whitley, 529 F.3d 150 (2nd Cir. 2008). Whitley participated in an armed robbery of a delicatessen in the Bronx in November 2004, during which he emptied the store's cash register, pointed a gun at employees, and inadvertently discharged the firearm, injuring himself in the face. The indictment charged three counts. Count One charged a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Count Two charged using, carrying, and possessing a firearm that was discharged during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count Three, the armed career criminal offense, charged possessing a firearm after having been convicted of at least three violent felonies or serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The jury ultimately returned guilty verdicts on all three counts. Whitley’s pre-sentence report ("PSR") calculated an adjusted offense level of 34, based on a grouping of Counts One and Two, which, in Criminal History Category VI, yielded a sentencing range of 262 to 327 months. The PSR recommended a consecutive 120-month sentence on Count Two. Judge Casey sentenced Whitley to concurrent terms of 262 months on Counts One and Three, plus 120 months consecutively on Count II.

The validity of Whitley's 10-year consecutive term depended on the proper construction of the language contained in 18 U.S.C. § 924(c)(1)(A). The Second Circuit determined that the "except" clause of 18 U.S.C. § 924(c)(1)(A) should have been read literally. If the "except" clause of 18 U.S.C. § 924(c)(1)(A) meant what it literally said, the 10-year minimum sentence required by 18 U.S.C. § 924(c)(1)(A)(iii) of that subsection for discharge of a firearm, which had to run consecutively by virtue of 18 U.S.C. § 924(c)(1)(D)(ii), did not apply to Whitley because a greater minimum sentence was otherwise provided by law, namely, 18 U.S.C. § 924(e), which subjected him to a 15-year minimum sentence. Thus, the clause exempted Whitley from the consecutive 10-year minimum sentence for discharging a firearm because he was subject to the higher 15-year minimum sentence provided by 18 U.S.C. § 924(e). Accordingly, the case had to be remanded for resentencing.

The only other United States Circuit Court of Appeals to address the issue has been the Fifth Circuit. See United States v. Kyles, 2008 U.S. App. LEXIS 25908 (5th Cir. Tex. Dec. 19, 2008). The Fifth Circuit found that any sentencing error (which was nearly identical to the error addressed in Whitley) was not clear or obvious based on other circuit decisions rejecting the same argument put forth in Whitley. Specifically, the Fifth Circuit cited three decisions that are contrary to Whitley's interpretation of the statute: United States v. Jolivette, 257 F.3d 581, 586-87 (6th Cir. 2001), United States v. Studifin, 240 F.3d 415, 423-24 (4th Cir. 2001), and United States v. Alaniz, 235 F.3d 386, 387-89 (8th Cir. 2000). Moreover, the Fifth circuit had previously agreed with the Fourth, Sixth, and Eighth Circuits' interpretation, although only in an unpublished decision. See United States v. Collins, 205 F. App'x 196, 198 (5th Cir. 2006) (per curiam).

One other Circuit Court and several United States District Courts have addressed claims based on Whitley, but as of yet none of them have actually reached a decision on the issue, deciding the respective cases on other grounds without analyzing the Second Circuit’s logic. See United States v. Parker, 2008 U.S. App. LEXIS 24215 (1st Cir. N.H. Nov. 26, 2008); Davila v. Grondolsky, 2008 U.S. Dist. LEXIS 62160 (D.N.J. Aug. 11, 2008); Blackstock v. United States, 2008 U.S. Dist. LEXIS 66985 (E.D. Va. Sept. 2, 2008); Randolph v. United States, 2008 U.S. Dist. LEXIS 101558 (M.D. Fla. Dec. 5, 2008).

The Whitley decision could prove to have broad ranging impact on individuals serving sentences under 18 U.S.C. § 924(c). This is especially true if they were also sentenced as armed career criminals. We can only speculate at this time what the full scope and impact of the Whitley decision will ultimately be. However, it could potentially benefit thousands of federal inmates.

    WASHINGTON (AP) — The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences. The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses. Roughly 3,800 inmates could be eligible for release from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences. The commissioners said the delay would give judges and prison officials time to deal with public safety and other issues. U.S. District Judge William Sessions of Vermont, a commission member, said the vote on retroactivity will have the most dramatic impact on African-American families. A failure to act may be taken by some as particularly unjust, Sessions said before the vote. The seven-member commission took note of objections raised by the Bush administration, but said there is no basis to treat convicts sentenced before the guideline change differently from those sentenced after the change. Inmate family representatives and other advocates had said a Supreme Court decision on Monday could only improve chances the commission would address the long-criticized disparity in sentences for crack and powder cocaine offenses. Crack is predominantly used by blacks; powder cocaine, predominantly by whites. The administration restated its opposition to the easing on Tuesday before the commission voted. Our position is clear, said Attorney General Michael Mukasey at a news conference. We oppose it. The attorney general said the convicted crack offenders were sentenced under an existing standard and to change that standard retroactively dismisses any mitigating factors the sentencing judge considered when deciding how long a prison term to set.

Want to post your thoughts about this article? Send your thoughts to: contactus@nlpa.com and be sure to reference: Blog Spot/Crack Article