	Background

In its 2005 opinion United States v. Booker , the U.S. Supreme Court declared that the once-binding federal sentencing guidelines (the Guidelines) set by the United States Sentencing Commission are now only advisory, in order to be compatible with the Sixth Amendment to the Constitution. The Supreme Court resolved that issue in its 2007 opinion Kimbrough v. United States , by holding that a federal court may impose a sentence below that called for under the Guidelines' then-existing 100:1 ratio, based on its conclusion that the ratio is greater than necessary or may foster unwarranted disparity. The judge had discretion to sentence the defendant but, with little ground for departure, only within the narrow sentencing range that the Guidelines provided for each offense level. § 841(b)(1)(A)(iii). Pursuant to 18 U.S.C. An appellate court held that the federal courts are not compelled to lower a sentence recommended by the Guidelines based on the sentencing differential for crack cocaine versus powder cocaine. In some cases, after considering the factors set forth in 18 U.S.C. 2007 Amendment of the Sentencing Guidelines

In May 2007, the United States Sentencing Commission submitted proposed amendments to the Guidelines (including those applicable in Kimbrough ) that essentially did away with the 100:1 ratio for purposes of the Guidelines (except at the point at which the statutory mandatory minimums are triggered). It also recommended that Congress raise the thresholds for the statutory mandatory minimums for trafficking in crack, thereby eliminating the statutory 100:1 ratio. The drug quantity table that is part of the drug sentencing guideline, U.S.S.G. Prior to the amendments effective on November 1, 2007, each of the steps reflected a 100:1 ratio between crack and powder cocaine; for instance, offenses involving either more than 150 kilograms of powder cocaine or more than 1.5 kilograms of crack cocaine were each assigned a step (1) offense level of 38. As a consequence, the 100:1 ratio has disappeared from the Guidelines (although the statutory 100:1 ratio in the quantities of powder cocaine and crack cocaine that trigger the mandatory minimum penalties still remains). Case Law Applying the Retroactive Crack Cocaine Amendments

In general, a federal court "may not modify a term of imprisonment once it has been imposed." However, a court may not reduce a sentence below a statutory mandatory minimum. § 3553(a):
the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner; the sentencing range established by the Commission; any pertinent policy statement issued by the Commission regarding application of the guidelines; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense. The Sentencing Commission's policy statement governing reduction of terms of imprisonment based on amended Guidelines ranges is Sentencing Guidelines § 1B1.10. ... Additionally, the remedial holding in Booker invalidated only 18 U.S.C. On June 17, 2010, the Supreme Court issued its opinion in Dillon , in which it sided with the position of the United States. Legislation in the 111th Congress

Several bills have been introduced concerning cocaine sentencing; to date, the Congress has passed one into law: S. 1789 (Fair Sentencing Act of 2010). Introduced by Senator Richard Durbin, S. 1789 will, among other things, increase the threshold amount of crack cocaine necessary to trigger the mandatory minimum penalties to 28 grams (from 5 grams for the current 5-year sentence) and 280 grams (from 50 grams for the current 10-year sentence). This change will reduce the statutory 100:1 ratio to 18:1. The bill also eliminates the 5-year mandatory minimum for simple possession of crack cocaine. President Obama signed the bill into law on August 3, 2010 ( P.L. 111-220 ). 18 (Powder-Crack Cocaine Penalty Equalization Act of 2009), which would equalize the triggering quantity for the mandatory minimum sentences for cocaine offenses at the crack cocaine levels (5 grams of powder cocaine would result in a 5-year sentence and 50 grams a 10-year sentence). 2178 (Crack-Cocaine Equitable Sentencing Act of 2009), which would amend the Controlled Substances Act and the Controlled Substances Import and Export Act to treat 50 grams of crack the same as 50 grams of other forms of cocaine; 5 grams of crack the same as 5 grams of other forms of cocaine, and eliminate the 5-year mandatory minimum for simple possession of crack cocaine.
Pursuant to the Anti-Drug Abuse Act of 1986, Congress established basic sentencing levels for crack cocaine offenses. Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in the quantities of powder cocaine and crack cocaine that trigger a mandatory minimum penalty. As amended, 21 U.S.C. § 841(b)(1)(A) required a mandatory minimum 10-year term of imprisonment and a maximum life term of imprisonment for trafficking offenses involving 5 kilograms of cocaine or 50 grams of cocaine base. In addition, 21 U.S.C. § 841(b)(1)(B) established a mandatory 5-year term of imprisonment for offenses involving 500 grams of cocaine or 5 grams of cocaine base. 21 U.S.C. § 844(a) called for a 5-year mandatory minimum punishment for simple possession of crack cocaine. Although the Fair Sentencing Act of 2010 revises these penalties (as discussed below), there still remains a disparity in the threshold amount of powder cocaine and crack cocaine that triggers the mandatory minimums in 21 U.S.C. § 841.
Federal sentencing guidelines (the Guidelines) established by the U.S. Sentencing Commission reflect the statutory differential treatment of crack and powder cocaine offenders. Until 2005, the Guidelines were binding on federal courts: the judge had discretion to sentence a defendant, but only within the narrow sentencing range that the Guidelines provided. In its 2005 opinion United States v. Booker, the Supreme Court declared that the Guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the Guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors (which include the need to avoid undue sentencing disparity).
In the aftermath of Booker, some judges, who did not believe that crack cocaine is 100 times worse than powder cocaine, imposed lower sentences on crack cocaine offenders than the ones recommended by the Guidelines. In 2007, the Supreme Court in Kimbrough v. United States upheld this practice, ruling that a court may impose a below-the-Guidelines sentence based on its conclusion that the 100:1 ratio is greater than necessary or may foster unwarranted disparity.
Also in 2007, the Sentencing Commission revised the Guidelines by lowering the base offense level for crack cocaine offenses by two levels, thereby eliminating the 100:1 ratio for future sentencing guideline purposes (except at the point at which the statutory mandatory minimums are triggered). In addition, the Sentencing Commission decided to make these amendments retroactively applicable, thus allowing eligible crack cocaine offenders who were sentenced prior to November 1, 2007, to petition a federal judge to reduce their sentences. On June 17, 2010, the Supreme Court decided Dillon v. United States, in which it held that Booker does not apply in a sentence modification proceeding that is based on the retroactive crack cocaine amendment to the Guidelines; thus, district courts do not have the authority to further reduce a crack cocaine offender's sentence in such proceedings below the retroactive, amended Guidelines range.
The Fair Sentencing Act of 2010 (S. 1789) changes the statutory 100:1 ratio in crack/powder cocaine quantities that trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1). President Obama signed the bill into law on August 3, 2010 (P.L. 111-220). S. 1789 reduces the statutory 100:1 ratio to 18:1, by increasing the threshold amount of crack cocaine to 28 grams (for the 5-year sentence) and 280 grams (for the 10-year sentence). S. 1789 also eliminates the 5-year mandatory minimum for simple possession of crack cocaine. Other bills introduced in the 111th Congress would completely eliminate the statutory disparity in cocaine sentencing, including H.R. 18, H.R. 265, H.R. 1459, H.R. 2178, and H.R. 3245. Another bill, H.R. 1466, would repeal all statutory mandatory minimums for drug offenses.