Practical Guide to Crack Retroactivity
One of my hopes in creating this blog is that we will be able to collectively raise the bar for federal criminal defense practitioners by sharing pleadings and discussing developments in the law. One of the most important developments in federal criminal practice in recent years has been the retroactive application of the new crack cocaine amendments. As I have posted before, this retroactive application is a start at correcting one of the most serious injustices in our criminal justice system that has resulted in crack cocaine sentences that have simply been racially discriminatory by any fair minded standard.
Now that we have this new weapon, the question arises as to how this retroactive application will in practice work. I understand that Federal Defender offices, CJA Panel Representatives and CJA Resource Counsel are working with the Courts, U.S. Attorneys Offices and Probation Offices to attempt to develop plans for identifying clients to whom the new guidelines will apply.
So, what is the effect of the revision and what can we do? The Sentencing Commission amended the Drug Quantity Table in § 2D1.1 so that crack quantities triggering the five- and ten-year mandatory minimums are assigned base offense levels two levels lower than before.
The Commission similarly adjusted the drug threshold quantities with the net result being that for crack offenses, base offense levels across the board are two levels lower than they were before the amendment. See 72 Fed. Reg. 28,558, 28,571-73; U.S.S.G. App. C, Supp. Amend. 706; U.S.S.G. § 2D1.1 (2007).
For a reader friendly version of how to calculate the guidelines for your client, see the Federal Defender Memorandum here. Also, for those of us in the trenches, here is an excellent motion also available on the Federal Defender website that sets forth in exquisite detail the parameters of sentencing in this new scheme. Finally, as set forth here, counsel should press for the appointment of counsel for eligible defendants. See United States v. DeMott, 513 F.3d 55 (2nd Cir. 2008)(“District court violated Day’s right to be present at resentencing, his right to counsel at resentencing, and his right to notice that the court intended to impose an adverse non-Guidelines sentence”).
We hope that this post is of some assistance to the many of you in the trenches, who in doing this work, will be pressing for some measure of corrective justice for their clients. Thanks to the Federal Defender program for providing excellent guidance in this emerging area of the law.
