Offenders to Get Review in Light of New Sentencing Guidelines

Pennsylvania Law Weekly
July 19, 2011

Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.

In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.

Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.

A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.

However, the U.S. Supreme Court disagreed.

According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.

In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.

"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."

Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.

The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.

This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.

The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.

The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. 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. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.

A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.

The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .

Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.