Appeals from the United States District Court for the District of Columbia (No. 93cr00188-01) (No. 94cr00369-01)
Before: Wald, Williams and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with 95-3123
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Tatel.
Dissenting Opinion filed by Circuit Judge Wald.
In establishing minimum mandatory penalties for drug offenses in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, Congress adopted a 100:1 ratio as between amounts of cocaine powder and cocaine base, generally known as crack. 21 U.S.C. Section(s) 841(a) & (b). The five-year mandatory minimum kicks in, for distribution or possession with intent to distribute, at 500 grams of cocaine powder but at only five grams of crack. 21 U.S.C. Section(s) 841(b). The ten-year minimum starts at five kilograms of cocaine or 50 grams of crack. Id. In its effort to grade penalties in accordance with the severity of the offense, as measured for drug offenses in part by the quantity of drugs, the Sentencing Commission incorporated the statutory ratio, both for lower and higher quantities. Thus drug convictions involving at least 500 but less than 2000 grams of cocaine, or at least 5 but less than 20 grams of crack, equally produce a base offense level of 26. U.S. Sentencing Guidelines ("U.S.S.G.") Section(s) 2D1.1. Absent any further adjustments, this would lead to a sentencing range of 63 months (just above the five-year statutory minimum) to 78 months. Id. at Ch. 5, Pt. A. The next quantitative step up, 2-to-3.5 kilograms of cocaine or 20-to-35 grams of crack, would take the offense to level 28 and a range of 78 to 97 months. And so on. The Commission explained that "[t]he base offense levels in Section(s) 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute.... Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses." U.S.S.G. Section(s) 2D1.1 (commentary, background).
The 100:1 ratio has been subject to severe attack, particularly because the use and marketing of cocaine powder and crack appear to follow a racial fault line, with blacks being characteristically subject to the far more draconian crack penalties. See, e.g., United States v. Thompson, 27 F.3d 671, 678 (D.C. Cir. 1994); United States v. Armstrong, 48 F.3d 1508, 1511-12, 1515 (9th Cir.), cert. granted, 116 S.Ct. 377 (1995). The widespread concern has led to an exchange between Congress and the Sentencing Commission, as yet inconclusive, but which appellants claim establishes that the flaws in the 100:1 ratio amount to a "mitigating circumstance ... not adequately taken into consideration" by the Sentencing Commission, thereby authorizing a departure under 18 U.S.C. Section(s) 3553(b) below the otherwise indicated Guidelines range.
In the Omnibus Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Commission to produce a report on the difference in penalty levels, along with any recommendations for change. Pub. L. No. 103-322, Section(s) 280006, 108 Stat. 2097. The Commission duly produced a report that-after reviewing the varieties of cocaine, examining the health effects of their use, describing how they are distributed, and attempting to measure their effect on crime-concluded, rather hesitantly and cautiously, that "a policymaker could infer that crack cocaine poses greater harms to society than does powder cocaine." Special Report to the Congress: Cocaine and Federal Sentencing Policy 195 (Feb. 1995).
But the Commission concluded that the 100:1 ratio was not logically supportable. Some of the concerns that had led to its adoption by Congress, such as the greater association with gun-carrying, violence, and offenders' prior criminal records, were the subject of enhancements under the Guidelines, making it inappropriate to use them also as a basis for greater severity for crack across the board. Id. at 196. Other concerns, however, such as crack's greater addictiveness and (because of its cheapness) availability to "a broader and more vulnerable part of the population," id. at 197, were not separate bases for adjustment, and accordingly remained grounds for some differential. Thus, although the Commission "strongly" recommended against retention of the 100:1 ratio, it declined to recommend any particular alternative. Id. at 198. In May 1995, however, the Commission bit the bullet and proposed a 1:1 ratio, also specifically suggesting that Congress drop the 100:1 ratio from its own mandatory minimums. See United States Sentencing Commission, Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25074, 25075-76 (1995). *fn1 Congress rejected the 1:1 ratio proposal on October 30, 1995, Pub. L. 104-38, 1, 109 Stat. 334, but at the same time told the Commission to try again, with the guidance (rather obvious under the circumstances) that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine...." Id. Section(s) 2(a)(1)(A).
Both appellants here pleaded guilty to offenses involving at least five but less than 20 grams of crack, leading to initial classification of their offenses at level 26. Both calculations were subject to further adjustments that are not in dispute here, so that, even though they were sentenced at the very bottom of their Guidelines range, both received sentences well above the five-year mandatory minimum; thus, despite Congress's retention of the 100:1 ratio in those minimums, for them a downward departure would have been feasible (i.e., would not have bumped into the mandatory floor) if it had been permissible under the Guidelines. Both were sentenced after the Commission made its 1:1 proposal to Congress but before the congressional rejection, and both asked the district judge (the same one, as it happened) to depart downwards on the theory that the Commission's report and recommendation proved the inadequacy of the Commission's prior "consideration" of the cocaine-crack relationship. The district court declined, expressly stating that it lacked authority, and reasoning that the proposed amendment was "not a law" but "just a recommendation to Congress." We agree that the Commission's and Congress's ongoing and inchoate efforts to alter the status quo do not give district Judges authority to depart.
District courts have statutory authority to depart from sentencing levels established in the Guidelines if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
18 U.S.C. Section(s) 3553(b); see also U.S.S.G. Section(s) 5K2.0 (policy statement). We reject the appellants' contention that the Commission's Special Report and later recommendation to Congress show that it did not "adequately" consider the cocaine-crack issue when it adopted the 100:1 ratio, as the term "adequately" is used in Section(s) 3553(b).
We question whether one could read "adequately" as used in Section(s) 3553(b) to permit courts to find the Commission's "consideration" of a factor inadequate unless the Commission has not officially considered the factor at all-"circumstances of a kind"-or has not addressed the extremity of the case-"or to a degree." In its statement of purposes for establishment of the guidelines and the Commission, interestingly, Congress in fact used a formula omitting the word "adequately" altogether, saying that its goal was to avoid sentencing disparities "while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." 28 U.S.C. Section(s) 991(b)(1)(B).
In any event the Commission has explained that it intends the district courts to "treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes," and to consider departing only if the court "finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." U.S.S.G. Ch. 1, Pt. A, Section(s) 4(b) (policy statement) (emphasis added); see also United States v. Dyce, No. 94-3171, slip op. at 5 (D.C. Cir. Mar. 8, 1996) (explaining atypicality requirement). This interpretation is an entirely reasonable reading of the statute. See United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991) (courts defer to reasonable interpretations by Sentencing Commission under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-45 (1984)); cf. Williams v. United States, 503 U.S. 193, 201 (1992) (policy statements limiting district court discretion to depart are "authoritative guide[s]" to meaning of Guidelines). *fn2 In United States v. Rivera, 994 F.2d 942 (1st Cir. 1993), then-Chief Judge Breyer elaborated on the link between atypicality and the definition of "kind" and "degree":
The district court's decision that circumstances are of a "kind" or "degree" that warrant departure will not involve a "quintessentially legal" interpretation of the words of a guideline, but rather will amount to a judgment about whether the given circumstances, as seen from the district court's unique ...