May 2011

USSC to Hold Hearings on the Retroactivity of Cocaine Amendments

The U.S. Sentencing Commission is seeking public comment on whether or not recently proposed amendments to the federal sentencing guidelines should be made retroactive. Retroactivity of the amendments will be the topic of a June 1, 2011 hearing.

In March, the Commission adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The Commission voted to set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers.

As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity. Under the Fair Sentencing Act of 2010, the Commission now must consider whether this amendment to the federal sentencing guidelines should apply retroactively.

In other actions the Commission adopted amendments to:

• increase penalties for certain firearms offenses. For example, the Commission voted to provide increased penalties for certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.
• implement the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on the Commission’s website at www.ussc.gov.

The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.