1 U.S. Sentencing Commission Preliminary Crack Retroactivity Data Report Fair Sentencing Act July 2013 Data
2 Introduction As part of its ongoing mission, the United States Sentencing Commission provides Congress, the judiciary, the executive branch, and the general public with data extracted from and based on sentencing documents submitted by courts to the Commission. 1 Data is reported on an annual basis in the Commission s Annual Report and Sourcebook of Federal Sentencing Statistics. 2 The Commission also reports preliminary data for an on-going fiscal year in order to provide real-time analysis of sentencing practices in the federal courts. Since 2005, the Commission has published a series of quarterly reports that are similar in format and methodology to tables and figures produced in the Sourcebook of Federal Sentencing Statistics or in the Commission s Final Report on the Impact of the United States v. Booker on Federal Sentencing. 3 The quarterly reports contain cumulative data for the on-going fiscal year (i.e., data from the start of the fiscal year through the most current quarter). This report provides data concerning the retroactive application of the guideline amendment implementation of the Fair Sentencing Act (FSA), Pub. L. No , signed into law on August 3, The FSA increased the quantities of crack cocaine that trigger the five and ten-year statutory mandatory minimum penalties from five grams to 28 grams for fiveyear mandatory minimums and from 50 to 280 grams for ten-year mandatory minimums and eliminated the five-year mandatory minimum for simple possession of crack cocaine. Significantly, the FSA gave the Commission emergency amendment authority to temporarily change the guidelines to implement the statutory changes and to add certain enhancements and reductions to the guidelines. On October 15, 2010 the Commission voted to promulgate Amendment 748, the emergency amendment which took effect on November 1, Among other changes, Amendment 748 made conforming changes to the guidelines to adjust the crack cocaine quantity levels in the Drug Quantity Table in 2D1.1 to the new statutory minimums, added new aggravating and mitigating factors in drug trafficking cases, and reflected the elimination of the statutory five-year mandatory minimum penalty for simple possession of crack cocaine. On April 28, 2011, the Commission submitted to Congress, Amendment 750, the permanent guideline amendment implementing the FSA. The three-part amendment (A, B & C) 1 In each felony or Class A misdemeanor case sentenced in federal court, sentencing courts are required to submit the following documents to the Commission: the judgment and commitment order, the statement of reasons, the plea agreement (if applicable), the indictment or other charging document, and the presentence report. See 28 U.S.C. 994(w). 2 See the Commission s website, for electronic copies of the Annual Report and Sourcebook of Federal Sentencing Statistics. 3 See for an electronic copy of the Commission s Final Report on the Impact of United States v. Booker on Federal Sentencing.
3 re-promulgated as permanent the temporary emergency amendment and took effect on November 1, On June 30, 2011, the Commission voted to promulgate Amendment 759 which added Parts A and C of Amendment 750 as amendments listed in 1B1.10 (Reduction in Term of Imprisonment as a Result of an Amended Guideline Range)(Policy Statement) that apply retroactively. Part A contained the changes to the crack cocaine quantity levels in the Drug Quantity Table in 2D1.1. Part C deleted the cross reference in 2D2.1 to reflect the elimination of the statutory minimum for simple possession of crack cocaine. The Commission voted to make Amendment 759 effective November 1, 2011, the same date that Amendment 750 took effect. The data in this report represents information concerning motions decided through June 25, 2013 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by June 30, Users of this information are cautioned that the data are preliminary only and subject to change as the Commission receives, analyzes, and reports on additional cases. In particular, the reader is cautioned with respect to drawing conclusions based on data concerning the denial of motions for sentence reduction pursuant to the crack cocaine amendment, as the judicial districts are employing various methods to prioritize the review of these motions. For example, in many districts, contested motions have not been decided by the court. Consequently, the data the Commission has received to date concerning cases in which the motion for a sentence reduction was denied may not be representative of the decisions that ultimately may be made in all districts or the nation as a whole.
4 Table 1 GEOGRAPHICAL DISTRIBUTION OF APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT BY DISTRICT Granted Denied Granted Denied District N N % N % District N N % N % TOTAL 11,937 7, , Eastern Virginia Northern Indiana Western North Carolina Eastern Louisiana Western Virginia Eastern New York South Carolina Western Missouri Western Texas Western Wisconsin Southern Georgia Western Pennsylvania Puerto Rico Western Tennessee Northern Florida Northern New York Southern Alabama Eastern Pennsylvania Eastern North Carolina Northern Mississippi Middle North Carolina Western Michigan Northern Iowa Massachusetts Eastern Missouri District of Columbia Western Louisiana Middle Alabama Northern West Virginia Eastern Wisconsin Eastern Texas Maine Middle Florida Eastern Kentucky Western Kentucky Southern New York Southern Iowa Colorado Northern Texas Western Arkansas Middle Pennsylvania Connecticut Central Illinois Central California Nebraska New Hampshire Southern Illinois Northern Oklahoma Maryland Northern California Minnesota Northern Georgia Southern Ohio Alaska Eastern Tennessee Middle Tennessee Southern Texas Eastern California Northern Alabama Western Washington Northern Ohio Rhode Island Northern Illinois Eastern Oklahoma Southern West Virginia New Mexico Southern Indiana Delaware Southern Florida South Dakota Middle Louisiana Nevada Middle Georgia Utah Western Oklahoma Wyoming Kansas Oregon Southern Mississippi Vermont Western New York Eastern Washington Eastern Michigan Southern California New Jersey Hawaii Eastern Arkansas Note: Some districts may not have reported all denials of motions seeking application of the retroactive crack cocaine amendment.
5 Table 2 GEOGRAPHICAL DISTRIBUTION OF APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT BY JUDICIAL CIRCUIT Circuit N Granted Denied TOTAL 11,937 7,317 4,620 FOURTH CIRCUIT 3,489 2,038 1,451 ELEVENTH CIRCUIT 1, FIFTH CIRCUIT 1,619 1, EIGHTH CIRCUIT 1, SIXTH CIRCUIT SEVENTH CIRCUIT FIRST CIRCUIT THIRD CIRCUIT SECOND CIRCUIT TENTH CIRCUIT NINTH CIRCUIT D.C. CIRCUIT
6 Fiscal Total Granted Denied Year N N % N % Total 11,877 7, , , ,726 1, ,665 1, , , Of the 11,937 cases, 60 were excluded from this analysis because the case cannot be matched with an original case in the Commission's records. Table 3 APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT BY YEAR OF ORIGINAL SENTENCE 1
7 Table 4 ORIGIN OF GRANTED MOTION FOR SENTENCE REDUCTION DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT 1 Defendant Director BOP 2 Court CIRCUIT N N % N % N % TOTAL 6,709 5, , D.C. CIRCUIT FIRST CIRCUIT SECOND CIRCUIT THIRD CIRCUIT FOURTH CIRCUIT 1,920 1, FIFTH CIRCUIT SIXTH CIRCUIT SEVENTH CIRCUIT EIGHTH CIRCUIT NINTH CIRCUIT TENTH CIRCUIT ELEVENTH CIRCUIT Of the 7,317 cases in which the court granted a motion for a sentence reduction due to retroactive application of the crack cocaine amendment, 614 were excluded from this analysis because the information received by the Commission prevented a determination of motion origin. Additionally, courts may cite multiple origins for a motion; consequently, the total number of origins cited generally exceeds the total number of cases. In this table, 6,709 origins were cited for the 6,703 cases. 1 In two cases, documents provided to the Commission indicated that the Bureau of Prisons Director made a motion. Those cases appear to be clerical errors. 2
8 Table 5 DEMOGRAPHIC CHARACTERISTICS OF OFFENDERS CONSIDERED FOR SENTENCE REDUCTION DUE TO APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT Granted Denied 1 Race/Ethnicity Total N % N % White Black 7,155 6, Hispanic Other Total 8,283 7,282 1,001 Citizenship U.S. Citizen 7,964 7, Non-Citizen Total 8,258 7,258 1,000 Gender Male 7,926 6, Female Total 8,309 7,306 1,003 Average Age The 1,003 offenders represented in this column are those whom the Commission previously identified as eligible to seek a sentence reduction but whose petition for a reduction was denied by the court. Of the remaining 3,617 cases in which the court denied the request for a sentence reduction, 1,309 were excluded from this analysis because the offender was not previously identified as eligible to seek a sentence reduction for one or more reasons (see 'Analysis of the Impact of the Guideline Implementation of the Fair Sentencing Act If Made Retroactive' (May 20, 2011) available at Of the remaining 2,308 cases, 1,722 were excluded from this analysis because the offender had been identified as released or projected to be released prior to November 1, 2011 and so was excluded from the Commission's prior analysis of eligible offenders, 206 were excluded from this analysis because the offender was not sentenced for a drug offense, 354 were excluded from this analysis because crack cocaine was not involved in the offense, and 26 were excluded from this analysis because the reason for the court's decision cannot yet be determined.
9 Table 6 SELECTED SENTENCING FACTORS FOR OFFENDERS WHO WERE CONSIDERED FOR SENTENCE REDUCTION DUE TO APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT All Cases Granted Denied 1 % % % Weapon Weapon Specific Offense Characteristic Firearms Mandatory Minimum Applied Safety Valve Guideline Role Adjustments Aggravating Role (USSG 3B1.1) Mitigating Role (USSG 3B1.2) Obstruction Adjustment (USSG 3C1.1) Sentence Relative to the Guideline Range Within Range Above Range Below Range Criminal History Category I II III IV V VI The 1,003 offenders represented in this column are those whom the Commission previously identified as eligible to seek a sentence reduction but whose petition for a reduction was denied by the court. Of the remaining 3,617 cases in which the court denied the request for a sentence reduction, 1,309 were excluded from this analysis because the offender was not previously identified as eligible to seek a sentence reduction for one or more reasons (see 'Analysis of the Impact of the Guideline Implementation of the Fair Sentencing Act If Made Retroactive' (May 20, 2011) available at Of the remaining 2,308 cases, 1,722 were excluded from this analysis because the offender had been identified as released or projected to be released prior to November 1, 2011 and so was excluded from the Commission's prior analysis of eligible offenders, 206 were excluded from this analysis because the offender was not sentenced for a drug offense, 354 were excluded from this analysis because crack cocaine was not involved in the offense, and 26 were excluded from this analysis because the reason for the court's decision cannot yet be determined.
10 Table 7 POSITION OF WITHIN RANGE SENTENCES FOR OFFENDERS GRANTED A SENTENCE REDUCTION DUE TO APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT 1 ORIGINAL SENTENCE CURRENT SENTENCE N % N % TOTAL 2, , Guideline Minimum 1, , Lower Half of Range Midpoint of Range Upper Half of Range Guideline Maximum Of the 7,317 cases in which a motion for retroactive application of the crack cocaine amendment was granted, 3,873 received a sentence within the guideline range at 1 both their original and current sentencing. Of these, 1,549 cases were excluded from this analysis due to one or more of the following reasons: the case is missing sentence length or guideline relevant statutory information from the new sentence (930), the case is missing sentence length or guideline relevant statutory information from the original sentence (539), the new sentence had a guideline minimum and maximum that were identical (386) or the original sentence had a guideline minimum and maximum that were identical (58).
11 Table 8 DEGREE OF DECREASE IN SENTENCE DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT 1 Average Average Current New Average Decrease Average Percent CIRCUIT Sentence Sentence in Months From Decrease From District N in Months in Months Current Sentence Current Sentence TOTAL 6, D.C. CIRCUIT District of Columbia FIRST CIRCUIT Maine Massachusetts New Hampshire Puerto Rico Rhode Island SECOND CIRCUIT Connecticut New York Eastern Northern Southern Western Vermont THIRD CIRCUIT Delaware New Jersey Pennsylvania Eastern Middle Western Virgin Islands FOURTH CIRCUIT 1, Maryland North Carolina Eastern Middle Western South Carolina Virginia Eastern Western West Virginia Northern Southern
12 Table 8 (continued) DEGREE OF DECREASE IN SENTENCE DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT Average Average Current New Average Decrease Average Percent CIRCUIT Sentence Sentence in Months From Decrease From District N in Months in Months Current Sentence Current Sentence FIFTH CIRCUIT Louisiana Eastern Middle Western Mississippi Northern Southern Texas Eastern Northern Southern Western SIXTH CIRCUIT Kentucky Eastern Western Michigan Eastern Western Ohio Northern Southern Tennessee Eastern Middle Western SEVENTH CIRCUIT Illinois Central Northern Southern Indiana Northern Southern Wisconsin Eastern Western EIGHTH CIRCUIT Arkansas Eastern Western Iowa Northern Southern Minnesota Missouri Eastern Western Nebraska North Dakota South Dakota
13 Table 8 (continued) DEGREE OF DECREASE IN SENTENCE DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT Average Average Current New Average Decrease Average Percent CIRCUIT Sentence Sentence in Months From Decrease From District N in Months in Months Current Sentence Current Sentence NINTH CIRCUIT Alaska Arizona California Central Eastern Northern Southern Guam Hawaii Idaho Montana Nevada Northern Mariana Islands Oregon Washington Eastern Western TENTH CIRCUIT Colorado Kansas New Mexico Oklahoma Eastern Northern Western Utah Wyoming ELEVENTH CIRCUIT Alabama Middle Northern Southern Florida Middle Northern Southern Georgia Middle Northern Southern Of the 11,937 cases, 60 were excluded from this analysis because the case cannot be matched with an original case in the Commission's records and 4,594 were excluded from this analysis because the court denied the motion for a sentence reduction. Of the remaining 7,283 cases, 811 were excluded from this analysis because the offender was sentenced to time served and the resulting term of imprisonment could not be determined from the records received by the Commission.
14 Table 9 REASONS GIVEN BY SENTENCING COURTS FOR DENIAL OF MOTION 1 REASONS N % Offense does not involve crack cocaine Case does not involve crack cocaine Sentence is determined by a non-drug guideline Offender not eligible under 1B1.10 3, Statutory mandatory minimum controls sentence 1, Career Offender or Armed Career Criminal provisions control sentence Guideline range does not change Base offense level does not change (due to multiple drugs) Case involved more than 4.5 kg of crack cocaine Case involved more than 8.4 kg of crack cocaine Original sentence has been served Statutory maximum sentence is less than applicable guideline range Base offense level is Denied on the merits Offender has already benefitted from departure or variance U.S.C. 3553(a) factors Offender subject to guideline reduction at original sentencing Protection of the public Post-sentencing or post-conviction conduct Already received crack reduction Denial because of binding plea Previous variance or departure for crack/powder disparity No reason provided/other reason No reason provided Other Courts may cite multiple reasons for denying a motion; consequently, the total number of reasons cited generally exceeds the total number of cases. In this table, 5,220 reasons were cited for the 4,620 cases. Of the 519 cases in which the court did not give a reason for the denial, 431 were previously identified as ineligible by the Commission for sentence reduction ( see 'Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive' (May 20, 2011) available at Of those 431 cases, a statutory mandatory minimum controlled the sentence in 26 cases, in 13 cases the quantity of crack cocaine in the case exceeded 8.4 Kg, in 29 cases the sentence was determined by a non-drug guideline, in 22 cases no change in the guideline range was found, in 63 cases crack cocaine was not involved, in 58 cases Career Offender or Armed Career Criminal provisions controlled the sentence, in 209 cases the offender was predicted to have been released, in five cases the Bureau of Prisons informed the Commission that the offender was no longer serving time for the instant offense, in one case the base offense level was 12 or lower, and in five cases there was no record on file with the Bureau of Prisons.
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