Tuesday, December 02, 2008

Flexibility of the (2007?) Marijuana Equivalency Table

In United States v. Brown, Case No. 07-5465, the Sixth Circuit amended its prior opinion after the government moved for rehearing. Defendant Brown had pled guilty to possessing both crack and powder cocaine. In the original opinion, the panel remanded Brown for resentencing to allow the district court to resentence Brown with the benefit of the November 1, 2007 Amendments to the Sentencing Guidelines regarding crack cocaine calculations.

The government petitioned for rehearing and argued remand was unnecessary because remand would not lower Brown’s sentencing range. In response, the Sixth Circuit issued an amended opinion, addressing the process by which offenses involving crack cocaine and another drug require conversion to marijuana to calculate the offense level. The panel found the conversion table included in the 2007 Amendments generally provides the intended two-level decrease in multiple drug situations, but, sometimes, inexplicably results in a greater offense level, even in cases involving inconsequential amounts of a second drug.

In Brown’s case, under the 2007 Amendments, his offense level for possessing 15.2 grams would have been 24. However, when crack cocaine is converted to marijuana under the equivalency table accompanying the 2007 Amendments, Brown’s resulting offense level would have been 26 – exactly what he would have received under the prior guidelines – even before adding the converted amount of the powder cocaine. This result would have denied Brown the benefit of the 2007 Amendments, and struck the panel as particularly arbitrary in light of the small amount of powder cocaine he possessed (which of course triggered the conversion in the first place) and inconsistent with both the substance and the policy of the 2007 Amendments.

The panel ultimately held "the marijuana equivalency table used in determining the offense level for crimes involving crack and another drug are not controlling for purposes of 18 U.S.C. § 3582(c)." The panel also noted the 2007 Amendments create fact intensive anomalies that are best considered on an individualized basis by the sentencing court.

1 comment:

Amy B. Cleary said...

Jennifer Coffin has kindly offered the following edification on this decision:

Although the decision came down in favor of Mr. Brown, it appears that Judge Martin erroneously relied on the 2007 crack amendments that created the math anomaly when he held that the marijuana equivalency table is "flexible." Although the original unpublished opinion recognized that the math anomaly had been corrected in May 2008, see USSG App. C, Amend. No. 715 (May 1, 2008). the amended opinion removes that language and refers to the no-longer-existent special marijuana equivalency table at Application Note 10(D) for crack offenses involving other controlled substances. It should be noted that in arguing that Mr. Brown's guideline range was not reduced under the 2007 crack amendments in its petition for rehearing (filed in November 2008), the government failed to acknowledge the May 2008 amendment fixing the math anomaly.

The government has since filed a second motion for rehearing, sort of conceding that it had erroneously relied on a marijuana equivalency table under 2D1.1 comment. (n.10(D)) table that no longer exists. Does it express concern that the court filed a published opinion based on a mistake (perpetuated by the government) about the current status of the crack amendments? No! It now argues that Mr. Brown is not entitled to a reduction because he was sentenced pursuant to a binding plea agreement. The government did not make this argument in its first motion for rehearing.

So basically the government is ambushing Mr. Brown with a new argument at a stage in the proceedings that do not allow for an answer. And this is after it erroneously argued (and possibly convinced the court) that Mr. Brown's guideline range would not be reduced under the crack amendments.

The government has clumsily conceded that his guideline range would be lower under the crack amendments, yet it now insists that he be stuck with the "bargain" that he struck based on an unfair guideline, knowing that the Commission has since said that the sentence he agreed to is greater than necessary to achieve the purposes of sentencing and is only a "partial remedy."