January 19, 2010, the Supreme Court GVR'ed in Vazquez v. United States, No. 09–5370, 2010 U.S. LEXIS 736 (2010).
The Court remanded because the government’s position on the matter required reconsideration by the Court of Appeals. The Eleventh Circuit had held that the career offender guideline is distinguishable from the cocaine guideline and that this distinction gave the former guideline additional weight. United States v. Vazquez, 558 F.3d 1224, 1229 (11th Cir. 2009). Distinction was supposed to be based on Sentencing Commission policy vs. statutory directive. The Court remanded for reconsideration. The government conceded in its brief that appellate court had erred.
Also, I may have posted before about United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009), but it is worth repeating. Section 4B1.1(b) relies on the statutory maximum sentence to determine offense level. When crack cocaine is involved in an offense, the statutory maximum sentence is driven by the crack—powder sentencing disparity. Michael recognizes this issue and leaves the door open to this attack on the guideline.
The impact of the disparity in career offender cases is recognized by jurists in other circuits beyond the Sixth. The Eighth Circuit implicitly recognized the impact of the disparity in United States v. Clay, 524 F.3d 877, 878 (8th Cir. 2008). That court noted, in the career offender sentencing context, that "the district court was authorized to consider the disparity between crack and powder cocaine sentences." Id. In United States v. Welton, 583 F.3d 494, 502 (7th Cir. 2009) (Williams, J., dissenting), the dissent found that "[t]he disparity between the crack and powder cocaine advisory ranges in both §§ 2D1.1 and 4B1.1 originates from the same statute, and I see no functional difference between the two guidelines." The government has, on occasion, conceded that sentencing courts "are free to consider the crack cocaine versus powder cocaine disparity when sentencing defendants who are career offenders." Id. at 503.