Falling Through the Crack: How Courts Have Struggled to Apply the Crack Amendment to 'Nominal Career' and 'Plea Bargain' Defendants

Abstract

In 2007, after a decade of debate, the Federal Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of offenses involving crack cocaine. A few months later, the Sentencing Commission passed another amendment that rendered this decrease in sentence retroactive. Nearly three years after the passage and retroactive application of the Crack Amendment, however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission’s directives. The first circuit split emerged in regards to the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the Crack Amendment. The second circuit split emerged in regards to whether a subset of defendants who plead guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the Crack Amendment are eligible to receive the benefits of its retroactive application.

This Note first argues that the language of the applicable statutes and policy statements and specific actions taken by the Federal Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in sentence pursuant to the Crack Amendment. This Note then argues, however, that the lack of explicit directives from the Sentencing Commission with regards to the “plea bargain” defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the Crack Amendment. Because the Sentencing Commission instituted and rendered retroactive the Crack Amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the motive of the Amendment to exclude these defendants from its benefits.

Keywords: Freeman v. United States, crack cocaine sentencing, rule 11 plea bargain