Rhode Island is at the center of a dispute over how to sentence people convicted of offenses involving crack versus powder cocaine.

01:00 AM EST on Sunday, December 18, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Rhode Island has become "ground zero" in a national battle about the disparity in prison sentences for crack versus powder cocaine, a federal judge says.

The U.S. Supreme Court in January ruled that sentencing guidelines are no longer mandatory. And when the 1st U.S. Circuit Court of Appeals heard oral arguments in a pair of Rhode Island cases on Dec. 7, it became the first federal appeals court in the country to deal with the crack/powder disparity in a sentence imposed under advisory guidelines.

Four other circuit courts have similar cases pending, but the 1st Circuit is the first to get to the oral argument stage, according to Circuit Judge Bruce M. Selya, the only Rhode Islander on the Boston-based appeals court.

In both of the Rhode Island cases, Chief U.S. District Judge Ernest C. Torres rejected sentencing guidelines that treat 500 grams of powder cocaine as the equivalent of 5 grams of crack. Torres called the 100-to-1 ratio "unreasonable," saying the 20-to-1 ratio recommended by the U.S. Sentencing Commission makes more sense.

But federal prosecutors in Rhode Island are challenging the sentences that Torres imposed on Sambath Pho and Shawn Lewis, and they're appealing a sentence that U.S. District Judge William E. Smith imposed on Joshua Perry in a similar case, which has attracted attention because of Smith's 71-page sentencing memorandum.

During the oral arguments in Boston for the Pho and Lewis cases, Selya said, "The federal courts for the last 20 years have been embroiled in what has been close to guerrilla warfare about the use of guidelines in sentencing."

And, Selya said, "we know now that with Judge Smith's opinion in Perry and with Judge Torres' actions in this case, that Rhode Island has become ground zero in this guerrilla war."

In ruling on United States v. Booker, the Supreme Court said sentencing guidelines must be advisory rather than mandatory to comply with jury-trial rights protected by the Sixth Amendment.

Selya said it's important to determine the correct process for calculating sentences now that the guidelines are advisory. "We owe it to the district courts to tell them what the process is because they are obviously doing different things in Rhode Island as opposed to Massachusetts, for example," he said.

"I don't pretend we're the seat of all reason," Selya added. "We just happen to have the last word on this, at least until the Supreme Court speaks again."

Selya asked if it would be "a lawful determination in the post-Booker world" for a judge to look at a sentencing guideline and say "it's inappropriate, it's misguided, it's too Draconian, I won't follow it, period."

Edward C. Roy Jr., the supervising assistant federal defender for Rhode Island, replied, "Yes, if it's grounded on an expert report from the body that Congress has delegated part of its sentencing policymaking authority to, as it did in this case. Judge Torres clearly considered the Sentencing Commission report in both cases. He spoke at length about the findings and why they made sense."

Roy was referring to a 2002 U.S. Sentencing Commission report that said the 100-to-1 ratio overstates the seriousness of most crack cocaine offenses and recommended that Congress adopt a 20-to-1 ratio.

Selya said Congress rejected the Sentencing Commission's recommendation.

Assistant Federal Defender Kevin J. Fitzgerald disagreed, saying, "They haven't acted on it yet."

"Maybe," Selya replied. "But the result is the same."

The 100-to-1 ratio does not mean that prison sentences for crack are 100 times longer than those for powder. Rather, the ratio relates to the drug weight that triggers mandatory minimum sentences. For example, selling 5 grams of crack carries a mandatory minimum of five years, while it takes 500 grams of powder cocaine to trigger the same five-year minimum. (A packet of sugar weighs about 1 gram.)

FEDERAL PROSECUTORS say judges are not free to adopt their own across-the-board crack/powder ratios because that would override Congress' judgment on how severely to punish crack offenses and because that could result in "wildly disparate sentences."

Assistant U.S. Attorney Donald C. Lockhart said the District Court in Rhode Island is the only one in the 1st Circuit that's substituting for the 100-to-1 ratio. "So already we have, at a minimum, a two-tiered system within the circuit where some judges are adhering to the 100-to-1 ratio prescribed by Congress [while] most if not all of the District of Rhode Island judges have gone to the 20-to-1 ratio," he said.

Lockhart said judges who reject the 100-to-1 ratio "in wholesale fashion" are not meeting the requirement for "meaningful consultation" with the sentencing guidelines. "It is not enough to simply acknowledge their existence but say: I'm chucking them out in every single case," he said. "In this case, we have not just mere disagreement with the guidelines but disagreement with the legislative policy that is embodied in the statute."

Circuit Judge Kermit V. Lipez, of Maine, asked what a court is to do if it believes "that applying the guidelines with respect to crack -- this 100-to-1 ratio -- almost inevitably results in a sentence that is more than is necessary to address the other goals of sentencing in the case before it?"

Lockhart said, "It's not totally unable to factor it into the analysis in this respect: Judge Smith in the Perry decision starts off at one point on what we feel is the right track of analysis. He conducts a guideline analysis, he establishes the benchmark, and . . . begins comparing the case of Joshua Perry, a smaller time crack dealer, with another case that he had sentenced a few months earlier involving a defendant by the name of Shawn Montegio, a very large powder dealer."

Lockhart said Smith then "went through a series of comparisons which distinguished the two cases and which gave the judge the authority, we believe, to impose a below-guidelines sentence." He said the judge wasn't free to reject the 100-to-1 ratio across-the-board. But, he said, "There are other proxies, perhaps, that a District Court might consider that indirectly get at the legitimacy of the 100-to-1 ratio."

Lipez challenged the idea that judges will wind up adopting a wide range of crack/powder ratios. "In fact, haven't judges in this circuit and elsewhere been turning to that 20-to-1 ratio that the Sentencing Commission recommended as a more substantive choice?" he asked. "In other words, your concerns seem to belie what the experience has been. Because they are relying on the commission, they are not being arbitrary or ad hoc or personal."

Lockhart said, "There is no principled reason why another ratio, such as 10-to-1, 1-to-1 or 5-to-1," should not be adopted because that decision "is so policy driven." And, he said, "the policy judgment should be in Congress' lap."

LOCKHART SAID that if the 1st Circuit upholds Torres' sentences without saying the 20-to-1 ratio is "the only acceptable alternative ratio," then a federal judge in Maine, for example, could decide that the 20-to-1 ratio is still too harsh and cite the Sentencing Commission's earlier recommendation of a 1-to-1 ratio.

The debate stems from sentences that Torres imposed earlier this year. Pho pleaded guilty in June to possessing more than 5 grams of cocaine base with intent to distribute. Guidelines called for 87 to 108 months, but Torres sentenced him to 64 months. Lewis pleaded guilty in June to possessing more than 50 grams of cocaine base with intent to distribute, and possessing two handguns while a convicted felon. Guidelines called for 235 to 293 months, but Torres sentenced him to 188 months.

Roy, who represents Pho, said, "I'm here to defend an appropriate use of judicial discretion by a conscientious judge who applied the law in arriving at the sentences that were imposed in this case."

Selya asked him, "Why does the 20-to-1 ratio make any more sense than the 5-to-1 ratio, which was recommended earlier?"

Roy replied, "It makes sense, your honor, because the Sentencing Commission has established it based on many, many years of experience in reviewing the fallout [from the 100-to-1 ratio]."

Selya said, "I'll make you a very plausible argument that they established 20-to-1 because of the political reality that they couldn't get 5-to-1 past the Congress."

Roy said, "That's probably true, judge."

Selya said, "Of course it's true. But that's the slippery slope you want us to embark on, Mr. Roy."

Roy urged the court to look at the need to avoid disparity in sentences for defendants convicted of similar conduct, saying, "If defendants are convicted for cocaine powder and cocaine base, that's similar conduct."

Selya said, "If I ask Mr. Lockhart to play jack-in-the-box and jump up, he would say Congress has said crack offenders are different than powder cocaine offenders because crack is more addictive, it's more easily available, harder to police -- all the reasons that are throughout the congressional debates on the mandatory minimums."

Roy said, "The response is Congress' judgment is one part of the equation. And the second part of the equation is that a disparity exists that is well documented and the commission has issued a report that supports the disparity and Judge Torres looked at that."

Lipez told Fitzgerald, "It's hard to imagine defending a system where District Court judges would be free to look generally at guidelines and say: I don't like that one, I'm not going to apply it.

"But is there an argument that this is a very special case -- this crack/powder disparity -- that has been closely studied by the Sentencing Commission and they've taken a position . . . that the present treatment is indefensible?" Lipez asked Fitzgerald. "I guess you would probably agree that this might be a special case that doesn't pose the spectacle of the courts just roaming through the guidelines and rejecting them willy-nilly if they don't like them."

Fitzgerald agreed.

The three-judge panel of Selya, Lipez and Judge Jeffrey R. Howard, of New Hampshire, is expected to issue a decision within a couple of months. Roy said that decision "might or might not make the Perry case moot." The Perry case is broader than the Pho and Lewis cases, he said.