Crack v. Cocaine: What the new Federal Sentencing Guidelines have changed

In 2010, Congress passed the Fair Sentencing Act (FSA).  The FSA gave the United States Sentencing Commission (USSC) the authority to make the changes to federal sentences related to crimes involving crack cocaine on November 10, 2010.  On November 1, 2011, the Commission voted unanimously to make the crack cocaine guideline under the FSA retroactive.

The most significant change that came out of the FSA was an adjustment to the amounts of crack cocaine that triggered mandatory five and ten year sentences.  Under the old guidelines, there was a huge discrepancy in sentencing guidelines between crack cocaine and powdered cocaine.  Specifically, the mandatory sentence of five years was triggered by 5 grams of crack cocaine under the old law, whereas the same five year mandatory minimum sentence was not triggered unless there was 500 grams of cocaine at issue.  Similarly, the mandatory sentence of ten years was triggered by possession of 50 grams of crack, but this same mandatory minimum sentence was not triggered unless there were 5,000 grams of powdered cocaine at issue.  That was a 100:1 ratio and was seen by many to be inherently unfair.

The FSA has raised the amount of crack that triggers the five year mandatory minimum sentence to 28 grams.  The amount of cocaine has remained the same:  500 grams.  The same is true for the mandatory minimum sentence of ten years under the new guideline:   the amount of crack has been raised to 280 grams while the amount of powdered cocaine has remained the same; 5,000 grams.  While there is still a sentencing disparity between crimes involving crack cocaine and powdered cocaine, it has narrowed the gap from a ratio of 100:1 to a ratio of 18:1.

Under the old law, simple possession of 5 grams of crack meant that the accused was looking at a mandatory minimum sentence of five years if prosecuted under the federal statute.  That provision has now, in effect, been erased.

Additionally, on November 1, 2011, these guidelines became retroactive.  This means that anyone sentenced before November 1, 2010 may be eligible for sentence reductions.   The prisoner must motion the court in which it was sentenced under 18 U.S.C. § 3582(c)(2) for a reduction.  Then, the court can give all, part, or none of the requested sentence reduction.  There is no guarantee that anyone will receive a sentence reduction even if they are eligible because the decision is left entirely in the hands of the court.

To be eligible under the retroactive crack guideline, the following criteria must be met:

• Conviction in a federal court
• Conviction of a crime involving crack cocaine
• Sentenced before November 1, 2010
• Serving a guideline sentence for crack cocaine
• Are NOT on supervised release; AND
• Are NOT in a federal halfway house

This means that it is crucial that you have an attorney that understands the new sentencing guideline and that will advocate for your rights.  Attorney Edwards has decades of experience representing people accused of federal drug charges and will work diligently to ensure you get the best possible result.  If you have any question regarding the new crack guideline for a new or old charge, contact our Columbus, Ohio drug charges defense attorney office today.