Ninth Circuit Tackles Sentencing Disparities

(CN) — More than a decade into his 18-year prison term, a man hammered by disproportionate crack cocaine penalties can try to benefit from recent drug sentencing reform efforts, the Ninth Circuit ruled Monday.

Tyrone Davis was one of tens of thousands of predominantly black men saddled with lengthy sentences because of legislation punishing crack cocaine offenses 100 times more harshly than those involving powder cocaine.

The Anti-Drug Abuse Act, a remnant of former President Ronald Reagan's so-called "War on Drugs," was passed in 1986, two years after crack use started surging across U.S. cities.

From its inception, critics denounced the law as racist for its lopsided effect on people of color. Crack cocaine is chemically similar to its powder form, but it has been perceived as more popular among black recreational drug users.

Statistical analysis has since undermined this popular prejudice.

A 2006 study by the Substance Abuse and Mental Health Services Administration noted that white people use crack cocaine in larger numbers, but black people are disproportionately arrested and convicted for its usage.

Despite ongoing criticism, the statute remained on the books for more than two decades. It was still in effect when Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005.

U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1.

The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief.

But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences.

In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie.

"To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."

Today's ruling injects yet more uncertainty into the mix.

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief.

Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court.

Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief.

"What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."

"What's exciting about this is that it gives people like Mr. Davis a chance to correct that unfairness," she added.

The U.S. Attorney's office for the Western District of Washington, which prosecuted the case, declined to comment.

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors.

The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely.

"The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

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