The opinion of the court was delivered by: Charles P. Kocoras, District Judge
On December 12, 1995, Gregory Shelby pled guilty to both counts of a superceding indictment without a plea agreement. Count One charged Shelby with knowingly and intentionally possessing with an intent to distribute approximately 497 grams of mixtures containing cocaine and approximately 120 grams of mixtures containing cocaine base (crack cocaine). Count Two charged Shelby with carrying and using a firearm during and in relation to the commission of a drug trafficking crime. Both crimes were charged as having been committed on or about January 14, 1993, a date when Shelby was 23 years old. Count One carried a minimum mandatory sentence of 10 years and Count Two carried a mandatory term of 5 years consecutive to any other sentences imposed.
The Presentence Investigation Report reflected Guideline calculations based on a total offense level of 32 and a criminal history category of I; the Guideline range for Count One was 121 to 151 months with Count Two at 60 months. At the sentencing hearing, the Court increased Shelby's total offense level to 38 based upon additional drug quantities constituting relevant conduct. The reconfigured Guideline range for Count One was 235 to 293 months' imprisonment to be followed by Count Two's mandatory sentence of 60 months. The court sentenced Shelby to 235 months on Count One and 60 months on Count Two, for a total period of incarceration of 295 months-approximately 24 1/2 years.
At the time his sentence was imposed on March 7, 1996, Shelby was 26 years old. He has now been imprisoned for approximately 13 years. His conviction and sentence were affirmed in United States v. Shelby, 121 F.3d 1118, 1122 (7 Cir. 1997). Shelby is back before this Court on two motions, one filed by the government and one filed on Shelby's behalf by his counsel. The government's Rule 35 Motion for Reduction of Sentence is based on Shelby's rendering of substantial assistance to the government in its investigation and prosecution of a number of other individuals about whom Shelby had knowledge. Shelby's motion is based on the premise that Amendment 706 to the federal Sentencing Guidelines, made retroactive by Amendment 711 and affecting the crack cocaine Guideline, reduces the base offense level in this case.
At the time of Shelby's sentencing, the Sentencing Guidelines were mandatory and the 100-to-1 powder cocaine to crack cocaine sentencing disparity was embedded within them. The crack/powder disparity was a product of Congress's establishment of minimum mandatory sentences that were set purely on the weight and type of drugs involved. Contrary to pre-Guideline sentencing practices, which required sentencing judges to consider and evaluate a number of criteria before imposing a sentence, the Sentencing Commission adopted a drug-weight-driven scheme using the minimum mandatory incarceration provisions set by Congress as a point of departure. With punishment increasing in lockstep with the weight and type of drugs involved, the comprehensive sentencing considerations of 18 U.S.C.§ 3553(a), some of which are favorable to a defendant, were essentially rendered unavailable for most drug cases in light of the provisions of § 3553(b).
The mandatory aspect of subsection (b)(1) of § 3553 was held unconstitutional in United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 756-57 (2005). In addition to Booker, the Supreme Court has discussed sentencing practices in two other important recent cases, Kimbrough v. United States, 128 S.Ct. 558 (2007) and Gall v. United States, 128 S.Ct. 586 (2007). Another legal upheaval of a different sort was the action of the United States Sentencing Commission in reducing certain crack cocaine offense levels and making the reductions retroactive. The net effect of the Supreme Court action is to vest greater discretion in federal sentencing courts with the long-established Guidelines playing an advisory role. The action of the Sentencing Commission serves to narrow somewhat the differential in punishments for crack cocaine when compared to powder cocaine.
Notwithstanding the described sea change in federal sentencing law, there yet remain a number of open issues in this case. Foremost among them is the extent to which, if at all, this court is empowered to fully consider all of the factors of 18 U.S.C. 3553(a) by virtue of either or both pending motions. Another issue to be resolved is the extent to which this court is constrained to the ratio the Sentencing Commission has chosen for crack and powder cocaine offenses. A third issue is whether other sentencing factors besides Shelby's conduct in rendering substantial assistance to the government can be considered within the confines of the government's Rule 35 motion.
The vehicle for consideration of Shelby's motion for a reduction in his sentence is 18 U.S.C. § 3582(c)(2), dealing with lowering of a sentencing range by action of the Sentencing Commission. Section 3582 itself states that the court "may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The case of United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), directly addressed the effect of Booker on the policy statements contained as part of the Sentencing Guidelines.
In holding that a mandatory system is no longer an open choice, to the extent that policy statements would have the effect of making the Guidelines mandatory, Booker established that they must be void. Id. at 1170. Booker emphasized that the Guidelines could not be construed as mandatory in one context and advisory in another. 543 U.S. at 266, 125 S.Ct. at 768. As a consequence, district courts are necessarily endowed with the discretion to employ the § 3553 factors when issuing new sentences under § 3582(c)(2). The ease and simplicity of mandatory calculations can no longer stand as a substitute for the evaluation of relevant factors necessary to a determination of just punishment. See Hicks, 472 F.3d at 1170.
We recognize that there are a number of decisions and opinions contrary to the decision in Hicks. There is presently no Seventh Circuit case on point. However, based on the teaching of Booker and the reasoning of Hicks, we believe the better view is that policy statements, like the substantive Guideline provisions, are advisory only and do not preclude consideration of all of the sentencing factors of § 3553(a) in this case. As a result, Shelby's motion itself affords a basis for de novo review and imposition of a sentence that is not constrained by Commission policy statements or the ratio it chose for crack and powder cocaine offenses.
The third issue described above is whether sentencing factors other than the defendant's conduct in rendering substantial assistance to the government can be considered within the confines of the government's Rule 35 motion. Although it is not essential to decide this issue in view of our belief that Shelby's own motion is the springboard to evaluate all of the § 3553(a) sentencing factors, we believe it is appropriate to do so. In this instance, we believe there is recent precedent from the Court of Appeals for the Seventh Circuit that affords an independent basis to consider the full § 3553(a) sentencing factors for Shelby even though the government's motion is confined to Shelby's substantial assistance to the government. In the quite recent case of United States v. Bush, 523 F.3d 727 (7 Cir. 2008), the Seventh Circuit reviewed a plea bargain between defendant Bush and the government. In return for Bush's plea of guilty to a drug distribution count and his substantial assistance to the government, the government agreed to move for a two-level reduction in the calculation of the drug Guideline and dismissal of a firearms count. The government so moved the court and, in addition, dismissed an § 851 information that increased Bush's mandatory minimum sentence to 20 years' imprisonment and further moved to release Bush from the normal mandatory minimum sentence of 10 years. The court granted the government's motion in its entirety, producing a sentencing range of 100 to 125 months' imprisonment based on a criminal history category of IV. Not simply content that the government more than lived up to its part of the plea agreement, defendant Bush insisted that his sentence should be reduced still further, to 63 months, based on his perceived unfairness of the 100:1 crack/powder ratio. The district court declined Bush's request and sentenced him to 96 months' imprisonment. After the Seventh Circuit heard arguments in the Bush case but before it decided the appeal, the Supreme Court issued its decision in Kimbrough.
The Seventh Circuit ordered supplemental briefing in Bush in light of Kimbrough. Determining that Kimbrough clarified that Congress did not mandate the 100:1 ratio to all crack offenses and that a court may reduce a defendant's sentence below the Guidelines range in a routine crack-related case if it is convinced that the ratio alone unfairly punishes the defendant, the Seventh Circuit remanded the case for resentencing. The twofold significance of the Bush decision is that the Seventh Circuit allowed consideration of sentencing factors not related to substantial assistance in a motion filed by the government for that sole reason and that Kimbrough permitted de novo review of a drug sentence unconstrained by a 100:1 or any other crack/powder ratio. Aside from timing differences in the filing of the government's motion in Bush (pre-sentence) as opposed to the Rule 35 motion in the instant case (post-sentence), the two motions are the same. Accordingly, we believe the government's motion in this case affords this court the ability to consider all of the sentencing factors set forth in 18 U.S.C. § 3553.
In writing for the Supreme Court in Kimbrough, Justice Ginsburg said that in the ordinary case, the Sentencing Commission's recommendation of a sentencing range will reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives. But the crack cocaine Guidelines presented no elaborative discussion of the level of review for an outside the heartland sentence for two reasons. Kimbrough describes the Sentencing Commission's departure from its empirical approach in formulating the crack Guidelines. The Commission had offered criticism of the crack/powder ratio and recommended changes to the ratios to Congress in 1997 and again in 2002. These two Commission reports followed Congress's rejection of an amendment in 1995 establishing a 1:1 ratio. The continued criticisms by the Commission of the crack Guidelines was based on its research and experience with the 100:1 ratio and was multi-faceted. The empirical studies the Sentencing Commission engaged in were rejected by Congress, thereby producing Guidelines driven by the minimum mandatory sentences set by Congress, which the Sentencing Commission believed to be excessive.
In Kimbrough, the government acknowledged that the Guidelines are now advisory and that, as a general matter, courts may vary from Guideline ranges based solely on policy considerations, including disagreements with the Guidelines. A district court may consider arguments that the Guideline sentence itself fails properly to reflect § 3553 (a) considerations. In the ordinary case, the Sentencing Commission's recommendation of a sentencing range "will reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Rita v. United States, 127 S.Ct. 2456, 2464-65 (2007). The sentencing judge, on the other ...