The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Michael Edwards pleaded guilty to selling between 35--50 grams of crack cocaine, or cocaine base. This quantity represents an accumulated amount, based upon numerous small sales from 2003 to 2004. Each individual sale was for 1/16th of an ounce or less.*fn1 Under the Federal Sentencing Guidelines, this quantity is assigned a base offense level of 28. The Presentence Investigation Report ("PSR") credits Edwards with two points off for acceptance of responsibility, and one point off for notifying the government early enough to avoid trial preparation, giving Edwards an adjusted offense level of 25 and an advisory Guideline range of 63--78 months.
In determining an appropriate sentence, the court is required to consider every factor listed in 18 U.S.C. § 3553(a),*fn2 including the seriousness of the offense and what is a just punishment for the offense. § 3553(a)(2)(A). This inquiry requires, inter alia, a consideration of Mr. Edwards' individual circumstances. Before turning to those, however, the court will address the Sentencing Guidelines' suggested sentence as a policy issue.
I. Crack-Powder Sentencing Disparity
After United States v. Booker, 543 U.S. 220 (2005), and as emphasized again in Rita v. United States, 551 U.S. 338 (2007), district courts must first calculate the Sentencing Guidelines range. While the court is to give respectful consideration to the Guidelines' recommendation, it may not presume the Guideline sentence to be the correct one. As the Supreme Court observed in Kimbrough v. United States, 128 S.Ct. 558, 674 (2007), the respect to be given to the Guidelines recommendation is at its apex when the recommendation is based on the Commission's expertise (primarily, the sentencing practices of judges) or its study of the issue. However, the Supreme Court also observed in Kimbrough, and more recently in Spears v. United States, No. 08-5721, 2009 WL 129044 (U.S. Jan. 21, 2009), that district courts may reject the Guidelines recommendations when they are not based on the Commission's expertise or study. Id. at *2.
The Commission generally creates its recommendations based on empirical research of past practices, a policy itself that has been highly criticized. However, even this did not occur when the crack and powder discrepancies appeared. See Gall v. United States, 128 S.Ct. 586, 594 n.2 (2007) (noting that the Commission "departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentence that Congress established for such crimes."). No empirical support for this approach was given.
Since the crack-to-powder disparity first appeared in 1986, the Commission has been working to end, or at least to reduce, the large sentencing disparity (generally 100:1) between crack offenses and powder offenses, a good chronology of which appears in United States v. Eura, 440 F.3d 625, 635 (4th Cir. 2006). In 1995, the Commission recommended to Congress that the disparity be eliminated in its entirety, a proposal Congress rejected. In 1997, it recommended that the ratio be changed to 5:1; Congress took no action in response. In 2002, the Commission recommended a 20:1 ratio, and in that report to Congress it provided several compelling reasons for why the current disparity is unwarranted. See U.S. Sentencing Comm'n, Special Report to the Congress: Cocaine and Federal Sentencing Policy (2002) (hereinafter "2002 Report"), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm.*fn3 The most pertinent of these reasons, which fully appear in the report and in its executive summary, are highlighted here:
! The current penalties exaggerate the relative harmfulness of crack cocaine.
" Cocaine in any form produces the same physiological and psychotropic effects.
" The negative effects of prenatal crack cocaine exposure are identical and probably not as dangerous as many legal substances.*fn4
" The "epidemic" of crack use by youth that was predicted never materialized to the extent feared.
! The Guidelines penalties apply most often to lower level offenders, even though the Congressional purpose to focus on "major" and "serious" drug traffickers is clear.
" Over one-quarter of federal crack cocaine offenses involve relatively small drug quantities (less than 25 grams) The same is not true for powder cocaine, since such small ...