APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE OF KANSAS (D.C. No. 2:06-CR-20139-CM-1).
The opinion of the court was delivered by: Anderson, Circuit Judge.
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Defendant and appellant, Victor Lavone Lewis, appeals his sentence of 168 months' imprisonment, imposed following his guilty plea to several counts involving the distribution of cocaine base (crack). Because we find his sentence neither procedurally nor substantively unreasonable, we affirm.
On September 14, 2006, Mr. Lewis was charged by indictment with one count of conspiring to distribute more than 50 grams of crack; two counts of distributing more than five grams of crack; and one count of possessing crack with the intent to distribute it. He was arrested on December 29, 2006, and released on bond the following January. Mr. Lewis's probation officer then submitted a petition alleging that Mr. Lewis had violated the conditions of his release by submitting urine samples indicating marijuana usage and by violating his travel restrictions by being in Tulsa, Oklahoma, on February 13, 2007, where he committed a traffic violation. The district court ordered the issuance of a warrant, pursuant to which Mr. Lewis was arrested and his pretrial release was revoked. As indicated above, he pled guilty on April 14, 2008. Because Mr. Lewis's crime involved crack cocaine, rather than powder cocaine, he was subject to the anomalous crack cocaine sentencing provisions. We explain the history of these provisions.
I. Development of Crack/Powder Disparity
At the time Mr. Lewis was sentenced, the sentencing ratio of crack cocaine to powder cocaine was 100:1. In other words, for purposes of drug quantities for sentencing under the guidelines, one gram of crack triggered the same mandatory penalties as one hundred grams of powder cocaine. "The 100:1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs." Kimbrough v. United States, 552 U.S. 85, 94 (2007).
This ratio has resulted in a general tumult concerning its propriety. When the crack/powder disparity was first introduced in the Anti-Drug Abuse Act of 1986, crack cocaine "was a relatively new drug . . . but it was already a matter of great concern." Id. at 95. For a variety of reasons, Congress believed crack was significantly more dangerous than powder cocaine, an assumption that proved eventually to be wrong.*fn1
Thus, the Sentencing Commission subsequently determined "that the crack/powder sentencing disparity is generally unwarranted." Id. at 97. While not believing that it should eliminate entirely the disparity between crack and powder sentences, the Commission "has several times sought to achieve a reduction in the crack/powder ratio." Id. at 99. In 1995, the Commission proposed amendments to the guidelines replacing the 100:1 ratio with a 1:1 ratio, but Congress, exercising its authority under 28 U.S.C. § 994(p), rejected the amendments, while directing the Commission itself to propose revisions to the crack/powder drug quantity ratio.*fn2
The Commission then issued reports in 1997 and 2002, "recommending that Congress change the 100:1 ratio prescribed in the 1986 Act." Kimbrough, 552 U.S. at 99. The 1997 Report proposed a 5-to-1 ratio, and the 2002 Report recommended lowering the ratio "at least" to 20 to 1. Congress did not act on either Report.
In the Commission's 2007 Report, the Commission again encouraged Congress to amend the 1986 Act to adjust the 100-to-1 ratio. "This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. The alteration, which became effective on November 1, 2007 [Amendment 706], reduces the base offense level associated with each quantity of crack by two levels." Id. at 99-100 (citation omitted); see also Dillon v. United States, 130 S.Ct. 2683, 2688 (2010). By virtue of Amendment 706, sentences for crack offenders are "between two and five times longer than sentences for equal amounts of powder." Kimbrough, 552 U.S. at 100. The Commission noted that "[a]ny comprehensive solution requires appropriate legislative action by Congress." Id. (quoting 2007 Report 10).
There have been increasingly urgent requests from other quarters to make changes to the crack/powder ratio. Indeed, the United States Attorney General Eric Holder recently stated:
It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes. It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups.
Attorney General Eric Holder at the D.C. Court of Appeals Judicial Conference (June 19, 2009) (available at http://www.justice.gov/ag/speeches/2009/ag-speech-090619.html). Additionally, Assistant ...