UNITED STATES DISTRICT COURT
__________________ DISTRICT OF TEXAS
_________________ DIVISION
UNITED STATES OF AMERICA,                   
V.								CAUSE NO. _______________
______________________________
(NAME OF DEFENDANT) SENTENCING MEMORANDUM  

Introduction
	For many years, _____________ held a steady job as a ____________r.  After he was laid-off, _____________’s life took a downward spiral, and he landed back in his old neighborhood with a childhood friend who was dealing drugs.  _____________, who has no prior criminal history, pleaded guilty to possession with intent to distribute 5 grams or more of cocaine base.  This Court must now determine a sentence for his offense, taking into account the factors set out in 18 U.S.C. § 3553(a), which include _____________’s personal background, the circumstances of his offense, and the need to avoid unwarranted sentencing disparities.  Because of _____________’s cooperation, the Government has agreed to recommend a §5K1.1 downward departure to a sentence of 30 months’ imprisonment.  This equates to a six-level decrease from the advisory guideline range of 57 to 71 months.  The advisory guideline range is based almost entirely on the quantity and type of drug involved: 42 grams of cocaine base.  _____________ submits that the advisory range is an inappropriately severe starting point because of the unwarranted disparity in sentence between cocaine base and powder.  He also maintains that the advisory range is an unduly harsh in light of the other mitigating facts presented in his case. A reasonable and just sentencing range would be 12 to 18 months.
A. The Court’s Post-Booker Authority.  	
	As a result of the decision in United States v. Booker, 125 S. Ct. 738 (U.S. 2005), the sentencing guidelines are now “effectively advisory” in all cases. Id. at 757. The result is that a district court must now “consider Guidelines ranges,” but may “tailor the sentencing in light of other statutory concerns as well.” Id.  Following Booker, the guidelines no longer dominate sentencing. They no longer remove from consideration factors such as emotional conditions or family ties, that always appeared relevant under § 3553(a), but which were forbidden to sentencing courts. See, e.g., U.S.S.G. §5H1.3, §5H1.6; see also United States v. Ranum, 353 F.Supp.2d 984, 987 (E.D.Wis., 2005). Unbound from the Commission’s mandatory guidelines, the sentencing court is free to determine how best to comply with “§ 3553(a)’s primary directive:  to ‘impose a sentence sufficient, but not greater than necessary to comply with the purposes’ of sentencing.” Ranum, 353 F.Supp. 2d 984, 986.  
	The sufficient-but-not-greater-than-necessary directive is not just another "factor" to be considered.  Rather, it sets an independent upper limit on the sentence a court may impose.  In determining what sentence is sufficient but not greater than necessary, the court should consider several factors including (1) "the nature and circumstances of the offense and the history and characteristics of the defendant;"(2) the guidelines and policy statements issued by the Sentencing Commission, including the (now advisory) guideline range; and (3) the need to avoid unwarranted sentencing disparity. 18 U.S.C. § 3553(a)(1),(a)(2)-(6).1 
B. The Circumstances of _____________’s Case Demonstrate That the Advisory Guideline Range Is an Overly Harsh Starting Point for the 5K1.1 Departure, In Contravention of the Direction of § 3553(a). 

	_____________ pleaded guilty to one count of possession of cocaine base with intent to distribute, involving a total weight of approximately 42 grams. The base offense level for 35 to 50 grams of crack cocaine is 30. See Guideline Worksheet (citing U.S.S.G. § 2D1.1(c)(5)).  After reductions for "safety valve," U.S.S.G.§2D1.1(b)(7) (2 levels); U.S.S.G. §5C1.2, and  acceptance of responsibility, U.S.S.G. §3E1.1 (3 levels), the probation officer recommended a total offense level of 25.  That offense level, with _____________’s criminal history category of I, results in an advisory guideline range of 57 to 71 months.  
	The sentence called for by the Guidelines is driven largely by the type of drug involved, cocaine base (“crack”). The Guidelines treat the possession of 40 grams of crack the same as they treat possession of 4,000 grams of powder cocaine, placing them both at base offense level 30. See U.S.S.G. §2D1.1(c)(4). Thus, an offense involving crack is sentenced far more harshly than an offense involving the same amount of powder (a 100-to-1 ratio).  Had _____________’s offense involved the same amount of cocaine powder, the base offense level would be 6-levels lower. See U.S.S.G. §2D1.1(C)(8) (Offense level 24).  After applying the reductions for safety valve, acceptance of responsibility, and §5K1.1(assuming a 6-level reduction)2, the advisory guideline range would be 12 to18 months, as opposed to the recommended 30 months.  
	As explained more fully below, the 100-to-1 crack to powder ratio is unwarranted, creates unfair sentencing disparity, fails to promote respect for the law, and, in _____________’s case, leads to a sentence greater than necessary to promote the § 3553(a) sentencing purposes.  In this post-Booker sentencing, the Court should take into account this unwarranted disparity, as well as the other mitigating circumstance’s of _____________’s offense. 
1. The Acknowledged Wrong of the 100 to 1 Ratio Counsels a Sentence Less than That Called for By the Advisory Guidelines.

	The Sentencing Commission has issued a number of reports in the last decade that have concluded that the 100 to 1 crack to powder cocaine ration is much too high and that persons who deal crack cocaine are punished too harshly relative to those who deal powder cocaine.3  In determining an appropriate sentence for Mr. _____________, the  Court should give great weight to the Commission’s views on this issue, as other district courts have.  See United States v. Clay, 2005 WL 1076243, *4 (E.D.Tenn. May 6, 2005) (reviewing Commission’s conclusions and noting that “guideline's treatment of crack cocaine versus their treatment of powder cocaine. . . may, in and of itself, create an unwarranted sentence disparity); see also United States v. Smith, 359 F. Supp. 2d 771, 780 (E.D. Wis. 2005) (Adelman, J.)(concluding after reviewing Commission’s findings, that “none of the previously offered reasons for the 100:1 ratio withstand scrutiny”); United States v. Thomas, 360 F. Supp. 2d 238, (D. Mass. 2005) (Ponsor, J.); Simon v. United States, 361 F.Supp2d 35 (S.D.N.Y. 2005) (Sifton, J.).  The Commission's conclusion implicates several of the § 3553(a)(2) sentencing factors in ways that strongly suggest a sentence below that recommended by the advisory guidelines is appropriate.  
	The chief directive of § 3553(a) is that the court "shall impose a sentence sufficient, but not greater than necessary" to comply with the purposes identified by Congress in § 3553(a)(2). Under § 3553(a)(2)(A), a sentence should reflect the seriousness of the offense. The Commission's conclusion that the 100 to 1 ratio is unjustified means that the crack penalties overstate the seriousness of crack offenses.4 The Commission has debunked the theories that led to draconian crack penalties. Early rationales for the comparatively tougher crack penalties included that crack is more addictive than powder cocaine, that prenatal crack exposure causes more harm than exposure to other substances, and that crack is more likely to involve minors and violence. See Fifteen Year Report at 93–97.  After a thoroughly review, the Sentencing Commission has concluded that these rationales do not justify the 100-to-1 ratio. See id. at 94 (addictive nature of crack compared to powder cocaine has been overstated, and “does not appear to warrant the 100-to-1 drug quantity ratio").  
	The Commission has also found that there is no scientific validity to the theory that a baby exposed prenatally to crack will suffer more harm than a baby exposed prenatally to powder cocaine. Id. at 95.  Similarly, the Commission has discounted the idea that crack offense are more likely to involve violence, see id. at 100 (“recent data indicate that significantly less trafficking-related violence or systemic violence, as measured by weapon use . . . is associated with crack cocaine trafficking offenses than previously assumed”), or minors, see id. at 96 (“recent data indicate that the epidemic of crack cocaine use by youth never materialized to the extent feared.”). In short, the Commission’s work has shown that the offense level set by the advisory guidelines on the discredited theories of crack as a particular scourge do not accurately reflect the seriousness of the offense. 
	The Court is required to avoid unwarranted disparities in imposing a sentence. See 18 U.S.C.
§ 3553(a)(6). It is also required to impose a sentence that will promote respect for the law. See 18 U.S.C. § 3553(a)(2)(A). To apply the 100-to-1 ratio undermines both of these requirements.  Crack cocaine offenses and powder cocaine offenses are violations of the same drug laws. They are therefore similar conduct. Yet the unjustified 100 to 1 ratio produces vastly different sentences for violators of identical laws. The difference must be unwarranted as the Commission has acknowledged that the 100 to 1 ratio is unwarranted.   
	The 100-to-1 ratio also creates racial disparity. Crack sentences are imposed disproportionately on minorities, including African-Americans. See, e.g., U.S. Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics, Table 34, Race of Drug Offenses for Each Drug Type (81.4% of persons sentenced for crack offenses are black, whereas only 30.9% of persons sentenced for powder offenses are black)5; see also 2002 Report at 102-03; see also Smith, 359 F.Supp.2d 771, 780 (noting that “the unjustifiably harsh crack penalties disproportionately impact on black defendants”). Perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system among those very groups that Congress intended would benefit from the heightened penalties for crack cocaine." 2002 Report at 103; see also Fifteen Year Report at 113, 115, 117, 132.
	In addition, the 100-to-1 ratio fails to promote respect for the law because it does not does not mesh with public perception of the relative seriousness of the two types of cocaine offenses.  As the Sentencing Commission found when it commissioned a survey ten years ago, " the general public does not make important distinctions between trafficking in heroin, powder cocaine and crack cocaine . . . ." U.S. Sentencing Commission, Public Opinion on Sentencing Federal Crimes at 86 (Oct. 1995)6; see also United States v. Wilson, 350 F. Supp. 2d 910, 918 (D. Utah 2005) (noting the public’s failure “to support the Guidelines' differentially harsh treatment of distribution of crack cocaine (as compared to powder cocaine)”).  Because of this discordance in public perception, applying the 100-to-1 ratio fails to promote respect for the law.
	"Given the Draconian punishment associated with crack cocaine, to follow the guideline range for this case would go beyond what is needed to serve the purpose of sentencing . . . .Respect for the law doesn't always mean sending people to prison for as long as you can."  United States v. Mulvey, No 03-10075-001 (C.D. Ill. Feb. 11, 2005) (explaining sentence below guideline range for crack offense).  _____________ respectfully requests that the Court grant his motion to reduce the starting point for any §5K1.1 departure to below the advisory guideline range, based on the unwarranted disparity between the guidelines’ treatment of crack and cocaine powder.  See 18 U.S.C. § 3553(a)(6)
2. The Circumstances of _____________’s Offense and His Positive Record Counsel A Sentence Less than that Called for By the Advisory Guidelines

	Additionally, reducing the starting point for any 5K1.1 departure below the advisory guideline range is appropriate in light of the other factors specified in 18 U.S.C. § 3553(a). The first factor to consider is the history and characteristics of Mr. _____________.  See 18 U.S.C. § 3553(a)(1).  Mr. _____________ is a high school graduate who has shown a  propensity to work, having maintained steady employment as a welder for many years.  In fact, Mr. _____________ has no criminal history, and he only returned to the troubled environment from which he had successful emerged  after having been laid-off from his welding job.  Mr. _____________ also has the support of many citizens within his community.7  As shown in the submitted letters, Mr. _____________ is considered respectful and trustworthy.  A sentence below the advisory guideline range would take into account these mitigating personal characteristics. 
	A sentence below the advisory range would also reflect the seriousness of the offense, provide just punishment for the offense, and afford adequate deterrence to criminal conduct, as required by 18 U.S.C. § 3553(a)(2)(A) and (a)(2)(B). If the Guidelines propose that a sentence of 12-18 months would satisfy these requirements in the case of someone convicted of selling a like quantity of powder cocaine, a sentence well below the contemplated 30 month term would do the same in the case of Mr. _____________.  
	Additionally, Mr. _____________ has never been imprisoned.  The sentence he receives from the Court will no doubt have a significant impression on him.  Finally, a sentence of imprisonment well below the 30 month recommended sentence would adequately protect the public from further crimes of Mr. _____________, and allow him the opportunity to become re-engaged in the productive work which he has shown himself to be capable.
Conclusion
	For the reasons stated above, Defendant _____________ respectfully requests that this
Court impose a sentence within a 12 to 18 month imprisonment range in order to avoid unwarranted disparity between sentences for crack cocaine and cocaine powder; to promote respect for the law and; to take into account the mitigating circumstances which contributed to the commission of the offense (specifically, Mr. _____________’s loss of his steady employment, and the support of members of his community).                                                                         
						Respectfully submitted.

						______________________________
					Name
						State Bar No.
						Address
						City, State, Zip
						Telephone
						Fax
						Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing _____________’s Sentencing Memorandum on____________, United States Attorney for the __________ District of Texas (ATTN: Assistant United States Attorney __________), by courier  to his office at United States Attorney’s Office, ____________________________ on __________________________.

						__________________________
						Attorney for Defendant