Report to Congress - Impact of Fair Sentencing Act 2010, United States Sentencing Commission, 2015

Report to Congress - Impact of Fair Sentencing Act 2010, United States Sentencing Commission, 2015

• Feb. 11, 2016 • Locations: United States of America -> Alabama • Topics: Sentencing

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Report to the Congress:
Impact of the Fair Sentencing Act of 2010

United States Sentencing Commission

Patti B. Saris

Chair

Charles R. Breyer

Vice Chair

Dabney L. Friedrich

Commissioner

Rachel E. Barkow

Commissioner

William H. Pryor, Jr.

Commissioner

Jonathan J. Wroblewski

Ex Officio

J. Patricia Wilson Smoot

Ex Officio

August 2015

Table of Contents
SECTION ONE………………………………………………….……1

SECTION FOUR…………………….…………………...….………31

Executive Summary……………………………………………………3

Increased Fine Penalties for Major Drug Traffickers…32

Historical Background…………….…………………………………4

SECTION FIVE……………………….…………………...….…..….33
SECTION TWO……………………….…………………...….…..…9

Enhancements for Acts of Violence during the Course of
a Drug Trafficking Offense …………….…………………...……34

Cocaine Sentencing Disparity Reduction……………...……10


What has been the impact of the FSA on federal
prosecutorial practices? …………….……………….…………11



Are crack cocaine sentences more similar to powder
cocaine sentences? …………….……………….…………...……23



What has been the impact of the FSA on the federal
prison population? …………….……………….…………...……26



Has there been an increase in use of crack cocaine after
the FSA? …………….………………………….….…………...……27

Increased Emphasis on Defendant’s Role & Certain
Aggravating Factors …………….…………………...………….…34
Increased Emphasis on Defendant’s Role & Certain
Mitigating Factors …………….…………………...................……35

CONCLUSION …………….…………………..………………...……37
Endnotes …………………….…………………..………………...……39

SECTION THREE……………………………………...….…....…29

Appendix ...………………….…………………..………………...……43

Elimination of Mandatory Minimum Sentence for
Simple Possession ……...………….……………….…………...……30

Section One
Section One of this report highlights the Commission’s primary findings on the impact of the Fair Sentencing Act of 2010. This section also
provides a historical overview of federal cocaine sentencing policy since 1985.

Report to the Congress: Fair Sentencing Act of 2010

Executive Summary
The United States Sentencing Commission
(“the Commission”) submits this report to
Congress in response to a congressional
directive contained in section 10 of the Fair
Sentencing Act of 2010, Pub. L. No. 111–220,
124 Stat. 2372 (“FSA”), and pursuant to the
Commission’s general authority under 28 U.S.C.
§§ 994-995.
For more than twenty years, the
Commission has consistently worked with the
legislative, executive, and judicial branches of
government and other interested parties to
ensure that cocaine sentencing policy
promotes the goals of the Sentencing Reform
Act, 1 including avoiding unwarranted sentence
disparities among defendants with similar
criminal records who have been found guilty of
similar criminal conduct and promoting
proportionate sentencing. Prior to the FSA, the
Commission submitted four reports to
Congress regarding cocaine sentencing, in
1995, 1997, 2002, and 2007, based on
legislative history, scientific and medical
literature, extensive analysis of the
Commission’s own data, public comment, and
expert testimony. 2

Since 1995, the Commission consistently
took the position that the 100-to-1 drug
quantity ratio of crack to powder cocaine
significantly undermined the congressional
objectives set forth in the Sentencing Reform
Act. The Commission reached this conclusion
based on its core findings regarding crack
cocaine penalties as they existed before the
FSA:

•
•
•
•

they overstated the relative
harmfulness of crack cocaine compared
to powder cocaine;
they swept too broadly and applied
most often to lower level offenders;
they overstated the seriousness of most
crack cocaine offenses and failed to
provide adequate proportionality; and
their severity mostly impacted
minorities. 3

As a result of these findings, the
Commission recommended that Congress
reduce crack cocaine penalties so that the
crack-to-powder drug quantity ratio was no
more than 20-to-1, and that Congress repeal
the mandatory minimum penalty for simple
possession of crack cocaine. 4 In 2007, the
Commission reduced the crack cocaine
guideline by two levels as an interim measure
to alleviate some of the problems its reports
identified. 5

Consistent with the Commission’s
recommendations, the FSA reduced the
statutory penalties for crack cocaine offenses
to produce an 18-to-1 crack-to-powder drug
quantity ratio and eliminated the mandatory
minimum sentence for simple possession of
crack cocaine. 6 The FSA also increased
statutory fines and directed the Commission
to amend the U.S. Sentencing Guidelines to
account for specified aggravating and
mitigating circumstances in drug trafficking
offenses involving any drug type, not only
crack cocaine. 7
The FSA also directed the Commission to
“study and submit to Congress a report

regarding the impact of the changes in Federal
sentencing law under this Act and the
amendments made by this Act.” 8 The report
generally follows the structure of the FSA, first
analyzing the FSA’s changes to crack cocaine
penalties, then turning to its changes to
penalties for federal drug trafficking offenses
more broadly.

The Commission’s study finds that the FSA
reduced the disparity between crack and
powder cocaine sentences, reduced the federal
prison population, and appears to have
resulted in fewer federal prosecutions for
crack cocaine. All this occurred while crack
cocaine use continued to decline.

Primary Observations
1.
2.
3.
4.

Many fewer crack cocaine offenders
have been prosecuted annually since
the FSA, although the number is still
substantial;

The crack cocaine offenders who have
been prosecuted since the FSA are, on
average, not more serious offenders
than those prosecuted before the FSA;
Rates of crack cocaine offenders
cooperating with law enforcement
have not changed despite changes in
penalties; and,

On average, crack cocaine sentences
are closer to powder cocaine sentences.

Report to the Congress: Fair Sentencing Act of 2010

Historical Background
Federal Cocaine Sentencing Policy
1985 through 2000

Report to the Congress: Fair Sentencing Act of 2010

Historical Background
Federal Cocaine Sentencing Policy
2000 through 2015

Report to the Congress: Fair Sentencing Act of 2010

Historical Background
The question of how severely to punish
crack cocaine offenders has vexed Congress,
the Commission, the courts, and the
Department of Justice for almost three decades.
Crack cocaine entered the nation’s
consciousness with the death of University of
Maryland basketball player Len Bias on June
19, 1986, two days after he had been drafted
by the Boston Celtics. Early, but incorrect,
reports suggesting that Bias’ death was due to
crack cocaine use, among other reports of
increased danger from the new form of
cocaine, raised concern in Congress. 9

Congress specifically addressed crack
cocaine as part of the Anti-Drug Abuse Act of
1986. 10 Among other things, the 1986 Act
created statutory mandatory minimum
penalties that differentiated between powder
cocaine and crack cocaine. 11 Specifically, the
1986 Act set 5- and 10-year mandatory
minimum penalties for trafficking in crack and
powder cocaine based on the amount of the
drug. The 1986 Act required 100 times as
much powder cocaine as crack cocaine to
trigger the same mandatory minimum penalty;
hence, the 1986 Act’s penalties are described
as setting a 100-to-1 crack-to-powder drug
quantity ratio. The 1986 Act’s mandatory
minimum penalties were the first since the
near-complete repeal of mandatory minimum
penalties in 1970. 12

In response to the 1986 Act the Commission
incorporated the mandatory minimum
penalties into the guidelines by setting the
drug quantity thresholds in the Drug Quantity
Table so as to provide base offense levels
(levels 26 and 32) corresponding to guideline
ranges that were above the statutory
mandatory minimum penalties. 13

Congress acted again by passing the AntiDrug Abuse Act of 1988, which among other
things made first time simple possession of
crack cocaine an offense punishable by a
mandatory minimum penalty, the only drug so
punished. 14

In the Violent Crime Control and Law
Enforcement Act of 1994, Congress directed
the Commission to study and report on federal
cocaine sentencing policy. 15 Concurrently, the
Commission worked with Congress to
implement a statutory “safety valve” provision
that would permit courts to sentence certain
low-level, non-violent drug offenders below
the otherwise applicable mandatory minimum
penalty, including crack cocaine offenders. 16
In February 1995, the Commission sent to
Congress the first of four reports on federal
cocaine sentencing policy. 17 In the 1995
Report, the Commission strongly
recommended against the 100-to-1 crack-to-

Anti-Drug Abuse Act of 1986

1985
6

Anti-Drug Abuse Act of 1988

1990

Report to the Congress: Fair Sentencing Act of 2010

VCCLEA of 1994

powder drug quantity ratio and also
recommended that Congress revisit the
penalties applicable to crack cocaine simple
possession. 18

Acting on its 1995 findings, the Commission
voted to amend the guidelines to adopt a 1-to-1
crack-to-powder drug quantity ratio and added
new sentencing enhancements for violence and
other harms associated with crack cocaine. 19
Before the guideline amendment took effect,
Congress rejected the proposed amendment
and directed the Commission to again study
federal cocaine sentencing policy. 20
In response to this directive, the
Commission issued its 1997 report, reiterating
the 1995 Report’s recommendation that
Congress revisit both the 100-to-1 crack-topowder drug quantity ratio and the mandatory
minimum penalty for simple possession of
crack cocaine. 21
In 2002, responding to congressional
interest, the Commission published its third
report on federal cocaine sentencing policy. 22
In the 2002 Report, the Commission
recommended a crack-to-powder drug
quantity ratio of not more than 20-to-1 and
that Congress repeal the mandatory minimum
penalty for simple possession of crack
cocaine. 23

1995 USSC Report

1995

1997 USSC Report

2000

2002 USSC Report

Historical Background
A 2005 Supreme Court decision rendering
the guidelines advisory 24 led to a series of
cases addressing whether and to what degree
the 100-to-1 crack-to-powder drug quantity
ratio applied in a given case. 25 Ultimately, the
Supreme Court held that a sentencing judge
may consider the disparity between the
guidelines’ treatment of crack and powder
cocaine when determining a sentencing range
and that the sentencing judge has the authority
to substitute a crack-to-powder drug quantity
ratio different than 100-to-1 to avoid that
disparity. 26

In 2007, due to its ongoing concern about
the 100-to-1 crack-to-powder drug quantity
ratio, the Commission lowered the guideline
for crack cocaine offenses. 27 This reduction
resulted in base offense levels for crack cocaine
corresponding to guideline ranges that
included, rather than exceeded, the statutory
mandatory minimum penalties. 28
Subsequently, the Commission made the
reduction retroactive, allowing courts to
reduce the sentences of incarcerated offenders
whose sentences had been based on the higher
guideline. 29

Policies of the Department of Justice may
also impact crack cocaine sentences. Since
2003, Department of Justice policy had
directed prosecutors to charge the most

serious, readily provable offenses supported by
the facts; the most serious offense was that
which would result in the longest sentence. 30
Subsequent guidance in 2010 shifted the focus
of the charging decision to the prosecutor’s
assessment of each individual case. 31 This
policy was further modified in 2013, when the
Department of Justice specified criteria for the
subset of drug cases in which prosecutors were
to seek mandatory minimum sentences. 32
On August 3, 2010, Congress enacted the
FSA, which effectively reduced the 100-to-1
crack-to-powder drug quantity ratio to 18to-1.33 The FSA also eliminated the
mandatory minimum for simple possession
of crack cocaine.34

Enactment of the FSA triggered responses
from the Commission, the Department of
Justice, and the Supreme Court. In 2011, the
Commission implemented the FSA’s new
penalties in the guidelines and subsequently
made the changes retroactive. 35 The
Department of Justice issued guidance that the
FSA’s new penalties applied to sentencings
occurring on or after August 3, 2010,
regardless of when the offense took place. 36
Finally, the Supreme Court held that the FSA’s
penalties applied to offenses committed prior
to August 3, 2010, but sentenced after that
date. 37

Booker v. United States

2005

Kimbrough v. United States
Crack -2 amendment

In 2014, after the FSA was fully
implemented, the Commission separately
reduced the drug guidelines for all drugs,
including crack cocaine, by two levels, and
made this change retroactive. 38 In order to
accurately report the effect of the FSA, data
that could be affected by this later Commission
action is excluded. This exclusion is based on
time; where data might be affected by the 2014
drug amendment, the report will include data
only through fiscal year 2013.

Each year the Commission collects data
regarding every felony and class A
misdemeanor offense sentenced during that
year and analyzes it to provide information to
policy-makers and the federal criminal justice
community. For this report the Commission
primarily used data from these publiclyreleased data sets. This was augmented by
data derived from a special coding project on
the function cocaine offenders played in the
offense. For specific information about
methodology and further detail relating to any
figure in this report, see the Appendix.

FSA guideline amendments

Spears v. United States

Fair Sentencing Act

2010

Report to the Congress: Fair Sentencing Act of 2010

Section Two
Section Two of this report analyzes the impact of Section Two of the Fair Sentencing Act of 2010 related to Cocaine Sentencing Disparity
Reduction.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Pre-FSA
Crack
Quantity

Post-FSA
Crack
Quantity

10-yr min

50 g

280 g

5-yr min

28 g

21 U.S.C. § 841
5-yr min

21 U.S.C. § 960
10-yr min

50 g

28 g

280 g

Section 2 of the FSA reduced the statutory
mandatory minimum penalties for crack
cocaine offenses involving manufacturing or
trafficking in crack cocaine by increasing the
quantity thresholds required to trigger a
mandatory minimum term of imprisonment. 39
The quantity threshold required to trigger the
5-year mandatory minimum term of
imprisonment was increased from 5 grams to
28 grams, and the quantity threshold required
to trigger the 10-year mandatory minimum
term of imprisonment was increased from 50
grams to 280 grams. 40
As directed by the FSA, the Commission
conformed the drug guideline penalty
structure for crack cocaine offenses to the
amended statutory quantities. 41 The base
offense levels for crack cocaine were set in the
Drug Quantity Table so that the statutory
minimum penalties corresponded to levels 26
and 32. 42 Accordingly, using the new drug
quantities established by the FSA, offenses
involving 28 grams or more of crack cocaine

were assigned a base offense level of 26,
offenses involving 280 grams or more of crack
cocaine were assigned a base offense level of
32, and other offense levels for other quantities
were established by extrapolating upward and
downward. 43 Because of these amendments,
the statutory changes in the FSA impacted the
sentences of crack cocaine offenders sentenced
after the FSA, regardless of whether a
mandatory minimum applied. Therefore, even
though the FSA itself only changed the two
mandatory minimum penalties for crack
cocaine trafficking offenses, studying the
impact of the FSA requires studying all crack
cocaine offenders.
Some possible impacts of the FSA’s
reduction in crack cocaine penalties are
beyond the scope of this report. For example,
the FSA could have caused an increase in
prosecutions of crack cocaine offenses by state
and local governments. The Commission has
not yet been able to find adequate information

to study this question due to the large number
of state and local jurisdictions and their
differing practices regarding data collection
and reporting.

The Commission has observed in other
populations of crack cocaine offenders that
those released early as a result of retroactive
guideline amendments did not show a
statistically significant increase in the
likelihood of recidivating. 44 The Commission
intends to separately study the group of crack
cocaine offenders released early as a result of
the FSA amendments to determine whether
their recidivism rates follow the same pattern.
Public perceptions of fairness have also
been and continue to be an important concern
of Congress and the Commission. Although a
study of perceptions of fairness is beyond the
scope of this report, the Commission
acknowledges the importance of the issue and
encourages further study.

Research Questions
To study the impact of the FSA’s reduction in crack cocaine penalties, the
Commission has asked the following questions:






Report to the Congress: Fair Sentencing Act of 2010

What has been the impact of the FSA on federal prosecutorial practices?
• On the number of cases prosecuted?
• On the characteristics of the offenses prosecuted?
• On the characteristics of the offenders prosecuted?
Are crack cocaine sentences more similar to powder cocaine sentences?
What has been the impact of the FSA on the federal prison population?
Has there been an increase in use of crack cocaine after the FSA?

Cocaine Sentencing Disparity Reduction
What has been the impact of the
FSA on federal prosecutorial
practices?
Beginning just prior to the FSA and
accelerating after it, there has been a steep
reduction in the number of crack cocaine
offenders sentenced in the federal system.
Between 2010, the last year before the FSA
took effect, and 2014, the number of crack
cocaine offenders sentenced in the federal
system decreased by half.

The number of crack cocaine offenders
sentenced in the federal system increased
dramatically during the 1990s, and saw

another increase between 2004 and 2008, but
began to decrease after 2008, and decreased
more steeply after the FSA.

As discussed in the Historical Background,
a number of events which affected the
sentences for crack cocaine offenders occurred
in the years immediately preceding the FSA.
For example, the Commission reduced the
guidelines for crack cocaine offenders
sentenced in 2008, 45 and around this same
time the Supreme Court held that sentencing
judges could impose lower sentences based on
their disagreement with the 100-to-1 crack-topowder drug quantity ratio. 46 The number of
crack cocaine offenders sentenced began to fall

during this time period.

After the FSA, the number of crack cocaine
offenders declined more steeply: 4,730 crack
cocaine offenders were sentenced in 2010, and
2,366 crack cocaine offenders were sentenced
in 2014. Despite the large decrease, crack
cocaine was still the fourth-most commonly
sentenced drug type in 2014, more common
than heroin, but less common than
methamphetamine, powder cocaine, and
marijuana. 47

Figure 1A.
Number of Powder Cocaine
and Crack Cocaine Trafficking
Offenders,
Fiscal Years 1992-2014
In 2014, approximately half
as many crack cocaine
offenders were sentenced in
the federal system as had
been sentenced in 2010.

SOURCE: U.S. Sentencing Commission, FSA
Datafiles. For additional data and source
information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
After the FSA, the composition of the drug
caseload in many judicial districts changed
substantially.

As Figure 3A below reflects, in 2010, crack
cocaine was the most commonly-sentenced
drug in nearly 40% of all federal judicial
districts (n=36 of the 94 judicial districts); in
2014, it was the most commonly-sentenced
drug in less than 10% of all districts (n=9).
Notwithstanding the large change in the
number of offenders sentenced after the FSA,
the demographic characteristics of crack
cocaine offenders sentenced after the FSA are
substantially the same as the demographic

characteristics of those sentenced before the
FSA.

As the table to the right illustrates, male
offenders continued to make up the large
majority of crack cocaine offenders after the
FSA. The race and ethnicity of crack cocaine
offenders was also largely unchanged after the
FSA; both before and after the FSA, more than
three-quarters of crack cocaine offenders were
Black. The next-largest group of crack cocaine
offenders continued to be Hispanic offenders,
with White offenders making up a slightly
smaller percentage.

Fiscal Year 2010

Fiscal Year 2014

Figure 2.
Selected Characteristics of
Crack Cocaine Trafficking Offenders
Fiscal Year
Fiscal Year
2010
2014
Race/Ethnicity
Black
Hispanic
White
Other
Gender
Male
Female

78.7%
13.0%
7.3%
1.1%

83.4%
8.6%
6.5%
1.5%

91.6%
8.4%

90.2%
9.8%

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see Appendix.

Figure 3A.
Districts with Crack Cocaine
as the Primary Drug Type,
Fiscal Years 2010 and 2014

In 2014, crack cocaine was
the most commonlysentenced drug in only 9 of
94 federal judicial districts,
down from 36 in 2010.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine offenders after the
FSA more serious as measured by drug
quantity?
Federal drug statutes set an individual
offender’s statutory penalty primarily based on
the quantity of the type of drug involved in the
offense. 48 Similarly, drug quantity is the
primary factor that determines the offense
level under the federal sentencing guidelines. 49
Given the significance of drug quantity in the
statutory penalty scheme and the guideline
range, a higher quantity of drugs would be an
indicator of a more serious offender. Therefore,
if crack cocaine offenders sentenced since the

FSA were, on average, more serious than those
sentenced before the FSA, we may expect an
increase in the median drug quantity for which
those offenders are accountable. The median
drug quantity is the single middle level of the
drug quantity of all crack cocaine offenders
sentenced in that year.

As Figure 4A below illustrates, median
drug quantities for crack cocaine offenders
have increased somewhat since the FSA,
continuing a trend that started before the FSA.
The drug guideline sets the base offense level
by specifying a single offense level for a range
of quantities. Before the FSA, the guidelines
provided a single base offense level for any

crack cocaine offender accountable for
between 50 grams and 150 grams; after the
FSA, the guidelines provide a single base
offense level for any crack cocaine offender
accountable for between 28 and 112 grams.
The median drug quantity in each year in
Figure 4A would fall within either of these
ranges.

Although they are responsible for a
somewhat larger quantity of drugs, crack
cocaine offenders sentenced after the FSA are
not, on average, more serious as measured by
drug quantity.

Figure 4A.
Median Drug Weight in Crack
Cocaine Trafficking Offenses,
Fiscal Years 2005-2013

Crack cocaine offenders
sentenced since the FSA
have been responsible for
more drugs than those
sentenced before the FSA.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Because a crack cocaine offender’s base
offense level under the guidelines is primarily
determined by drug quantity, studying the base
offense level of crack cocaine offenders is
another way to look at drug quantity. The
median base offense level of crack cocaine
offenders in a given year is the single middle
level of the base offense levels of all crack
cocaine offenders sentenced in that year.
As Figure 5A below demonstrates, the
median base offense level for crack cocaine
offenders has decreased significantly over
time. However, as Figure 4A above showed,
the median drug quantity for crack cocaine

offenders has changed only somewhat over
time. Therefore, the changes in the median
base offense level are attributable to changes
to the Drug Quantity Table in 2007 and 2010.

The table to the right demonstrates one way
to use each year’s median base offense level to
understand the significance of the FSA’s
changes to crack cocaine penalties. Before the
FSA the median base offense level generally
corresponded to a 10-year sentence; after the
FSA, the median base offense level generally
corresponded to a 5-year sentence.

Fiscal
Year
2005
2006
2007
2008
2009
2010
2011
2012
2013

BOL

Crack
cocaine
quantity
(grams)

Guideline
range in
months
(CHC I)

32
32
32
30
30
30
26
26
26

50-150
50-150
50-150
50-150
50-150
50-150
28-112
28-112
28-112

121-151
121-151
121-151
97-121
97-121
97-121
63-78
63-78
63-78

Figure 5A.
Median Base Offense Level in Crack
Cocaine Trafficking Offenses,
Fiscal Years 2005-2013
Since median drug quantity has
changed only somewhat over time,
changes in the median base
offense level result from changes
in the penalties themselves.
SOURCE: U.S. Sentencing Commission, FSA
Datafiles. For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Do crack cocaine offenders after the
FSA perform higher level functions in
the offense?
The Commission has periodically studied
samples of the federal drug trafficking
population to assess the function that those
offenders performed in the drug trafficking
offense by reviewing the offense conduct
section of the presentence report and
independently assessing the function the
individual performed. The Commission
assigned each offender to one of 21 separate
function categories, listed in Appendix Figure
6C, and then grouped them into six categories

for purposes of presenting the data in Figure
6A below. The six categories are displayed
from most serious to least serious, from left to
right, in Figure 6A. The categories are:
• High-Level Suppliers (including
importers) and Organizers/Leaders
• Manufacturers
• Wholesalers
• Managers/Supervisors
• Street-Level Dealers
• Low Level (including brokers, couriers,
mules, and others)

A comparison between the two right-most
bars in Figure 6A shows what percentage of
offenders performed each function before and
after the FSA (in 2009 and 2013). This
comparison reveals little change in the
functions performed by crack cocaine
offenders. Street-level dealer continued to be
the function most often performed by crack
cocaine trafficking offenders after the FSA.

If an offender performed more than one
function, the most serious function controlled.

Figure 6A.
Most Serious Function of Crack
Cocaine Trafficking Offenders,
Select Fiscal Year Samples
Crack cocaine offenders
sentenced since the FSA have,
on the whole, performed
largely the same functions as
those sentenced before the
FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine offenders after the
FSA more serious because their
offenses more often involve weapons?
If weapons are involved in a crack cocaine
offense, the offender’s sentence may be
increased by a statute (18 U.S.C. § 924(c)) or
the guidelines (§2D1.1(b)(1)). Taken together,
these provisions can indicate how often
weapons are involved in crack cocaine offenses
in the federal system. As Figure 7A below
demonstrates, these provisions were no more
likely to apply to crack cocaine offenders
sentenced after the FSA than before it.

18 U.S.C. § 924(c) provides for a mandatory
minimum term of imprisonment for the
possession, use, brandishing, or discharging of
a firearm during and in relation to a drug
trafficking offense. The sentence imposed
pursuant to section 924(c) must be consecutive
to any sentence imposed for the underlying
drug trafficking offense, and must be at least 5
years long.

clearly improbable that the weapon was
connected to the offense. However, the
guidelines also provide that if the offender’s
sentence is being increased due to a section
924(c) conviction for a given weapon, the
guideline weapon enhancement does not also
apply for that weapon.

Separately, the guidelines provide a 2-level
enhancement to a drug guideline range
because of the increased risk of violence when
drug traffickers possess weapons. The
enhancement is to be applied unless it is

Figure 7A.
Rate of 18 U.S.C. § 924(c) and
§2D1.1 Weapon SOC for Crack
Cocaine Trafficking Offenders,
Fiscal Years 2005-2013
Crack cocaine offenders
after the FSA were not more
likely to have had weapons
involved in the offense.
SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine offenders after the
FSA more serious because they more
often oversaw the involvement of
others?
The aggravating role guideline provides for
an increase to the offense level if the offender
organized, led, managed, or supervised others
involved in the offense. 50 Crack cocaine
offenders who have been sentenced since the
FSA are slightly more likely to have played an
aggravating role in the criminal offense than
those offenders sentenced before the FSA.

Generally, the guideline provides a 4-level
increase if the offender was an organizer or
leader of a criminal activity with five or more
participants or which was otherwise extensive;
a 3-level increase if the offender was a
manager or supervisor of a criminal activity
with five or more participants or which was
otherwise extensive; and a 2-level increase if
the offender was an organizer, leader, manager
or supervisor of any other criminal activity. 51
To qualify as an organizer or leader, the
offender must have exercised a significant
degree of control and decision making over the
criminal activity. 52 To qualify as a manager or
supervisor, the offender must have either

exercised some degree of control over others
involved in the offense or must have been
responsible for organizing others for the
purpose of carrying out the offense. 53

As Figure 8A below demonstrates, these
provisions have rarely applied to crack cocaine
offenders both before and after the FSA.

Figure 8A.
Rate of Aggravating Role
Application for Crack Cocaine
Trafficking Offenders,
Fiscal Years 2005-2013
Crack cocaine offenders sentenced
after the FSA were slightly more
likely to have organized, led,
managed or supervised others in
the offense than those sentenced
before the FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine offenders after the
FSA more serious because they are less
likely to have played a
mitigating role?
The mitigating role guideline provides for a
decrease to the offense level if an offender’s
role makes him substantially less culpable than
the average participant, based on the totality of
the circumstances. 54 The rate at which crack
cocaine offenders received a decrease under
this provision has remained relatively stable
after the FSA.

Generally, the guideline provides that a
court may apply a 4-level decrease if the
offender was a “minimal” participant in a
criminal activity; a 2-level decrease if the
offender was a “minor” participant in a
criminal activity; and a 3-level decrease if the
offender’s role fell between minor and
minimal. 55 The guideline explains that a
minimal participant is one who is “plainly
among the least culpable of those involved in
the conduct of the group” and may lack
“knowledge or understanding of the scope and
structure of the enterprise and of the activities
of others.” 56

A minor participant is one who is “less
culpable than most other participants, but
whose role cannot be described as minimal.” 57

As Figure 9A below demonstrates, these
provisions have rarely applied to crack cocaine
offenders both before and after the FSA.

Figure 9A.
Rate of Mitigating Role Application
for Crack Cocaine Trafficking
Offenders,
Fiscal Years 2005-2013
Crack cocaine offenders sentenced
after the FSA were equally likely to
have been among the least
culpable in the offense as those
sentenced before the FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Do crack cocaine offenders after the
FSA have more serious
criminal histories?
The guidelines assign offenders to one of six
criminal history categories, with Criminal
History Category I for offenders with the least
serious prior criminal records (including firsttime offenders) and Criminal History Category
VI for offenders with the most extensive prior
criminal records. 58 An offender’s criminal
history category is calculated by scoring prior
sentences based on their length and the type of
offense, among other factors. 59 The criminal

history category, when combined with the
offense level, determines the offender’s
guideline range. 60

As Figure 10A below demonstrates, the
criminal histories of crack cocaine offenders
have remained relatively stable over time. One
category that has seen a small but consistent
increase in recent years has been those
offenders in the highest category, Category VI.
Beginning in 2007 the percentage of crack
cocaine offenders in Category VI increased by a
few percentage points, and generally stayed at
that slightly higher level. One explanation for
this increase is that Category VI contains two

types of offenders: those whose prior
sentences generated enough points to put them
in Category VI, and those who are Career
Offenders, who receive criminal history points
for two prior convictions for either a drug
trafficking offense or a crime of violence, or
both. 61 As Figure 11A on the next page will
demonstrate, the percentage of crack cocaine
offenders who were Career Offenders under
that guideline accounts for the increase in
Category VI offenders.

Figure 10A.
Trend in Criminal History
Category for Crack Cocaine
Trafficking Offenders,
Fiscal Years 2005-2013
Overall criminal histories of
crack cocaine offenders have
remained relatively stable,
except for a small variation in
the highest category.

SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
The Career Offender guideline provides that
an offender convicted of a crime of violence or
a drug trafficking offense who receives
criminal history points for two prior
convictions for either a crime of violence or a
drug trafficking offense, or both, is
automatically in Criminal History Category
VI. 62 It also provides an increased offense level
for a Career Offender, meaning that the
offender’s sentence will be at or near the
statutory maximum. 63 As such, the Career
Offender provision typically results in a
substantial increase in the offender’s guideline
range.

The percentage of crack cocaine offenders
who are Career Offenders, therefore, can be
seen as a separate measure of the seriousness
of crack cocaine offenders’ criminal histories,
because the Career Offender guideline uses a
different set of criteria from the criteria that
set the Criminal History Category of a nonCareer Offender.

The trend of increasing percentages of
Career Offenders among crack cocaine
offenders began in 2007, and continued after
the FSA. This increase corresponds to the
increase in offenders sentenced in Criminal

History Category VI, seen in Figure 10A.

The correspondence indicates that variation
in the percentage of crack cocaine offenders in
Criminal History Category VI sentenced after
the FSA occurred because of differences in how
many offenders had two qualifying prior
crimes of violence or drug trafficking offenses,
not because of a more general increase in
offenders’ criminal histories.

Figure 11A.
Rate of Career Offender
Application for Crack Cocaine
Trafficking Offenders,
Fiscal Years 2005-2013
Crack cocaine offenders
have been more likely to be
Career Offenders over time,
a trend that continued
after the FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
As seen in Figure 11A on the previous page,
the percentage of crack cocaine offenders who
are Career Offenders has increased. Further
study reveals that this increase is
disproportionately concentrated in crack
cocaine offenders who are accountable for
relatively small quantities of drugs.

Drug quantity is the primary determinant of
an offender’s base offense level (BOL) under
the guidelines. Therefore, an offender’s BOL
can be studied as a proxy for drug quantity. By
examining Career Offender rates of crack
cocaine offenders whose BOLs fell into low,
middle and high ranges, we can study the
increase in Career Offenders among crack

cocaine offenders with more specificity.

Figure 12A below displays generally the
same information as Figure 11A (the rate of
crack cocaine offenders who are Career
Offenders in a given year) but breaks the group
of crack cocaine offenders into three smaller
groups: those with low BOLs (green), middle
BOLs (yellow), and high BOLs (red).

By breaking the crack cocaine offenders
who are also Career Offenders into BOL groups,
we can see that the increases in the Career
Offender rate among crack cocaine offenders
with the lowest quantity (in green) followed a
similar pattern to the increases in Career

Offender among all crack cocaine offenders,
increasing in 2007 and again in 2010, with a
final increase in 2013. Although there were
increases in some years, the same pattern does
not appear among the offenders in the middle
and higher categories (yellow and red).
Similarly, the rate of Career Offenders among
crack cocaine offenders with low BOLs
increased more than the rate among middle
and high BOLs. This difference shows that,
after the FSA, a crack cocaine offender who is
accountable for a relatively small amount of
drugs is more likely to be a Career Offender
than a crack cocaine offender with a similar
quantity before the FSA.

Figure 12A.
Career Offender Application by
Base Offense Level for Crack
Cocaine Trafficking Offenders,
Fiscal Years 2005-2013
The increase in crack cocaine
offenders sentenced as Career
Offenders is more consistent
among those accountable for
the lowest quantities of drugs.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine offenders after the
FSA less likely to receive safety valve
relief?
Certain drug offenders can be sentenced
below the quantity-based statutory mandatory
minimum penalty based on the so-called
“safety valve” statute, 18 U.S.C. § 3553(f), and
the guideline that implements it. 64 In order to
qualify for the safety valve, the offender must
not have more than one criminal history point,
must not have used violence or weapons, must
not have been an organizer or leader, must not
have engaged in a continuing criminal
enterprise, and must have provided, in a timely

manner, all information about the offense to
the government. In addition, the offense must
not have resulted in death or serious bodily
injury. Under the drug guideline, offenders
meeting these criteria also receive a separate
2-level reduction in their drug offense level,
even if they were not convicted of an offense
carrying a mandatory minimum penalty. 65

The rate at which crack cocaine offenders
have received safety valve reductions has
decreased after the FSA, continuing a trend
that began in 2009. Because there are multiple
requirements for safety valve relief, and failure
to meet any one of the requirements will
disqualify an offender, it is unlikely that a

single factor caused this decrease. As Figures
7A, 8A, and 11A illustrated, in some or all of the
years during this period there were small
increases in the rate of crack cocaine offenders
who were Career Offenders, who received the
aggravating role adjustment, and whose
offenses involved weapons. Any of these
factors could disqualify an offender from safety
valve relief. Therefore, any one of these
factors, or more likely some combination of
them, likely caused the decrease in safety valve
application.

Figure 13A.
Rate of Safety Valve Application for
Crack Cocaine Trafficking
Offenders,
Fiscal Years 2005-2013

Crack cocaine offenders
received lower sentences due to
the safety valve at slightly lower
rates after the FSA.
SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Are crack cocaine sentences after the
FSA more similar to powder cocaine
sentences?
Although the FSA only changed the
statutory penalties for crack cocaine, one goal
of the statute was to reduce the disparity
between the penalties for crack cocaine and
powder cocaine. 66 As Figure 14A below
demonstrates, average crack cocaine sentences
are decreasing and as a result becoming more
similar to average powder cocaine sentences,
which have stayed relatively stable over time.

As discussed in the Historical Background,
after the FSA the Commission conformed the
drug guideline penalty structure for crack
cocaine offenses to the amended statutory
quantities as directed by the FSA. 67 Because of
these amendments, the statutory changes in
the FSA impacted the guideline ranges of crack
cocaine offenders sentenced after the FSA,
regardless of whether a mandatory minimum
applied. Generally, these changes resulted in
lower guideline ranges.
As the previous figures have shown, there
has been no sizeable increase in offense
seriousness for crack cocaine offenders as

measured by drug quantity, weapon
involvement, and role adjustments. There has
also been no overall increase in criminal
history of crack cocaine offenders.

The relative stability in offense and offender
characteristics and the decreased guideline
penalties have combined to result in the
decrease in average crack cocaine sentences
since the FSA. Because average sentences for
powder cocaine remained relatively stable
during this period, these lower average
sentences for crack cocaine are now closer to
average sentences for powder cocaine.

Figure 14A.
Average Sentence Imposed for
Crack Cocaine and Powder
Cocaine Trafficking Offenders,
Fiscal Years 2005-2013
Average sentences for crack
cocaine offenders are closer
to average sentences for
powder cocaine offenders
after the FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles. For
additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
How do the guidelines affect crack
cocaine sentences after the FSA?
One way the Commission assesses the
impact of the guidelines is to compare the
average sentence imposed for a given group of
offenders to the bottom of the applicable
guideline range for those offenders. Due to
factors such as departures for substantial
assistance to authorities, the average sentence
imposed is typically lower than the bottom of
the average guideline range. If the guidelines
have an anchoring effect on sentences, then as
the average guideline minimum increases, the

average sentence increases, and as the average
guideline minimum decreases, the average
sentence also decreases.

As Figure 14B below illustrates, before the
Commission reduced the guidelines for crack
cocaine in 2007, the relationship between the
guidelines and sentences was relatively
consistent. Generally, as the average guideline
minimum increased, the average sentence
increased, and as the average guideline
minimum decreased, the average sentence also
decreased.

the average sentence widened, suggesting that
the guidelines’ influence was diminishing. This
would be consistent with several events during
this time period, including the Supreme Court’s
decisions in Kimbrough and Spears, which
could have contributed to sentences further
from the guidelines. However, after the FSA,
the relationship between the guidelines and
sentences regained its consistency.

Between 2008 and the FSA, the gap
between the average guideline minimum and

Figure 14B.
Average Guideline Minimum
and Average Sentence
Imposed for Crack Cocaine
Trafficking Offenders,
Fiscal Years 2005-2013
After the FSA, the guidelines
appear to have regained their
relationship to crack cocaine
sentences.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
The effect of the guidelines on sentences
can also be seen by studying how often
sentences are within, above or below the
guideline range. Figure 15A below divides all
crack cocaine sentences imposed in a given
year into one of five categories: within the
guideline range (red); above the guideline
range (yellow); and below the guideline range
for one of three reasons: due to a substantial
assistance motion from the government
(purple); due to another governmentsponsored motion, such as an “Early
Disposition Program” or a binding plea
agreement to a sentence below the guideline
range (blue); or for a reason not sponsored by

the government, such as a defense motion or
the court’s own motion (green).

Figure 15A illustrates two trends in crack
cocaine sentences. First, the rate of sentences
that were below the guideline due to a
government substantial assistance motion
(purple) remained stable throughout the 20052013 period, indicating that the reductions in
penalties during this period did not generally
reduce the willingness of offenders to provide
assistance to the government in the
prosecution of others.

Second, between 2008 and 2010, the rate of
within-guideline range sentences (red)

decreased. The decrease is explained primarily
by an increase in the non-government
sponsored below range sentences (green).
There is also an increase in the rate of
sentences below the guideline range that were
sponsored by the government for reasons
other than substantial assistance (blue). After
the FSA, the rate of below-range sentences
initiated by the defendant or the court (green)
reduced and became stable, but the rate of
sentences below the guideline range that were
sponsored by the government for reasons
other than substantial assistance (blue)
increased.

Figure 15A.
Position of Sentences Relative
to the Guideline Range for
Crack Cocaine Trafficking
Offenders,
Fiscal Years 2005-2013
Substantial assistance rates
appear to have been
unaffected by reductions in
crack cocaine penalties,
including the FSA.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
How has the FSA impacted the
federal prison population?
The Commission has identified two impacts
of the FSA on the federal prison population that
it can estimate. One is the impact that the
guideline reductions the Commission made in
response to the FSA will have going forward,
comparing the sentences of those offenders
sentenced after the FSA with the sentences
they would have received had the FSA not
reduced their sentences. The second is the
impact of the Commission’s decision to
retroactively apply the guideline reductions it
made in response to the FSA to persons
sentenced before the FSA.

To estimate the prospective impact that the
guideline reductions will have, the Commission
analyzed drug trafficking offenders who were
sentenced three years after the FSA, and

Impact of FSA prospectively…

5,984
Affected
Prisoners

determined, based on their drug quantity, what
their guideline range would have been under
the pre-FSA statutory and guideline scheme.
Of the drug trafficking offenders sentenced
during this time period, 5,984 offenders would
have had a higher sentence under the pre-FSA
statutory and guideline scheme. These
offenders received average sentences of 71
months; had the FSA not passed, their average
sentence would have been 106 months. Based
on this difference, the Commission estimates
that the FSA will result in a savings of 15,320
bed-years to the Bureau of Prisons. 68

The retroactive impact on the federal prison
population resulted from the Commission’s
determination that the changes it made to the
guidelines in order to implement the FSA’s
changes to crack cocaine penalties should
apply to offenders who had previously been
sentenced under the 100-to-1 crack-to-powder
drug quantity ratio. The Commission

15,320
Prison Bed
Years Saved

concluded that the statutory changes in the
FSA “reflect[ed] congressional action
consistent with the Commission’s long-held
position that the then-existing statutory
penalty structure for crack cocaine
significantly undermine[d] the various
congressional objectives set forth in the
Sentencing Reform Act and elsewhere.” As of
December 2014, 6,880 crack cocaine offenders
had received reduced sentences; the
Commission estimates that these reductions
will result in a savings of 14,333 bed-years to
the Bureau of Prisons.

In total, the prospective and retroactive
changes made in response to the FSA resulted
in an approximate savings of 29,653 bed-years
to the Bureau of Prisons.

Impact of retroactive application of FSA…

6,880
Affected
Prisoners

14,333
Prison Bed
Years Saved

…For a total savings of 29,653 bed-years to the BOP.
SOURCE: U.S. Sentencing Commission Prison Impact Model 2011-2013 Datafiles, USSCFY11-USSCFY13; U.S. Sentencing Commission FSA Datafiles, Fair Sentencing Act, December 2014;
U.S. Sentencing Commission Final Crack Retroactivity Data Report.

Report to the Congress: Fair Sentencing Act of 2010

Cocaine Sentencing Disparity Reduction
Has there been an increase in use of
crack cocaine after the FSA?
Estimates of the prevalence of active drug
use in the United States are developed from
surveys. One frequently cited survey is the
National Survey on Drug Use and Health
(NSDUH), an annual survey of civilian,
noninstitutionalized people aged 12 years old
and older, sponsored by the Substance Abuse
and Mental Health Services Administration of
the Department of Health and Human
Services. 69 The NSDUH began to measure the
use of crack cocaine and powder cocaine
separately in the late 1980s. As Figure16A
illustrates, the FSA did not disrupt the trend of
declining crack cocaine use that began in 2008.
Number

The NSDUH collects data through first, a
random sample of households and noninstitutional group housing such as shelters,
rooming houses, and dormitories throughout
the United States, and then through face-toface interviews at the respondents’ places of
residence. 70 Due to limitations inherent in
surveys, data from self-report surveys should
be considered underestimates of actual drug
use and interpreted cautiously. But, because
the biases in the surveys appear to be
reasonably constant over time, comparisons of
reported use across years can be illuminating,
even if the reported rate of use in any given
year is an underestimate.

The rate of persons 18-25 years old who
reported having used crack cocaine in the past
year declined, from an estimated 1.0%

(n=328,000) in 2005, to an estimated 0.3%
(n=95,000) in 2013. The rate of persons 26
years old and older who reported having used
crack cocaine in the past year also declined,
from 0.5% (n=1,000,000) in 2005, to 0.3%
(n=526,000) in 2013.

Relative to other illicit drugs reported in the
survey, these numbers are small; in 2013,
approximately 12,448,000 persons aged 18-25
reported using any illicit drug in the past year,
as compared to the 95,000 persons 18-25 who
reported having used crack cocaine. Similarly,
in 2013, 24,856,000 persons aged 26 or older
reported using any illicit drug in the past year,
as compared to the 526,000 persons 26 or
older who reported having used crack cocaine.

Figure 16A.
Self-Reported Crack Cocaine Users
in the Past Year by Age,
2005-2013
The FSA did not disrupt the
ongoing decline in the number
of people who report using
crack cocaine in the last year.

SOURCE: 2013 National Survey on Drug Use and Health
(NSDUH), Tables 7.8A, 7.8B, 7.11A and 7.11B.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Section Three
Section Three of this report analyzes the impact of Section Three of the Fair Sentencing Act of 2010 related to the elimination of the mandatory
minimum penalty for simple possession of crack cocaine.

Report to the Congress: Fair Sentencing Act of 2010

Elimination of Mandatory Minimum for Simple Possession
What has been the impact of the FSA’s
removal of the mandatory minimum
for simple possession of crack cocaine?
Prior to the FSA, crack cocaine was the only
controlled substance with a mandatory
minimum for simple possession. 71 Section 3 of
the FSA amended the statutory penalties for
simple possession of controlled substances to
eliminate the 5-year mandatory minimum for
simple possession of more than 5 grams of
crack cocaine.
The number of crack cocaine simple
possession offenders has always been small,

and, following the enactment of the FSA, the
generally declining trend continued. As Figure
17A shows, there have been fewer than 50
crack cocaine simple possession cases in every
year since 2005, and in 2013 there were fewer
than ten such cases.
Even within the small group of crack
cocaine simple possession offenders, the
mandatory minimum has applied relatively
rarely and, as expected, the FSA’s elimination
of the mandatory minimum has reduced that
number to zero.

For the seven offenders sentenced in 2011
and 2012 to the mandatory minimum penalty,

it should be noted that each committed the
offense before enactment of the FSA on August
3, 2010, but was sentenced after that date.
After their original sentencings, these seven
offenders appealed their sentences on the
grounds that, because they were sentenced
after the FSA’s enactment, the FSA’s more
lenient penalties should apply. In each case,
the offender’s 5-year mandatory minimum
sentence was vacated and the offender was resentenced under the post-FSA statutory and
guideline scheme.

Figure 17A.
Number of Simple Possession
Crack Cocaine Offenders,
Fiscal Years 2005-2013
The number of offenders
subject to the mandatory
minimum for simple possession
of crack cocaine has always
been small, and as expected,
after the FSA is zero.

SOURCE: U.S. Sentencing Commission, FSA Datafiles.
For additional data and source information, see
Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Section Four
Section Four of this report analyzes the impact of Section Four of the Fair Sentencing Act of 2010 related to increased penalties for major drug
traffickers, specifically fine penalties.

Report to the Congress: Fair Sentencing Act of 2010

Increased Fine Penalties for Major Drug Traffickers
Section 4 of the FSA increased the amount
of the fine that a court may impose on a drug
trafficking offender. As with the statutory
maximum for sentences of imprisonment, the
maximum fine depends on both the drug
quantity and whether the offense is the
offender’s first conviction under the statute or
the offender’s second or subsequent conviction
under the statute. There are no minimum
fines.

21 U.S.C. §§ 841 and 960

Pre-FSA
Maximum Fine

Post-FSA
Maximum Fine

$2 million

$5 million

First offense
5-yr min

10-yr min

Second or subsequent offense

Only a small percentage of drug trafficking
offenders receive a fine of any amount, and the
percentage of drug trafficking offenders
receiving a fine has remained relatively stable
after the FSA.

5-yr min

10-yr min

$4 million

$10 million

$4 million

$8 million

$20 million

Among offenders whose sentence did
include a fine, the average fine stayed relatively
stable after the FSA.
Figure 18.
Fines Imposed for Drug Trafficking Offenders
Fiscal Years 2005-2013
Fiscal Year

Drug Trafficking
Offenders Receiving
Fines
Average Fine Amount

2005

2006

2007

2008

2009

2010

2011

2012

2013

11.0%

9.7%

9.9%

9.0%

9.1%

8.5%

8.0%

7.3%

7.8%

$7,972

$12,138

$8,039

$4,448

$8,061

$8,750

$13,673

$8,028

$9,978

SOURCE: U.S. Sentencing Commission, FSA Datafiles. For additional data and source information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Section Five
Section Five of this report analyzes the impact of Sections Five through Seven of the Fair Sentencing Act of 2010 related to enhancements for
violence as well as increased emphasis on other aggravating and mitigating factors.

Report to the Congress: Fair Sentencing Act of 2010

Increased Emphasis on Certain Aggravating Factors
Sections 5, 6 and 7 of the FSA directed the
Commission to add new provisions to the
guidelines that would increase or decrease a
drug trafficker’s sentence under certain
circumstances. These provisions were to apply
to all drug traffickers, not just crack cocaine
offenders; therefore, the analysis in this section
is based on a study of all drug trafficking
offenders since the FSA. These provisions have
applied rarely, although for most provisions
the numbers have steadily increased.
Section 5 of the FSA directed the
Commission to add “an additional penalty
increase of at least 2 offense levels if the
offender used violence, made a credible threat
to use violence, or directed the use of violence
during a drug trafficking offense.” Pursuant to
this directive, the drug trafficking guideline
provides such an increase. 72

organizing, leading, managing or supervising
other people involved in the offense. 75 If one of
these offenders used fear, impulse, friendship,
and/or affection to involve another person
who knew little about the enterprise and who
received little or no compensation, the offender
who involved that person would receive a 2level increase pursuant to this directive. 76
Similarly, if an aggravating role offender
distributed drugs to or involved in the offense
a minor, a person 65 years or older, a pregnant
person, or a person who was unusually
vulnerable due to a physical or mental
condition or otherwise particularly susceptible
to criminal conduct, the 2-level increase would
apply. 77 Finally, if an aggravating role offender
obstructed the investigation or prosecution of
the offense or committed the offense as part of
a criminal livelihood, the 2-level increase
would apply. 78

Section 6 of the FSA directed the
Commission to add 2-level increases for a
variety of conduct during a drug trafficking
offense. Pursuant to this directive, the
guidelines provide a 2-level increase for any
drug trafficker who bribes a law enforcement
official in connection with the offense. 73 Also
pursuant to this directive, the guidelines
provide a separate 2-level increase if an
offender maintained a premises (such as an
apartment or warehouse) for manufacturing or
distributing drugs. 74

Section 6 also directed the Commission to
provide another 2-level increase if a drug
trafficker engaged in one of several other types
of conduct during the offense, but only if the
offender was separately found to have played
an aggravating role in the offense (“super
aggravating role”). Under the guidelines, an
offender plays an aggravating role by

Application of Selected Aggravating Specific Offense Characteristics in Drug Trafficking Offenses
Fiscal Years 2011-2014

Total # of Cases

Fiscal Year
2011

Fiscal Year
2012

Fiscal Year
2013

Fiscal Year
2014

18,536

23,833

21,960

20,977

Violence

0.2%

0.4%

157

0.7%

141

0.7%

Premises

145

0.8%

483

2.0%

814

3.7%

919

4.4%

Bribery

Super AggRole

0.0%
0.2%

Report to the Congress: Fair Sentencing Act of 2010

106

0.0%
0.4%

153

0.1%
0.7%

159

0.1%
0.8%

Increased Emphasis on Certain Mitigating Factors
Section 7 of the FSA directed the
Commission to decrease the guideline range
for drug trafficking offenders who play a
minimal role in the offense under certain
circumstances. Under the guidelines, a
minimal participant is among the least culpable
and may not be aware of the overall enterprise
or others’ involvement. 79

Pursuant to the directive, a minimal
participant’s base offense level is “capped” at
32; that is to say, if a minimal participant is
accountable for a drug quantity that would
result in a base offense level that is higher than
32, the base offense level must be reduced to
32. 80 As Figure 19 reflects, the cap has
operated to reduce a drug trafficking offender’s
base offense level rarely, although the number
has increased annually.

Separately, pursuant to section 7, a minimal
participant would receive a 2-level decrease in
offense level if he or she had little knowledge of
the drug trafficking scheme, was not to receive
monetary compensation, and was motivated to
participate by an intimate or familial
relationship or by threats or fear when he or
she would otherwise have been unlikely to
commit a drug trafficking offense (“super
mitigating role”). 81 As Figure 19 reflects, this
reduction has also applied rarely, although the
number has generally increased.

Application of Selected Mitigating Specific Offense Characteristics in Drug Trafficking Offenses
Fiscal Years 2011-2014

Total # of Cases

Fiscal Year
2011

Fiscal Year
2012

Fiscal Year
2013

Fiscal Year
2014

18,536

23,833

21,960

20,977

Minimal Role Cap

0.1%

0.2%

0.3%

Super MitRole

0.2%

0.3%

Figure 19.
Application of SOCs in
Drug Trafficking Offenses,
Fiscal Years 2011-2014
The guideline increases and
decreases added in response
to Sections 5, 6, and 7 of the
FSA have all applied rarely.

SOURCE: U.S. Sentencing Commission, FSA
Datafiles. For additional data and source
information, see Appendix.

Report to the Congress: Fair Sentencing Act of 2010

Conclusion

Report to the Congress: Fair Sentencing Act of 2010

Conclusion
For more than twenty years, the
Commission has worked consistently with the
legislative, executive, and judicial branches of
government and other interested parties to
ensure that cocaine sentencing policy
promotes the goals of the Sentencing Reform
Act. During this time, the Commission
consistently took the position that the disparity
between crack cocaine and powder cocaine
penalties significantly undermined those goals.
Therefore, the Commission recommended that
Congress reduce crack cocaine penalties so
that the crack-to-powder drug quantity ratio
was no more than 20-to-1, and that Congress
repeal the mandatory minimum penalty for
simple possession of crack cocaine.

The Commission did not find a substantial
change in the seriousness of crack cocaine
offenders after the FSA as measured by drug
quantity, weapon involvement, function
performed, role in the offense, safety valve
application, or criminal history generally. The
Commission did find an increase in crack
cocaine offenders sentenced as Career
Offenders, and found that most of this increase
was concentrated among crack cocaine
offenders with lower drug quantities.

The Commission also observed that rates of
cooperation with law enforcement did not
change despite the changes in penalties, and
that the guidelines regained their relationship
to crack cocaine sentences.

Report to the Congress: Fair Sentencing Act of 2010

Studying the effect of these changes, the
Commission finds that the FSA reduced the
disparity between crack and powder cocaine
sentences, reduced the federal prison
population, and has resulted in fewer federal
prosecutions for crack cocaine. All this
occurred while crack cocaine use continued to
decline.

Endnotes

Report to the Congress: Fair Sentencing Act of 2010

Endnotes

Title II, Comprehensive Crime Control Act of
1984, Pub. L. No. 98-473 (1984).

United States Sentencing Commission
[hereinafter USSC or Commission], 2007
REPORT TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (May 2007) [hereinafter
2007 Commission Report]; USSC, 2002 REPORT
TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (May 2002) [hereinafter
2002 Commission Report]; USSC, 1997 SPECIAL
REPORT TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (AS DIRECTED BY SECTION 2 OF
PUB. L. NO. 104–38) (April 1997) [hereinafter
1997 Commission Report]; USSC, 1995 SPECIAL
REPORT TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (AS DIRECTED BY SECTION
280006 OF PUB. L. NO. 103–322) (February
1995) [hereinafter 1995 Commission Report].
2

USSC, 2007 Commission Report, at 8; USSC,
2002 Commission Report, at 93-103; USSC,
1997 Commission Report, at 9; USSC, 1995
Commission Report, at 195-98.
4
5

USSC, 2007 Commission Report, at 8.

USSG, App. C, amend. 706 (effective Nov. 1,
2007).
6

Fair Sentencing Act of 2010, Pub. L. No. 111–
220, 124 Stat. 2372 (Aug. 3, 2010), at sections
2-3.

7
8
9

Id. at sections 5-7.
Id. at section 10.

Although the early reports implicated crack
cocaine, witness testimony a year later
revealed that the drug Bias used was powder
cocaine. See USSC, 1995 Commission Report,
at 122.
10
11

Pub. L. No. 99–570 (1986).
Id.

For a detailed history of mandatory
minimums, see USSC, REPORT TO THE CONGRESS:
MANDATORY MINIMUM PENALTIES IN THE FEDERAL
CRIMINAL JUSTICE SYSTEM (October 2011), at
Chapter 2.
13 USSC, 2002 Commission report, at 10-11.
14

Pub. L. No. 100–690 (1988).

Id.

Id. at 195-98.

Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322 (Sept. 13,
1994).
17
19

USSC, 1995 Commission Report.

60 Fed. Reg. 25074 (May 10, 1995) (listing
the proposed amendment).

Report to the Congress: Fair Sentencing Act of 2010

Pub. L. No. 104-38 (Oct. 30, 1995).

USSC, 2002 Commission Report.

21
23
24
25

USSC, 1997 Commission Report, at 9.
Id. at 93-103.

United States v. Booker, 543 U.S. 220 (2005).

United States v. Kimbrough, 552 U.S. 85
(2007); Spears v. United States, 555 U.S. 261
(2009).
26

Spears, 555 U.S. at 265-66.

Id.

USSG, App. C, amend. 706 (effective Nov. 1,
2007), as amended by amend. 711 (effective
Nov. 1, 2007); Spears v. United States, 555 U.S.
261 (2009).
29

USSG, App. C, amend. 713 (effective March 3,
2008). Under 28 U.S.C. § 994(u), when the
Commission reduces a guideline range, it is
directed to specify whether, and in what
circumstances, the reduction should apply to
offenders who had been sentenced under the
previous, higher version of the guideline.
30

U.S. Dept. of Justice, Attorney General John
Ashcroft, Memorandum: Department Policy
Concerning Charging Criminal Offenses,
Disposition of Charges, and Sentencing
(September 22, 2003).

Endnotes
31

U.S. Dept. of Justice, Attorney General Eric
Holder, Memorandum: Department Policy on
Charging and Sentencing (May 19, 2010).
32

U.S. Dept. of Justice, Attorney General Eric
Holder, Memorandum: Department Policy on
Charging Mandatory Minimum Sentences and
Recidivist Enhancements in Certain Drug Cases
(August 12, 2013).
33

Fair Sentencing Act of 2010, Pub. L. No. 111–
220 (Aug. 3, 2010).
34

Id.

35 USSG, App. C, amend. 750 (effective Nov. 1,
2011) (implementing as permanent the
temporary, emergency amendment (USSG,
App. C, amend. 748 (effective Nov. 1, 2010))
that implemented the FSA); USSG, App. C,
Amend. 759 (effective Nov. 1, 2011).
36

U.S. Dept. of Justice, Attorney General Eric
Holder, Memorandum: Application of the
Statutory Mandatory Minimum Sentencing
Laws for Crack Cocaine Offenses Amended by
the Fair Sentencing Act of 2010 (July 15, 2011).
37

Dorsey v. United States, 132 S. Ct. 2321, 2335
(2013).

USSG, App. C, amend. 782 (effective Nov. 1,
2014) (reducing drug trafficking offense
penalties across all drug types); USSG, App.
C., Amend. 788 (effective Nov. 1, 2014)
(making the 2-level reduction for all drug
types retroactive with the proviso that no
offender may be released before November 1,
2015).
38

39 Fair Sentencing Act of 2010, Pub. L. No. 111–
220 (Aug. 3, 2010).
40

Id.

41 USSG, App. C, amend. 750 (effective Nov. 1,
2011) (implementing as permanent the
temporary, emergency amendment (USSG,
App. C, amend 748 (effective Nov. 1, 2010))
that implemented the FSA).
42
43

Id.
Id.

44 USSC, Recidivism Among Offenders

Receiving Retroactive Sentence Reductions
(May 2014), available at:
http://www.ussc.gov/sites/default/files/pdf/r
esearch-and-publications/research-projectsandsurveys/miscellaneous/20140527_Recidivism_
2007_Crack_Cocaine_Amendment.pdf.
45

USSG, App. C, amend. 706 (effective Nov. 1,
2007), as amended by amend. 711 (effective
Nov. 1, 2007).
46

United States v. Kimbrough, 552 U.S. 85
(2007); Spears v. United States, 555 U.S. 261
(2009).
47

See Appendix Figure 1B.

48 See, e.g., 21 U.S.C. §§ 841 et seq. and 960 et
seq.
49

USSG, §2D1.1(a)(5) (2014).

50 USSG, §3B1.1 (Aggravating Role) (effective
Nov. 1, 2014). The FSA directed the
Commission to amend the guidelines to
increase sentences for these offenders when
certain other offense conduct is present; for
further discussion, see Section Five of this
report.
51

Id.

USSG, §3B1.1, Cmt. n. 4 (2014).

52
54

USSG, §3B1.1, Cmt. n. 4 (2014).

USSG, §3B1.2 (Mitigating Role) (effective
Nov. 1, 2014). The FSA directed the
Commission to amend the guidelines to
decrease sentences for these offenders when
certain other offense conduct is present; for
further discussion, see Section Five of this
report.

Id.

USSG, §3B1.2, Cmt. n. 5 (2014).

56
58

USSG, §3B1.2, Cmt. n. 4 (2014).

USSG, §4A1.1 (Criminal History Category)
(2014).
59

Id.

USSG, §4B1.1 (Career Offender) (2014).

USSG, §1B1.1 (Application Instructions)
(2014).
62 Id.

Report to the Congress: Fair Sentencing Act of 2010

Endnotes
63

Id.; see also 28 U.S.C. 994(h) (directing that
the guideline range for a career offender be at
or near the statutory maximum).
64

USSG, §5C1.2 (Limitation on Applicability of
Statutory Minimum Sentences in Certain
Cases) (2014).
65

USSG, §2D1.1(b)(17) (2014).

FSA, at section 2 (entitled “Cocaine
Sentencing Disparity Reduction).

67 USSG, App. C, amend. 750 (effective Nov. 1,
2011) (implementing as permanent the
temporary, emergency amendment (USSG,
App. C, amend. 748 (effective Nov. 1, 2010))
that implemented the FSA).
68

The methodology for this analysis is based
on the Commission’s Prison Impact Model,
which has been in use in some form since the
guidelines were first developed. This model is
used to estimate the impact of statutory and
guideline amendments on federal offenders

and to project the future impact those
amendments will have on bed space in the
BOP. For this analysis, those offenders who
appear to have received a lower sentence as a
result of the FSA were hypothetically
“resentenced” with the computer program as if
the statutory and guideline changes resulting
from the FSA had not been In effect. A new
release date for each offender also was
calculated in order to determine when the
offender would be eligible for release if he or
she were to receive the full reduction in
sentence provided by the amendment.
69 In 2002, the name of the survey was
changed from the National Household Survey
on Drug Abuse (NHSDA).
70

Department of Health and Human Services,
Substance Abuse and Mental Health Services,
Results from the 2013 National Survey on Drug
Use and Health Summary of Findings (NSDUH).
Available at:
http://www.samhsa.gov/data/sites/default/fil

Report to the Congress: Fair Sentencing Act of 2010

es/NSDUHresultsPDFWHTML2013/Web/NSD
UHresults2013.pdf.
71

Pub. L. No. 100–690 (1988).

USSG, §2D1.1(b)(11) (2014).

72
74
75
76
77
78
79
80
81

USSG, §2D1.1(b)(2) (2014).

USSG, §2D1.1(b)(12) (2014).
USSG, §3B1.1 (2014).

USSG, §2D1.1(b)(15) (2014).
USSG, §2D1.1(b)(15) (2014).

USSG, §2D1.1(b)(15) (2014).
USSG, §3B1.2 (2014).

USSG, §2D1.1(a)(5) (2014).

USSG, §2D1.1(b)(16) (2014).

Appendix

Report to the Congress: Fair Sentencing Act of 2010

Appendix

Figure 1A.
Number of Powder Cocaine and Crack Cocaine Trafficking Offenders
Fiscal Years 1992-2014
Crack Cocaine

Powder Cocaine

Number
7,500
7,000
Crack-2

6,500

FSA

6,000
5,500
5,000
4,500
4,000
3,500
3,000
2,500
2,000
1,500
1,000
500
0
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal Enterprise),
2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a primary drug type of
powder or crack cocaine were included in this analysis.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-1

Appendix

Figure 1B.
Number of Drug Trafficking Offenders by Primary Drug Type
Fiscal Years 1992-2014

Fiscal Year

Powder Cocaine

Crack Cocaine

Heroin

Marijuana

Methamphetamine Other Drug

1992

5,874

2,124

1,040

3,391

663

493

1993

5,351

3,194

1,400

3,963

725

529

1994

4,616

3,351

1,308

4,080

877

507

1995

3,900

3,506

1,192

3,418

1,025

267

1996

4,020

4,301

1,532

3,715

1,471

395

1997

4,311

4,328

1,589

4,699

1,804

456

1998

4,407

4,523

1,607

5,634

2,153

357

1999

4,595

4,816

1,611

6,441

2,675

500

2000

4,960

4,661

1,647

6,801

3,063

483

2001

4,891

4,599

1,590

7,440

3,177

670

2002

5,112

4,560

1,535

6,715

3,634

1,141

2003

5,426

5,022

1,589

5,594

4,130

1,299

2004

4,939

4,482

1,544

5,675

4,321

897

2005

5,174

4,965

1,526

5,604

4,521

929

2006

5,495

5,337

1,451

5,903

5,071

833

2007

5,949

5,230

1,278

5,847

4,812

834

2008

5,664

5,818

1,401

6,056

4,127

1,014

2009

5,782

5,473

1,551

5,904

3,947

1,193

2010

5,539

4,730

1,554

6,081

4,137

1,401

2011

5,895

4,229

1,765

6,762

4,423

1,476

2012

5,950

3,409

2,135

6,792

4,756

1,521

2013

5,358

2,912

2,168

4,768

5,333

1,676

2014

4,795

2,366

2,347

3,822

6,043

1,723

A-2

Appendix
Figure 2.
Selected Characteristics of Crack Cocaine Trafficking Offenders
Fiscal Years 2010 and 2014

Crack Cocaine
FY10
FY14
AVERAGE AGE

GUILTY PLEA

%
95.2

%
95.8

RACE/ETHNICITY
White
Black
Hispanic
Other

7.3
78.7
13.0
1.1

6.5
83.4
8.6
1.5

GENDER
Male
Female

91.6
8.4

90.2
9.8

CITIZENSHIP
U.S. Citizen
Non-U.S. Citizen

97.3
2.7

97.8
2.2

Only offenders sentenced with complete guideline application under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal Enterprise),
2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a primary drug
type of crack cocaine were included in this analysis. Offenders missing information on a given analysis were excluded from that analysis.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-3

Appendix
Figure 3A.
Districts with Crack Cocaine as the Primary Drug Type
Fiscal Years 2010 and 2014

Fiscal Year 2010

Fiscal Year 2014

A-4

Appendix

Figure 3B.
Districts with Crack Cocaine as the Primary Drug Type
Fiscal Year 2010

Fiscal
Year
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010

District
Kentucky, Western
Michigan, Eastern
Virginia, Western
Florida, Northern
Tennessee, Western
Alabama, Northern
New York, Western
Wisconsin, Eastern
Missouri, Eastern
New Hampshire
Pennsylvania, Eastern
Indiana, Northern
Michigan, Western
Virginia, Eastern
Mississippi, Southern
Georgia, Southern
Massachusetts
Louisiana, Western
Alaska

Total
Number
Number
of
of
Crack
Drug
Offenders Offenders
42
56
55
37
61
31
67
69
101
30
102
53
49
161
34
84
68
53
22

176
226
204
136
219
108
221
213
311
92
311
161
141
426
90
222
175
134
55

Percent
23.9
24.8
27.0
27.2
27.9
28.7
30.3
32.4
32.5
32.6
32.8
32.9
34.8
37.8
37.8
37.8
38.9
39.6
40.0

Fiscal
Year
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010

District
Vermont
Illinois, Southern
North Carolina, Western
Pennsylvania, Middle
Wisconsin, Western
North Carolina, Middle
South Carolina
Louisiana, Eastern
Georgia, Middle
North Carolina, Eastern
Pennsylvania, Western
Mississippi, Northern
West Virginia, Southern
Louisiana, Middle
West Virginia, Northern
Illinois, Central
Puerto Rico

Number
of
Crack
Offenders

Total
Number
of
Drug
Offenders

23
60
93
82
37
86
243
63
51
144
96
28
59
23
72
98
275

56
142
210
184
83
176
494
127
102
279
185
53
111
43
130
175
483

Percent
41.1
42.3
44.3
44.6
44.6
48.9
49.2
49.6
50.0
51.6
51.9
52.8
53.2
53.5
55.4
56.0
56.9

A-5

Appendix

Figure 3C.
Districts with Crack Cocaine as the Primary Drug Type
Fiscal Year 2014

Fiscal
Year

District

2014
Massachusetts
2014
New York, Southern
2014 West Virginia, Northern
2014 North Carolina, Eastern
2014
Louisiana, Eastern
2014
Alabama, Middle
2014
Vermont
2014
Georgia, Middle
2014
Mississippi, Northern

Total
Number
Number
of
of
Crack
Drug
Offenders Offenders
35
173
56
81
41
16
44
59
33

151
583
166
231
115
43
113
147
77

Percent
23.2
29.7
33.7
35.1
35.7
37.2
38.9
40.1
42.9

A-6

Appendix

Figure 4A.
Median Drug Weight in Crack Cocaine Trafficking Offenses
Fiscal Years 2005-2013

Weight (grams)
100
90
78.7

70.0

69.8

70
60.6
56.7
50.2

52.8

55.0
51.0

40
30
20
10
0
2005

2006

2007

2008

2009

2010

2011

2012

2013

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. Offenders with missing information on the exact weight of crack cocaine involved in the offense (including
offenders with a range of weights) were excluded from the drug weight analysis.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-7

Appendix

Figure 4B.
Median Drug Weight in Crack Cocaine Trafficking Offenses
Fiscal Years 2005-2013

Number
Total
of
Number Offenders
Fiscal
of
Missing
Year Offenders Weight

Number
of
Offenders
in
Weight
Analysis

Median
Crack
Weight
(in
grams)

2005

4,965

1,114

3,851

56.7

2006

5,337

945

4,392

50.2

2007

5,230

882

4,348

52.8

2008

5,818

1,117

4,701

51.0

2009

5,473

907

4,566

55.0

2010

4,730

919

3,811

60.6

2011

4,229

684

3,545

69.8

2012

3,409

643

2,766

78.7

2013

2,912

678

2,234

70.0

A-8

Appendix

Figure 5A.
Median Base Offense Level in Crack Cocaine Trafficking Offenses
Fiscal Years 2005-2013

BOL
38
36
34
32

32
30

30
28

26
24

2011

2012

2013

22
20
18
16
14
12
10
8
6
4
2
0
2005

2006

2007

2008

2009

2010

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5
(Continuing Criminal Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or
2D1.14 (Narco-Terrorism) with a primary drug type of crack cocaine were included in this analysis. Base Offense Level values reflect the BOL from the Drug
Quantity Table (DQT) at USSG §2D1.1 prior to the application of the mitigating role cap or any adjustments under other guideline provisions. Offenders with BOLs
determined by guideline provisions without reference to the DQT (e.g., §2D1.1(a)(1), §2D1.2(a)(4)) and offenders missing information required to determine the BOL
prior to the application of the mitigating role cap were excluded from the median base offense level computation.
A-9

SOURCE: U.S. Sentencing Commission, FSA Datafiles.

Appendix

Figure 5B.
Median Base Offense Level in Crack Cocaine Trafficking Offenses
Fiscal Years 2005-2013

Number
of
Total
Offenders
Number
Missing
Fiscal
of
Uncapped
Year Offenders
BOL

Number
of
Offenders
in
BOL
Median
Analysis
BOL

2005

4,965

4,919

2006

5,337

5,297

2007

5,230

5,216

2008

5,818

5,798

2009

5,473

5,469

2010

4,730

4,726

2011

4,229

4,223

2012

3,409

3,399

2013

2,912

2,910

Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5
(Continuing Criminal Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or
2D1.14 (Narco-Terrorism) with a primary drug type of crack cocaine were included in this analysis. Base Offense Level values reflect the BOL from the Drug
Quantity Table (DQT) at USSG §2D1.1 prior to the application of the mitigating role cap or any adjustments under other guideline provisions. Offenders with BOLs
determined by guideline provisions without reference to the DQT (e.g., §2D1.1(a)(1), §2D1.2(a)(4)) and offenders missing information required to determine the BOL
prior to the application of the mitigating role cap were excluded from the median base offense level computation.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-10

Appendix

Figure 6A.
Most Serious Function of Crack Cocaine Trafficking Offenders
Select Fiscal Year Samples

2000

Percent
100.0

2005

2009

2013

90.0
80.0
70.0

64.5

60.0

55.4
47.0 47.6

50.0
40.0
27.9 26.5

30.0
22.7

20.0
10.0

4.9

6.8

6.6

4.1 3.6
0.0

0.0
HLS_Org/Lead

9.6

4.9

1.6

Manufacturer

13.0 11.6 13.2

12.7

Wholesaler

11.4

2.0 1.2 1.3
Mgr/Sup

SLD

Low Level

For the Fiscal Year 2000, 2009, and 2013 Samples, only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2
(Protected Locations), 2D1.5 (Continuing Criminal Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human
Life), or 2D1.14 (Narco-Terrorism) with a primary drug type of crack cocaine were included in this analysis. For the Fiscal Year 2005 Sample, only offenders sentenced under
USSG §2D1.1 (Drug Trafficking) with a primary drug type of crack cocaine were included in the analysis. Cases missing information on most serious offender function were
excluded from the analysis. The ‘Low Level Functions’ category includes offenders classified as: financier/money launderer, pilot/captain, bodyguard/strongman/debt collector,
chemist/cook/chemical supplier, broker/go-between, courier, mule, renter/storer, money runner, off loader/loader, gopher/lookout/deckhand/employee, enabler, user only or “other”
function.
A-11

SOURCE: U.S. Sentencing Commission, FSA Datafiles.

Appendix

Figure 6B.
Most Serious Function of Crack Cocaine Trafficking Offenders
Select Fiscal Year Samples

Most Serious
Offender Function

Fiscal
Year

Percent

Importer/High-Level Supplier

2000
2005
2009
2013

4
21
4
0

0.4
1.8
0.5
0.0

Organizer/Leader

2000
2005
2009
2013

41
58
30
26

Manufacturer

2000
2005
2009
2013

Financier/Money Launderer

Most Serious
Offender Function

Fiscal
Year

Percent

Manager

2000
2005
2009
2013

27
17
6
7

2.9
1.5
0.7
1.0

4.5
5.0
3.6
3.6

Bodyguard/Strongman/
Debt Collector

2000
2005
2009
2013

10
6
4
5

1.1
0.5
0.5
0.7

0
18
54
69

0.0
1.6
6.6
9.6

Chemist/Cook/Chemical

2000
2005
2009
2013

25
28
11
5

2.7
2.4
1.3
0.7

2000
2005
2009
2013

1
0
1
1

0.1
0.0
0.1
0.1

Supervisor

2000
2005
2009
2013

18
6
4
2

2.0
0.5
0.5
0.3

Pilot/Captain

2000
2005
2009
2013

0
0
0
0

n/a
n/a
n/a
n/a

Street Level Dealer

2000
2005
2009
2013

592
643
387
343

64.5
55.4
47.0
47.6

Wholesaler

2000
2005
2009
2013

117
263
230
191

12.7
22.7
27.9
26.5

Broker/Go-Between

2000
2005
2009
2013

23
29
26
27

2.5
2.5
3.2
3.8

A-12

Appendix

Figure 6B. (continued)
Most Serious Function of Crack Cocaine Trafficking Offenders
Select Fiscal Year Samples

Most Serious
Offender Function

Fiscal
Year

Percent

Courier

2000
2005
2009
2013

20
15
21
7

2.2
1.3
2.5
1.0

Mule

2000
2005
2009
2013

3
1
2
0

Renter/Storer

2000
2005
2009
2013

Money Runner

Most Serious
Offender Function

Fiscal
Year

Percent

Enabler

2000
2005
2009
2013

5
4
4
1

0.5
0.3
0.5
0.1

0.3
0.1
0.2
0.0

User Only

2000
2005
2009
2013

2
8
1
0

0.2
0.7
0.1
0.0

8
7
12
9

0.9
0.6
1.5
1.3

Other

2000
2005
2009
2013

0
0
2
2

0.0
0.0
0.2
0.3

2000
2005
2009
2013

6
7
1
0

0.7
0.6
0.1
0.0

Off Loader/Loader

2000
2005
2009
2013

0
1
0
0

0.0
0.1
0.0
0.0

Gopher/Lookout/
Deckhand/Employee

2000
2005
2009
2013

16
28
24
25

1.7
2.4
2.9
3.5

Appendix

Figure 6C.
Drug Offender Function Codes
Special Coding Project, Select Fiscal Year Samples

The function codes are listed in descending order from most serious to least serious.

1 = Importer/High Level Supplier
(Imports or otherwise supplies large quantities of drugs (1 kilogram or more); is near the top of the distribution chain;
has ownership interest in drugs (not merely transporting drugs for another individual); usually supplies drugs to other
drug distributors and generally does not deal in retail amounts; may employ no or very few subordinates.)
2 = Organizer/Leader
(Organizes, leads, directs, or otherwise runs a drug distribution organization; has the largest share of the profits and the
most decision-making authority.)
3 = Grower/Manufacturer
(Grows, cultivates, or manufactures a controlled substance, and is the principal owner of the drugs.)
4 = Financier/Money Launderer
(Provides money for purchase, importation, manufacture, cultivation, transportation, or distribution of drugs;
launders proceeds of drugs sales or purchases. Not an individual who merely transports money for the organization.)
5 = Aircraft Pilot/Vessel Captain
(Pilots vessel or aircraft; requires special skill; does not include offender who is only participant directing a small boat (e.g.,
a go-fast boat) onto which drugs had been loaded from a “mother ship” (such person is a courier).)
6 = Wholesaler
(Sells more than retail/user-level quantities in a single transaction; sells at least 1 ounce (28 grams) but less than 1 kilogram
at one time, possesses or buys at least 2 ounces (56 grams) at one time, sells any amount to another dealer.)
7 = Manager
(Serves as a lieutenant to assist one of the above; manages all or a significant portion of a drug manufacturing,
importation, or distribution operation; takes instructions from one of the above and conveys to subordinates; supervises
directly at least one other co-participant in an organization of at least five co-participants.)

A-14

Appendix

Figure 6C. (continued)
Drug Offender Function Codes
Special Coding Project, Select Fiscal Year Samples

8 = Bodyguard/Strongman/Debt collector
(Provides physical and personal security for another co-participant in the offense; collects debts owed, or
punishes recalcitrant persons.)
9 = Chemists/Cooks/Chemical Supplier
(Produces LSD, methamphetamine, crack or other illegal drugs, but does not qualify as a Grower/Manufacturer because he/
she is not the principal owner of the drugs. Chemical supplier does not handle drugs themselves but engages in the
unlawful diversion, sale, or furnishing of listed chemicals or equipment used in the synthesis or manufacturing of
controlled substances.)
10 = Supervisor
(Supervises at least one other co-participant, however, has limited authority and does not qualify as a Manager.)
11 = Street Level Dealer
(Distributes retail quantities directly to the user; sells less than 1 ounce (28 grams) quantities to any user(s); if any amount is
sold to another dealer use the wholesaler function.).
12 = Broker/Steerer/Go Between
(Arranges for two parties to buy/sell drugs, or directs potential buyer to a potential seller.)
13 = Courier
(Transports or carries drugs with the assistance of a vehicle or other equipment. Includes situations where the offender,
who is otherwise considered to be a crew member, is the only participant directing a vessel onto which drugs had been
loaded from a “mother-ship.”)
14 = Mule
(Transports or carries drugs internally or on their person, often by airplane, or by walking across a border. Also, includes an
offender who only transports or carries drugs in baggage, souvenirs, clothing, otherwise.)
15 = Renter/Storer
(Provides (for profit/compensation) own residence, structures (barns, storage bins, buildings), land, or equipment for use to
further the offense. This offender is distinguished from the enabler because he is paid (in some way) for his services.)
A-15

Appendix

Figure 6C. (continued)
Drug Offender Function Codes
Special Coding Project, Select Fiscal Year Samples

16 = Money Runner
(Transports/carries money and/or drugs to and from the street-level dealer.)
17 = Off Loader/Loader
(Performs the physical labor required to put large quantities of drugs into storage, hiding, or onto some mode of
transportation.)
18 = Gopher/Lookout/Deckhand/Worker/Employee
(Performs very limited, low-level function in the offense (whether or not ongoing); includes running errands, answering the
telephone, receiving packages, packaging the drugs, manual labor, acting as a lookout to provide early warnings during
meetings, exchanges, or off-loading, or acting as a deckhand/crew member on vessel or aircraft used to transport large
quantities of drugs.)
19 = Enabler (Passive)
(Plays no more than passive role in the offense, knowingly permitting certain unlawful criminal activity to take place
without affirmatively acting in any way to further such activity; may be coerced or unduly influenced to play such a function
(e.g. a parent or grandparent threatened with displacement from a home unless they permit the activity to take place), or may
do so as a “favor” (without compensation).)
20 = User Only
(Possesses small amount of drugs apparently for personal use only; no apparent function in any conspiratorial criminal
activity.)
77 = Other (specify)
(Use this code if none of the codes above adequately describe the function of the offender. Provide a short description
detailing the activities, responsibilities, or function of the offender.)

Example: The police use an undercover agent to arrest offenders for participating in a larger conspiracy of planning to rob an individual who they
believe is a high level drug importer. The offenders are all apprehended in the midst of approaching the house and there is no mention as to what
they plan to do with the drugs once they stole them. There is no explanation as to how the police zeroed in on these defendants to begin with. These
offenders could be coded as ‘Other’ with an explanation of ‘Drug Thief’ since they do not fit any other function definition.)

99 = Missing/Indeterminable

A-16

Appendix
Figure 7A.
Rate of 18 U.S.C. § 924(c) and §2D1.1 Weapon SOC for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0

29.2

27.2

29.9

27.5

28.8

27.7

2008

2009

2010

25.9

26.8

2011

2012

28.6

20.0
10.0
0.0
2005

2006

2007

2013

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. The analysis includes offenders with a conviction under 18 U.S.C. § 924(c) and/or the application of the
weapon enhancement at USSG §2D1.1(b)(1). Offenders sentenced under guideline provisions without reference to USSG §2D1.1 and those with invalid values of
USSG §2D1.1(b)(1) are missing information on the application of the weapon enhancement at USSG §2D1.1(b)(1).
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-17

Appendix
Figure 7B.
Rate of 18 U.S.C. § 924(c) and §2D1.1 Weapon SOC for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 1,427 29.2
2006 1,443 27.2
2007 1,562 29.9
2008 1,594 27.5
2009 1,576 28.8
2010 1,308 27.7
2011 1,094 25.9
2012

914 26.8

2013

833 28.6

Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. The analysis includes offenders with a conviction under 18 U.S.C. § 924(c) and/or the application of the
weapon enhancement at USSG §2D1.1(b)(1). Offenders sentenced under guideline provisions without reference to USSG §2D1.1 and those with invalid values of
USSG §2D1.1(b)(1) are missing information on the application of the weapon enhancement at USSG §2D1.1(b)(1).
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-18

Appendix
Figure 7C.
Rate of USSG §2D1.1 Weapon SOC Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0

18.4

16.3

19.4

18.0

19.7

18.7

18.1

18.8

19.5

2007

2008

2009

2010

2011

2012

2013

10.0
0.0
2005

2006

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. Offenders sentenced under guideline provisions without reference to USSG §2D1.1 and those with invalid
values of USSG §2D1.1(b)(1) are missing information on the application of the weapon enhancement at USSG §2D1.1(b)(1).
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-19

Appendix
Figure 7D.
Rate of USSG §2D1.1 Weapon SOC Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005

897 18.4

2006

865 16.3

2007

1,013 19.4

2008

1,042 18.0

2009

1,080 19.7

2010

883 18.7

2011

764 18.1

2012

641 18.8

2013

568 19.5

A-20

Appendix
Figure 7E.
Rate of 18 U.S.C. § 924(c) Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.8

11.0

10.7

9.6

9.1

8.0

8.3

9.2

2005

2006

2007

2008

2009

2010

2011

2012

2013

10.0
0.0

Appendix
Figure 7F.
Rate of 18 U.S.C. § 924(c) Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 537 10.8
2006 588 11.0
2007 557 10.7
2008 558

9.6

2009 499

9.1

2010 431

9.1

2011 339

8.0

2012 282

8.3

2013 269

9.2

A-22

Appendix
Figure 8A.
Rate of Aggravating Role Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.0

5.6

4.5

4.8

4.7

5.0

5.6

5.4

6.0

6.9

2005

2006

2007

2008

2009

2010

2011

2012

2013

0.0
Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. The analysis includes offenders with any positive value under USSG §3B1.1.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-23

Appendix
Figure 8B.
Rate of Aggravating Role Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 277 5.6
2006 241 4.5
2007 250 4.8
2008 272 4.7
2009 276 5.0
2010 266 5.6
2011 228 5.4
2012 206 6.0
2013 202 6.9

A-24

Appendix
Figure 9A.
Rate of Mitigating Role Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.0

6.6

6.7

6.0

5.8

5.7

4.4

3.9

5.2

4.5

2005

2006

2007

2008

2009

2010

2011

2012

2013

0.0
Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5
(Continuing Criminal Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or
2D1.14 (Narco-Terrorism) with a primary drug type of crack cocaine were included in this analysis. The analysis includes offenders with any negative value under
USSG §3B1.2. In addition, offenders sentenced under USSG §2D1.8(a)(2) are included as receiving mitigating role.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-25

Appendix

Figure 9B.
Rate of Mitigating Role Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 329 6.6
2006 355 6.7
2007 313 6.0
2008 339 5.8
2009 311 5.7
2010 207 4.4
2011 164 3.9
2012 176 5.2
2013 130 4.5

A-26

Appendix

Figure 10A.
Trend in Criminal History Category for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0

Category I

Category II

23.4

24.2

8.1

7.9

27.6

Category IV

Category III
25.3

Category V

Category VI

27.9

28.3

26.9

26.8

8.1

8.0

6.5
12.1

28.5

90.0
80.0
70.0

12.7

60.0
50.0

20.7

20.4

7.5

8.4

12.0

19.9

19.5

12.7

11.7

12.9

17.9

18.2

19.8

21.3

8.4
12.3
19.6

40.0
30.0
20.0

12.6

12.4

12.0

12.3

11.4

11.8

12.0

22.5

22.3

21.0

22.6

21.9

22.0

20.3

21.4

2005

2006

2007

2008

2009

2010

2011

2012

11.9
19.2

10.0
0.0
2013

Fiscal Year

A-27

Appendix

Figure 10B.
Trend in Criminal History Category for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal Number Percent
Year CHC I CHC I

Number Percent
CHC II CHC II

Number Percent
Percent
CHC
CHC Number CHC
III
III
CHC IV
IV

Number Percent Number
CHC V CHC V CHC VI

Percent
CHC
VI

2005

1,116

22.5

624

12.6

1,027

20.7

632

12.7

404

8.1

1,161

23.4

2006

1,192

22.3

663

12.4

1,090

20.4

677

12.7

423

7.9

1,292

24.2

2007

1,099

21.0

625

12.0

1,041

19.9

630

12.0

394

7.5

1,441

27.6

2008

1,312

22.6

715

12.3

1,132

19.5

698

12.0

487

8.4

1,474

25.3

2009

1,200

21.9

625

11.4

982

17.9

697

12.7

442

8.1

1,527

27.9

2010

1,041

22.0

556

11.8

862

18.2

554

11.7

377

8.0

1,340

28.3

2011

858

20.3

507

12.0

839

19.8

547

12.9

339

8.0

1,139

26.9

2012

729

21.4

409

12.0

725

21.3

413

12.1

221

6.5

912

26.8

2013

559

19.2

346

11.9

572

19.6

358

12.3

246

8.4

831

28.5

A-28

Appendix

Figure 11A.
Rate of Career Offender Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0

14.9

15.0

2005

2006

17.9

16.7

17.7

19.4

18.5

18.8

20.2

2007

2008

2009

2010

2011

2012

2013

10.0
0.0
Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. The analysis reflects the overall rate of career offender application under USSG §4B1.1 regardless of whether or
not the application of career offender impacted the Final Offense Level or Criminal History Category.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-29

Appendix

Figure 11B.
Rate of Career Offender Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 739 14.9
2006 801 15.0
2007 936 17.9
2008 974 16.7
2009 967 17.7
2010 916 19.4
2011 782 18.5
2012 642 18.8
2013 589 20.2

A-30

Appendix
Figure 12A.
Career Offender Application by Base Offense Level for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0

21.0 20.8 21.0
14.2 13.7

23.9

16.2 16.2 16.7

15.9 15.2

17.9 16.6 18.2 18.4 17.3 19.0 18.8

14.5 15.2

19.2
18.2 17.5 17.8 19.5 18.6
16.6

10.0
0.0
2
0
0
5

2
0
0
6

2
0
0
7

2
0
0
8

2
0
0
9

2
0
1
0

2
0
1
1

2
0
1
2

2
0
1
3

BOL 6-24

2
0
0
5

2
0
0
6

2
0
0
7

2
0
0
8

2
0
0
9

2
0
1
0

BOL 26-30

2
0
1
1

2
0
1
2

2
0
1
3

2
0
0
5

2
0
0
6

2
0
0
7

2
0
0
8

2
0
0
9

2
0
1
0

2
0
1
1

2
0
1
2

2
0
1
3

Fiscal Year

BOL 32-38

Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. Base Offense Level values reflect the BOL from the Drug Quantity Table (DQT) at USSG §2D1.1 prior to the
application of the mitigating role cap or any adjustments under other guideline provisions. Offenders with BOLs determined by guideline provisions without reference to the
DQT (e.g., §2D1.1(a)(1), §2D1.2(a)(4)) and offenders missing information required to determine the BOL prior to the application of the mitigating role cap were excluded from
the analysis. The analysis reflects the overall rate of career offender application under USSG §4B1.1 regardless of whether or not the application of career offender impacted the
Final Offense Level or Criminal History Category.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-31

Appendix
Figure 12B.
Career Offender Application by Base Offense Level for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

Number Percent
BOL
BOL
6-24
6-24

Number Percent
BOL
BOL
26-30
26-30

Number Percent
BOL
BOL
32-38
32-38

2005

14.2

281

15.9

392

14.5

2006

13.7

310

15.2

424

15.2

2007

16.2

357

17.9

515

18.2

2008

231

16.2

427

16.6

316

17.5

2009

244

16.7

438

18.2

284

17.8

2010

242

21.0

395

18.4

278

19.5

2011

232

20.8

358

17.3

192

18.6

2012

169

21.0

318

19.0

153

16.6

2013

177

23.9

261

18.8

150

19.2

Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. Base Offense Level values reflect the BOL from the Drug Quantity Table (DQT) at USSG §2D1.1 prior to the
application of the mitigating role cap or any adjustments under other guideline provisions. Offenders with BOLs determined by guideline provisions without reference to the
DQT (e.g., §2D1.1(a)(1), §2D1.2(a)(4)) and offenders missing information required to determine the BOL prior to the application of the mitigating role cap were excluded from
the analysis. The analysis reflects the overall rate of career offender application under USSG §4B1.1 regardless of whether or not the application of career offender impacted the
Final Offense Level or Criminal History Category.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-32

Appendix
Figure 13A.
Rate of Safety Valve Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Percent
100.0
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0

13.7

14.2

2005

2006

13.3

14.2

2007

2008

12.3

11.3

11.6

10.9

10.0

2009

2010

2011

2012

2013

10.0
0.0
Fiscal Year

A-33

Appendix
Figure 13B.
Rate of Safety Valve Application for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Fiscal
Year

2005 678 13.7
2006 754 14.2
2007 696 13.3
2008 827 14.2
2009 673 12.3
2010 534 11.3
2011 489 11.6
2012 372 10.9
2013 291 10.0

A-34

Appendix

Figure 14A.
Average Sentence Imposed for Crack Cocaine and Powder Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Avg Sentence Imposed - Crack

Months
175

Avg Sentence Imposed - Powder

Crack-2

FSA

150

125

124

128
121
114

113

108
101

100
83

0
2005

2006

2007

2009

2010

2011

2012

2008

2013

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of powder cocaine or crack cocaine were included in this analysis. Offenders with sentences of probation or sentences exceeding 470 months (including life)
were included in the average sentence computations as 0 months and 470 months, respectively. The analysis includes time of confinement as described in §5C1.1.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-35

Appendix

Figure 14B.
Average Guideline Minimum and Average Sentence Imposed for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Avg Guideline Minimum - Crack

Months
175

Avg Sentence Imposed - Crack

Crack-2

150

151

FSA

153
146

141

142

135

125

124

130

128
121
114

113

123

125

108
101

100

0
2005

2006

2007

2008

2009

2010

2011

2012

2013

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of crack cocaine were included in this analysis. Offenders with sentences of probation or sentences exceeding 470 months (including life) were included in
the average sentence computations as 0 months and 470 months, respectively. The analysis includes time of confinement as described in §5C1.1. Guideline minimums account
for statutory mandatory minimum penalties. Guideline minimums exceeding 470 months (including life) were included in the average guideline minimum computation as 470
months.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.
A-36

Appendix
Figure 14C.
Average Guideline Minimum, Average Sentence Imposed, and Their Percent Difference
for Powder Cocaine and Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Powder Cocaine
Powder Cocaine
Crack Cocaine
Crack Cocaine
Average
Average
Average
Average
Crack Cocaine
Fiscal Guideline Minimum Sentence Imposed Powder Cocaine Guideline Minimum Sentence Imposed
Percent Difference
Percent Difference
Year
(in months)
(in months)
(in months)
(in months)
2005

100

-17.0

151

124

-17.9

2006

101

-17.8

146

121

-17.1

2007

102

-17.6

153

128

-16.3

2008

108

-18.5

135

114

-15.6

2009

105

-21.0

141

113

-19.9

2010

104

-22.1

142

108

-23.9

2011

-20.4

130

101

-22.3

2012

104

-23.1

123

-22.8

2013

102

-22.5

125

-23.2

Only offenders sentenced with complete guideline application information under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a
primary drug type of powder cocaine or crack cocaine were included in this analysis. Offenders with sentences of probation or sentences exceeding 470 months (including life)
were included in the average sentence computations as 0 months and 470 months, respectively. The analysis includes time of confinement as described in §5C1.1. Guideline
minimums account for statutory mandatory minimum penalties. Guideline minimums exceeding 470 months (including life) were included in the average guideline minimum
computation as 470 months.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-37

Appendix
Figure 15A.
Position of Sentences Relative to the Guideline Range for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Within Range
§5K1.1
Non-Gov't Spons. Below Range

Above Range
Other Gov't Spons.

Percent
100.0
90.0
Crack-2

FSA

80.0
70.0
60.0

53.9

56.8

56.4

56.2
49.2

50.0

30.5

27.3

28.2

25.4

25.8

25.4

26.8

42.5

25.7

26.3

22.3

22.4

6.1

7.1

26.9

20.0
10.0

44.5

40.8

40.0
30.0

47.3

20.6
12.6
2.6

0.0
2005

13.1
2.3

2006

12.6
2.4

2007

15.5
2.4

2008

3.4

2009

20.2
5.9

2010

4.0

2011

2012

2013

Appendix

Figure 15B.
Position of Sentences Relative to the Guideline Range for Crack Cocaine Trafficking Offenders
Fiscal Years 2005-2013

Non-Gov't Non-Gov't
Other
Other
Sponsored Sponsored
Within Within Above Above
Gov't
Gov't
Below
Below
Fiscal Range Range Range Range §5K1.1 §5K1.1 Sponsored Sponsored
Range
Range
%
%
Year
N
%
N
%
N
N
N
%
2005

2,664

53.9

0.4

1,509

30.5

131

2.6

621

12.6

2006

3,031

56.8

0.4

1,458

27.3

125

2.3

700

13.1

2007

2,950

56.4

0.5

1,473

28.2

126

2.4

657

12.6

2008

3,267

56.2

0.6

1,477

25.4

137

2.4

899

15.5

2009

2,692

49.2

1.0

1,414

25.8

186

3.4

1,127

20.6

2010

1,930

40.8

1.0

1,200

25.4

277

5.9

1,274

26.9

2011

2,000

47.3

1.7

1,135

26.8

170

4.0

854

20.2

2012

1,516

44.5

1.4

876

25.7

207

6.1

761

22.3

2013

1,239

42.5

1.5

767

26.3

208

7.1

653

22.4

A-39

Appendix

Figure 16A.
Self-Reported Crack Cocaine Users in the Past Year by Age
2005-2013

Aged 18-25

Aged 26 and Older

1,500,000
1,250,000
1,000,000
750,000
500,000
250,000
0
2005

2006

2007

2008

2009

2010

2011

2012

2013

Year
The Commission created this table using select data from Tables 7.8A, 7.8B, 7.11A, and 7.11B in the Department of Health and Human Services, Substance Abuse and Mental
Health Services Results from the 2013 National Survey on Drug Use and Health: National Findings.
SOURCE: Tables 7.8A, 7.8B, 7.11A, and 7.11B, SAMHSA, Center for Behavioral Health Statistics and Quality, National Survey on Drug Use and Health, 2002-2013.

A-40

Appendix
Figure 16B.
Self-Reported Drug Use in the Past Year by Age of User
2005-2013

Number in Thousands
Illicit Drugs1
Age 18-25

2005
N

2006
N

2007
N

2008
N

2009
N

2010
N

2011
N

2012
N

2013
N

11,117

11,267

10,889

11,090

12,186

11,990

12,067

12,551

12,448

Age 26 and older

18,883

19,565

20,163

19,801

21,099

22,174

21,485

24,460

24,856

328

293

249

217

172

180

107

140

1,000

1,111

1,138

862

807

686

490

762

526

34.2

34.4

33.3

33.7

36.3

35.2

36.3

35.8

10.2

10.4

10.6

10.3

10.9

11.4

10.8

12.2

12.3

1.0
0.5

0.9
0.6

0.8
0.6

0.7
0.4

0.5
0.4

0.3
0.2

0.4
0.4

0.3
0.3

Crack Cocaine
Age 18-25
Age 26 and older

Percentage
Illicit Drugs
Age 18-25
Age 26 and older
Crack Cocaine
Age 18-25
Age 26 and older

The Commission created this table using select data from Tables 7.8A, 7.8B, 7.11A, and 7.11B in the Department of Health and Human Services, Substance Abuse and Mental Health
Services Results from the 2013 National Survey on Drug Use and Health: National Findings.
1

Illicit Drugs include marijuana/hashish, cocaine (including crack), heroin, hallucinogens, inhalants, or prescription-type psychotherapeutics used nonmedically.

SOURCE: Tables 7.8A, 7.8B, 7.11A , and 7.11B, SAMHSA, Center for Behavioral Health Statistics and Quality, National Survey on Drug Use and Health, 2002-2013.

A-41

Appendix
Figure 17A.
Number of Simple Possession Crack Cocaine Offenders
Fiscal Years 2005-2013

# with 60 Month Drug Mandatory Minimum

Total # of Simple Possession Offenders

Number
60

37
30

7
2

3
1

2009

2010

0
2005

2006

2007

2008

2011

2012

2013

Fiscal Year
Only offenders sentenced with complete guideline application information under USSG §2D2.1 (Simple Possession) with a primary drug type of crack cocaine were included in
this analysis.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-42

Appendix
Figure 18.
Fines Imposed for Drug Trafficking Offenders
Fiscal Years 2005 –2013

FY05
N
%
Drug Trafficking
2,504 11.0
Offenders Receiving Fines
Average Fine Amount

$7,972

FY06

FY07

FY08

FY09

FY10

FY11

FY12

FY13

2,340

9.7

2,376

9.9

2,153

9.0

2,177

9.1

1,988

8.5

1,966

8.0

1,800

7.3

1,721

7.8

$12,138

$8,039

$4,448

$8,061

$8,750

$13,673

$8,028

$9,978

Only offenders with complete guideline application information sentenced under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal
Enterprise), 2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life) or 2D1.14 (Narco-Terrorism) were included in
this analysis. Offenders with missing fine information, a fine of $0, or with a fine imposed in an unspecified amount were excluded from the average fine computation.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-43

Appendix
Figure 19.
Application of Selected Specific Offense Characteristics in Drug Trafficking Offenses
Fiscal Years 2011 - 2014

FY11
18,536

Total # of Cases

FY12
23,833

FY13
21,960

FY14
20,977

Minimal Role Cap

N
17

%
0.1

N
29

%
0.1

N
49

%
0.2

N
68

%
0.3

Violence

0.2

0.4

157

0.7

141

0.7

Bribery

0.0

0.1

Premises

145

0.8

483

2.0

814

3.7

919

4.4

Role + Aggravating Factors
Fear, Impulse, Friendship
Involved Ind. < 18 years
Involved Ind. >= 65 years
Involved Pregnant Ind.
Involved Vulnerable Ind.
Importation
Obstruction
Criminal Livelihood

39
3
7
2
1
0
7
5
14

0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1

106
9
22
3
0
0
39
8
25

0.4
0.0
0.1
0.0
0.0
0.0
0.2
0.0
0.1

153
9
28
2
1
3
51
21
38

0.7
0.0
0.1
0.0
0.0
0.0
0.2
0.1
0.2

159
9
22
3
5
5
49
12
54

0.8
0.0
0.1
0.0
0.0
0.0
0.2
0.1
0.3

Role + Mitigating Factors

0.2

0.3

Only offenders sentenced with complete guideline application under USSG §§2D1.1 (Drug Trafficking), 2D1.2 (Protected Locations), 2D1.5 (Continuing Criminal Enterprise),
2D1.6 (Use of a Communication Facility), 2D1.8 (Rent/Manage Drug Establishment), 2D1.10 (Endangering Human Life), or 2D1.14 (Narco-Terrorism) with a Guidelines
Manual effective November 1, 2010, or later were included in this analysis. Offenders sentenced under provisions of the specified guidelines without reference to USSG
§2D1.1 were excluded from this analysis.
SOURCE: U.S. Sentencing Commission, FSA Datafiles.

A-44