[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1789 Reported in Senate (RS)]
Calendar No. 316
111th CONGRESS
2d Session
S. 1789
To restore fairness to Federal cocaine sentencing.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 15, 2009
Mr. Durbin (for himself, Mr. Leahy, Mr. Specter, Mr. Feingold, Mr.
Cardin, Mr. Whitehouse, Mr. Kaufman, Mr. Franken, Mr. Dodd, Mr. Kerry,
Mr. Levin, Mr. Brown of Ohio, Mr. Sanders, Mr. Burris, Mr. Harkin, Mr.
Webb, Mr. Grassley, and Mrs. Feinstein) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
March 15, 2010
Reported by Mr. Leahy, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To restore fairness to Federal cocaine sentencing.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Fair Sentencing Act of
2009''.</DELETED>
<DELETED>SEC. 2. COCAINE SENTENCING DISPARITY ELIMINATION.</DELETED>
<DELETED> (a) CSA.--Section 401(b)(1) of the Controlled Substances
Act (21 U.S.C. 841(b)(1)) is amended--</DELETED>
<DELETED> (1) in subparagraph (A)(iii), by striking ``50
grams'' and inserting ``5 kilograms''; and</DELETED>
<DELETED> (2) in subparagraph (B)(iii), by striking ``5
grams'' and inserting ``500 grams''.</DELETED>
<DELETED> (b) Import and Export Act.--Section 1010(b) of the
Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is
amended--</DELETED>
<DELETED> (1) in paragraph (1)(C), by striking ``50 grams''
and inserting ``5 kilograms''; and</DELETED>
<DELETED> (2) in paragraph (2)(C), by striking ``5 grams''
and inserting ``500 grams''.</DELETED>
<DELETED>SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE FOR SIMPLE
POSSESSION.</DELETED>
<DELETED> Section 404(a) of the Controlled Substances Act (21 U.S.C.
844(a)) is amended by striking the sentence beginning ``Notwithstanding
the preceding sentence,''.</DELETED>
<DELETED>SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG
TRAFFICKERS.</DELETED>
<DELETED> (a) Increased Penalties for Manufacture, Distribution,
Dispensation, or Possession With Intent To Manufacture, Distribute, or
Dispense.--Section 401(b)(1) of the Controlled Substances Act (21
U.S.C. 841(b)) is amended--</DELETED>
<DELETED> (1) in subparagraph (A), by striking
``$4,000,000'', ``$10,000,000'', ``$8,000,000'', and
``$20,000,000'' and inserting ``$10,000,000'', ``$50,000,000'',
``$20,000,000'', and ``$75,000,000'', respectively;
and</DELETED>
<DELETED> (2) in subparagraph (B), by striking
``$2,000,000'', ``$5,000,000'', ``$4,000,000'', and
``$10,000,000'' and inserting ``$5,000,000'', ``$25,000,000'',
``$8,000,000'', and ``$50,000,000'', respectively.</DELETED>
<DELETED> (b) Increased Penalties for Importation and Exportation.--
Section 1010(b) of the Controlled Substances Import and Export Act (21
U.S.C. 960(b)) is amended--</DELETED>
<DELETED> (1) in paragraph (1), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively, and</DELETED>
<DELETED> (2) in paragraph (2), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', and
``$50,000,000'', respectively.</DELETED>
<DELETED>SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING THE COURSE OF
A DRUG TRAFFICKING OFFENSE.</DELETED>
<DELETED> Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall
review and, if appropriate, amend the sentencing guidelines to ensure
that the penalties for an offense involving trafficking of a controlled
substance provide tiered enhancements for the involvement of a
dangerous weapon or violence, including, if appropriate--</DELETED>
<DELETED> (1) an enhancement for the use or brandishing of a
firearm or other dangerous weapon;</DELETED>
<DELETED> (2) an enhancement for the use, or threatened use,
of violence; and</DELETED>
<DELETED> (3) any other enhancement in this respect that the
Commission considers necessary.</DELETED>
<DELETED>SEC. 6. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN
AGGRAVATING FACTORS.</DELETED>
<DELETED> Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall
review and, if appropriate, amend the sentencing guidelines to ensure
that the penalties for an offense involving trafficking of a controlled
substance adequately take into account the culpability of the defendant
and the role of the defendant in the offense, including consideration
of whether enhancements should be added, or existing enhancements
should be increased, for the following aggravating factors associated
with the offense:</DELETED>
<DELETED> (1) The defendant committed the offense as part of
a pattern of criminal conduct engaged in as a
livelihood.</DELETED>
<DELETED> (2) The defendant is an organizer, manager,
supervisor, or leader of drug trafficking activities.</DELETED>
<DELETED> (3) The defendant maintained an establishment for
the manufacture or distribution of the controlled
substance.</DELETED>
<DELETED> (4) The defendant distributed a controlled
substance to an individual under the age of 21 years or over
the age of 64 years, or to a pregnant individual.</DELETED>
<DELETED> (5) The defendant involved an individual under the
age of 21 years or over the age of 64 years, or a pregnant
individual, in the offense.</DELETED>
<DELETED> (6) The defendant distributed a controlled
substance to an individual who was unusually vulnerable due to
physical or mental condition, or who was particularly
susceptible to criminal conduct.</DELETED>
<DELETED> (7) The defendant involved an individual who was
unusually vulnerable due to physical or mental condition, or
who was particularly susceptible to criminal conduct.</DELETED>
<DELETED> (8) The defendant used threats, coercion, or
intimidation to involve an individual in the offense.</DELETED>
<DELETED> (9) The defendant manufactured or distributed the
controlled substance in a location described in section 416(a)
or section 419(a) of the Controlled Substances Act (21 U.S.C.
856(a) or 860(a)).</DELETED>
<DELETED> (10) The defendant bribed, or attempted to bribe,
a Federal, State, or local law enforcement officer in
connection with the offense.</DELETED>
<DELETED> (11) The defendant was involved in importation
into the United States of a controlled substance.</DELETED>
<DELETED> (12) Bodily injury or death occurred in connection
with the offense.</DELETED>
<DELETED> (13) The defendant used another person to
purchase, sell, transport, or store controlled substances and
used impulse, fear, friendship, affection, or some combination
thereof to involve such person in the offense when such person
had a minimum knowledge of the illegal enterprise and was to
receive little or no compensation from the illegal
transaction.</DELETED>
<DELETED> (14) The defendant engaged in witness
intimidation, tampered, or destroyed evidence, or otherwise
obstructed justice in conjunction with the investigation or
prosecution of the offense.</DELETED>
<DELETED> (15) Any other factor the Commission considers
necessary.</DELETED>
<DELETED>SEC. 7. INCREASED EMPHASIS ON CERTAIN MITIGATING
FACTORS.</DELETED>
<DELETED> Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall
review and, if appropriate, amend the sentencing guidelines to ensure
that the penalties for an offense involving trafficking of a controlled
substance adequately take into account mitigating factors associated
with the offense, including--</DELETED>
<DELETED> (1) whether the defendant had minimum knowledge of
the illegal enterprise;</DELETED>
<DELETED> (2) whether the defendant received little or no
compensation in connection with the offense;</DELETED>
<DELETED> (3) whether the defendant acted on impulse, fear,
friendship, or affection when the defendant was otherwise
unlikely to commit such an offense; and</DELETED>
<DELETED> (4) whether any maximum base offense level should
be established for a defendant who qualifies for a mitigating
role adjustment.</DELETED>
<DELETED>SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING
COMMISSION.</DELETED>
<DELETED> (a) In General.--The United States Sentencing Commission,
in its discretion, may--</DELETED>
<DELETED> (1) promulgate amendments pursuant to the
directives in this Act in accordance with the procedure set
forth in section 21(a) of the Sentencing Act of 1987 (Public
Law 100-182), as though the authority under that Act had not
expired; and</DELETED>
<DELETED> (2) pursuant to the emergency authority provided
in paragraph (1), make such conforming amendments to the
Sentencing Guidelines as the Commission determines necessary to
achieve consistency with other guideline provisions and
applicable law.</DELETED>
<DELETED> (b) Promulgation.--The Commission shall promulgate any
amendments under subsection (a) promptly so that the amendments take
effect on the same date as the amendments made by this Act.</DELETED>
<DELETED>SEC. 9. REPORT ON EFFECTIVENESS OF DRUG COURTS.</DELETED>
<DELETED> (a) In General.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United States
shall prepare a report analyzing the effectiveness of drug court
programs receiving funds from the Drug Court Discretionary Grant
Program of the United States Department of Justice's Office of Justice
Programs.</DELETED>
<DELETED> (b) Focus.--The report required by subsection (a) shall--
</DELETED>
<DELETED> (1) assess the Department of Justice's efforts to
collect data on the performance of federally funded drug
courts;</DELETED>
<DELETED> (2) address the effect of drug courts on
recidivism and substance abuse rates;</DELETED>
<DELETED> (3) address any cost benefits resulting from the
use of drug courts as alternatives to incarceration;</DELETED>
<DELETED> (4) assess the Department of Justice's response to
previous recommendations made by the Comptroller General
regarding drug court programs; and</DELETED>
<DELETED> (5) make recommendations concerning the
performance, impact, and cost-effectiveness of federally funded
drug court programs.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Sentencing Act of 2010''.
SEC. 2. COCAINE SENTENCING DISPARITY REDUCTION.
(a) CSA.--Section 401(b)(1) of the Controlled Substances Act (21
U.S.C. 841(b)(1)) is amended--
(1) in subparagraph (A)(iii), by striking ``50 grams'' and
inserting ``280 grams''; and
(2) in subparagraph (B)(iii), by striking ``5 grams'' and
inserting ``28 grams''.
(b) Import and Export Act.--Section 1010(b) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(b)) is amended--
(1) in paragraph (1)(C), by striking ``50 grams'' and
inserting ``280 grams''; and
(2) in paragraph (2)(C), by striking ``5 grams'' and
inserting ``28 grams''.
SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE FOR SIMPLE
POSSESSION.
Section 404(a) of the Controlled Substances Act (21 U.S.C. 844(a))
is amended by striking the sentence beginning ``Notwithstanding the
preceding sentence,''.
SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAFFICKERS.
(a) Increased Penalties for Manufacture, Distribution,
Dispensation, or Possession With Intent To Manufacture, Distribute, or
Dispense.--Section 401(b)(1) of the Controlled Substances Act (21
U.S.C. 841(b)) is amended--
(1) in subparagraph (A), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively; and
(2) in subparagraph (B), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', and
``$50,000,000'', respectively.
(b) Increased Penalties for Importation and Exportation.--Section
1010(b) of the Controlled Substances Import and Export Act (21 U.S.C.
960(b)) is amended--
(1) in paragraph (1), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively; and
(2) in paragraph (2), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', and
``$50,000,000'', respectively.
SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING THE COURSE OF A DRUG
TRAFFICKING OFFENSE.
Pursuant to its authority under section 994 of title 28, United
States Code, the United States Sentencing Commission shall review and
amend the Federal sentencing guidelines to ensure that the guidelines
provide an additional penalty increase of at least 2 offense levels if
the defendant used violence, made a credible threat to use violence, or
directed the use of violence during a drug trafficking offense.
SEC. 6. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN AGGRAVATING
FACTORS.
Pursuant to its authority under section 994 of title 28, United
States Code, the United States Sentencing Commission shall review and
amend the Federal sentencing guidelines to ensure an additional
increase of at least 2 offense levels if--
(1) the defendant bribed, or attempted to bribe, a Federal,
State, or local law enforcement official in connection with a
drug trafficking offense;
(2) the defendant maintained an establishment for the
manufacture or distribution of a controlled substance, as
generally described in section 416 of the Controlled Substances
Act (21 U.S.C. 856); or
(3)(A) the defendant is an organizer, leader, manager, or
supervisor of drug trafficking activity subject to an
aggravating role enhancement under the guidelines; and
(B) the offense involved 1 or more of the following super-
aggravating factors:
(i) The defendant--
(I) used another person to purchase, sell,
transport, or store controlled substances;
(II) used impulse, fear, friendship,
affection, or some combination thereof to
involve such person in the offense; and
(III) such person had a minimum knowledge
of the illegal enterprise and was to receive
little or no compensation from the illegal
transaction.
(ii) The defendant--
(I) knowingly distributed a controlled
substance to a person under the age of 18
years, a person over the age of 64 years, or a
pregnant individual;
(II) knowingly involved a person under the
age of 18 years, a person over the age of 64
years, or a pregnant individual in drug
trafficking;
(III) knowingly distributed a controlled
substance to an individual who was unusually
vulnerable due to physical or mental condition,
or who was particularly susceptible to criminal
conduct; or
(IV) knowingly involved an individual who
was unusually vulnerable due to physical or
mental condition, or who was particularly
susceptible to criminal conduct, in the
offense.
(iii) The defendant was involved in the importation
into the United States of a controlled substance.
(iv) The defendant engaged in witness intimidation,
tampered with or destroyed evidence, or otherwise
obstructed justice in connection with the investigation
or prosecution of the offense.
(v) The defendant committed the drug trafficking
offense as part of a pattern of criminal conduct
engaged in as a livelihood.
SEC. 7. INCREASED EMPHASIS ON DEFENDANT'S ROLE AND CERTAIN MITIGATING
FACTORS.
Pursuant to its authority under section 994 of title 28, United
States Code, the United States Sentencing Commission shall review and
amend the Federal sentencing guidelines and policy statements to ensure
that--
(1) if the defendant is subject to a minimal role
adjustment under the guidelines, the base offense level for the
defendant based solely on drug quantity shall not exceed level
32; and
(2) there is an additional reduction of 2 offense levels if
the defendant--
(A) otherwise qualifies for a minimal role
adjustment under the guidelines and had a minimum
knowledge of the illegal enterprise;
(B) was to receive no monetary compensation from
the illegal transaction; and
(C) was motivated by an intimate or familial
relationship or by threats or fear when the defendant
was otherwise unlikely to commit such an offense.
SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING COMMISSION.
The United States Sentencing Commission shall--
(1) promulgate the guidelines, policy statements, or
amendments provided for in this Act as soon as practicable, and
in any event not later than 90 days after the date of enactment
of this Act, in accordance with the procedure set forth in
section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994
note), as though the authority under that Act had not expired;
and
(2) pursuant to the emergency authority provided under
paragraph (1), make such conforming amendments to the Federal
sentencing guidelines as the Commission determines necessary to
achieve consistency with other guideline provisions and
applicable law.
SEC. 9. REPORT ON EFFECTIVENESS OF DRUG COURTS.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Comptroller General of the United States shall submit
to Congress a report analyzing the effectiveness of drug court programs
receiving funds under the drug court grant program under part EE of
title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3797-u et seq.).
(b) Contents.--The report submitted under subsection (a) shall--
(1) assess the efforts of the Department of Justice to
collect data on the performance of federally funded drug
courts;
(2) address the effect of drug courts on recidivism and
substance abuse rates;
(3) address any cost benefits resulting from the use of
drug courts as alternatives to incarceration;
(4) assess the response of the Department of Justice to
previous recommendations made by the Comptroller General
regarding drug court programs; and
(5) make recommendations concerning the performance,
impact, and cost-effectiveness of federally funded drug court
programs.
SEC. 10. UNITED STATES SENTENCING COMMISSION REPORT ON IMPACT OF
CHANGES TO FEDERAL COCAINE SENTENCING LAW.
Not later than 5 years after the date of enactment of this Act, the
United States Sentencing Commission, pursuant to the authority under
sections 994 and 995 of title 28, United States Code, and the
responsibility of the United States Sentencing Commission to advise
Congress on sentencing policy under section 995(a)(20) of title 28,
United States Code, shall 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.
Calendar No. 316
111th CONGRESS
2d Session
S. 1789
_______________________________________________________________________
A BILL
To restore fairness to Federal cocaine sentencing.
_______________________________________________________________________
March 15, 2010
Reported with an amendment