[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