United States of America v. Tony Allen Gregg

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY ALLEN GREGG,
Defendant - Appellant.
No. 10-4199
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
TONY ALLEN GREGG,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00180-JRS-1)
Argued: May 13, 2011 Decided: June 17, 2011
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Judge Motz
and Judge Davis joined. Judge Davis wrote a separate concurring
opinion.
ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for
Appellant/Cross-Appellee. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: Brian S. Foreman, BOWEN, CHAMPLIN, CARR,
FOREMAN AND ROCKECHARLIE, Richmond, Virginia, for
Appellant/Cross-Appellee. Neil H. MacBride, United States
Attorney, Alexandria, Virginia, Roderick C. Young, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.

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KEENAN, Circuit Judge:
Tony Allen Gregg was convicted by a jury of conspiracy to
distribute and possess with intent to distribute 50 grams or
more of cocaine base (crack cocaine), in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). The district court sentenced Gregg
under § 841(b)(1)(A) to the mandatory term of life imprisonment
required by the statute for a third conviction of a felony drug
offense. Fifteen days after sentencing Gregg, the district
court reduced Gregg’s sentence to 300 months’ imprisonment,
based on a mistake in the government’s information listing
Gregg’s prior convictions.
Gregg appeals his conviction, alleging that the district
court erred in its response to a question submitted by the jury
during its deliberations, and that the evidence was insufficient
to support his conviction. On cross-appeal, the government
asserts that the district court violated Federal Rule of
Criminal Procedure 35 when the court modified Gregg’s sentence.
We affirm Gregg’s conviction, but vacate his sentence and remand
the case to the district court with instructions that the
district court reinstate the statutory mandatory sentence of
life imprisonment.

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I.
The evidence at trial showed that on March 24, 2009,
Detective Greg Russell of the Richmond Police Department
detained Gregg outside the Deluxe Motel in relation to an
investigation of an armed robbery. Gregg informed Detective
Russell that Gregg “work[ed] for [Detective Erol] Fernandez,” a
member of the Department’s Narcotics Division.1
The government also presented evidence that on May 12,
2009, the Federal Bureau of Investigation (FBI) and the Richmond
Police Department were cooperating in an investigation of gang
activity at the Deluxe Motel. During this investigation, an FBI
informant approached Gregg, who was present at the motel, in
order to make a “controlled drug buy.” At the time, Gregg had
$900 in cash on his person but was not carrying any drugs.
Therefore, the intended transaction did not take place. A
Suspecting drug
activity, Detective Russell asked Gregg if he was carrying
“anything . . . that shouldn’t be there.” Gregg admitted that
he possessed drugs, and handed to Detective Russell a plastic
bag containing about 3.57 grams of crack cocaine.
1 Gregg was listed as an “informant” with the Richmond
Police Department but had never performed any work for the
Department. Gregg did complete six “controlled drug buys” for
the Federal Bureau of Investigation, which “deactivated” Gregg
after the March 24, 2009 incident. The Richmond Police
Department “deactivated” Gregg in May 2009.

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government witness testified that Gregg had borrowed the sum of
$900 in order to purchase crack cocaine.
The next day, Gregg was arrested on federal drug charges.
After waiving his Miranda rights, Gregg made a statement to FBI
Special Agents. According to a report by Special Agent Scott
Umphlett, Gregg admitted that he began selling crack cocaine in
March 2009, and that he had planned to sell the drug at the
Deluxe Motel on March 24, 2009. Gregg also stated that he
sometimes sold several “eight balls” in a day.2
The government also presented testimony from four witnesses
who either had purchased crack cocaine from Gregg, or had
knowledge of drug transactions involving Gregg. One of these
witnesses, April Brooks, estimated that Gregg sold $1,500 or
more of crack cocaine in an average day, and that Gregg
purchased a new supply of drugs, or “re-upped,” every two or
three days. Brooks recalled that she had observed Gregg with as
much as 14 to 27 grams of crack cocaine at one time. Another
witness, Amy Lester, testified that she lived with a man who had
Based on this
representation, Special Agent Umphlett calculated
“conservatively” that between March 24, 2009 and May 12, 2009,
Gregg sold about 171.5 grams of crack cocaine.
2 An “eight ball” is 3.5 grams or one-eighth an ounce of
cocaine.

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supplied Gregg with drugs on between five and ten occasions
during the period from March 2009 until May 12, 2009.
Phylicia Lewis, another witness presented by the
government, testified that on three occasions, Gregg purchased
crack cocaine for her to sell. Lewis also stated that “on a
good day,” Gregg could sell between one ounce and one and one-
half ounces of crack cocaine, and she estimated that Gregg had
four such “good days” each week. According to Lewis, on a “slow
day,” Gregg generally sold an amount of crack cocaine totaling
between one quarter of an ounce and one-half of an ounce. Lewis
further stated that Gregg sold drugs every day of the week.
FBI Special Agent Robert Scanlon testified that one ounce
of crack cocaine weighs 28.3 grams. He calculated that a dealer
who sells one ounce of crack each day would sell more than 50
grams in a two-day period. Special Agent Scanlon also testified
that the quantity of crack cocaine that Gregg possessed on March
24, 2009, was more consistent with distribution than with
personal use of the drug.
In his defense, Gregg presented testimony from his former
probation officer, Mindy Grizzard-Applewhite. She stated that
Gregg told her in March or April of 2009 that he “was hooked on
drugs again,” and that he needed her help. Grizzard-Applewhite
stated that although she was no longer supervising Gregg at that

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time, she tried to assist him in obtaining treatment but was
unsuccessful.
II.
At the close of the evidence, the district court instructed
the jury that the government was required to prove beyond a
reasonable doubt that Gregg “knowingly and voluntarily became a
part of [a] conspiracy.” During its deliberations, the jury
inquired whether this language meant that the government also
had to prove that Gregg “acted out the conspiracy in question.”
In answering this question, the district court reminded the
jurors that it expressly had charged that “[t]he government
[was] not required to prove that the parties or the members of
the conspiracy were successful in achieving any or all of the
objects of the agreement.” The district court then stated,
In this case, of course, the allegation is that the
defendant was involved in a conspiracy to distribute
and to possess with intent to distribute cocaine base.
And the evidence, if you accept it, is that he
actually sold cocaine base or possessed it with the
intent to distribute. So it is not required that the
conspiracy be successful or that the object of the
conspiracy be borne out. But, of course, in this case
you have to deal with the evidence that you have
before you. Again, you can reject the evidence. But
the evidence is there and you either credit it or you
don’t.
In response to these comments by the court, defense counsel
stated, “I think the [jury’s] question goes to did [Gregg]

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accomplish the 50 grams or more as alleged in the indictment.”
Defense counsel asked the court to instruct the jury that the
government must prove that Gregg “conspired with others to do
more than 50 grams as alleged in the indictment.” The district
court refused the requested instruction.
On appeal, Gregg raises two challenges to the district
court’s response to the jury’s question. Gregg contends that
the district court erred by refusing to give a lesser-included
offense instruction, and that the district court created
prejudice in its response by effectively lending credence to the
government’s evidence. We address these arguments in turn.
A.
At the outset, we observe that Gregg did not request a
lesser-included offense instruction in the district court,
either before the jury began deliberations or when the district
court responded to the jury’s question. Rule 30(d) of the
Federal Rules of Criminal Procedure provides that a party must
assign error to an omission from the jury charge “before the
jury retires to deliberate,” by stating distinctly the grounds
for the objection. When a claimed omission is not preserved in
this manner, such omission is reviewed for plain error. See
Fed. R. Crim. P. 52(b). To establish plain error, a defendant
must demonstrate that the asserted defect in the trial in fact

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constituted error, that the error was plain, and that the error
affected the defendant’s substantial rights. United States v.
Jackson, 124 F.3d 607, 614 (4th Cir. 1997) (citing United States
v. Olano, 507 U.S. 725, 732 (1993)).
In certain circumstances, the failure to give a lesser-
included offense instruction may result in trial error when a
jury suspects that a defendant is guilty of some offense, but
when one of the elements of the crime charged is in doubt. In
such a circumstance, absent a lesser-included offense
instruction, the jury may fail to give full effect to the
government’s proof burden and resolve any doubts in favor of
conviction. See Schmuck v. United States, 489 U.S. 705, 717 n.9
(1989). However, a criminal defendant is not entitled to a
lesser-included offense in every case. Such an instruction is
warranted only when the proof on the element in dispute, which
differentiates the greater and lesser offenses, is sufficient to
allow a jury to find the defendant innocent of the greater
offense and guilty of the lesser offense. See United States v.
Blankenship, 548 F.2d 1118, 1120 (4th Cir. 1976), cert. denied,
425 U.S. 978 (1976).
In the present case, Gregg maintains that that the district
court should have instructed the jury regarding a “lesser
quantity” of cocaine. He contends that the evidence at trial
demonstrated that he personally used crack cocaine, that he was

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not carrying large amounts of cash on March 24, 2009, or on May
12, 2009, and that he thought he was working as a government
informant. According to Gregg, these facts call into question
the government’s proof that he conspired to distribute and
possessed with intent to distribute 50 grams or more of crack
cocaine.
We disagree with Gregg’s characterization of the evidence.
The evidence amply demonstrated that the quantities of crack
cocaine that Gregg bought and sold far exceeded 50 grams. As
described above, Special Agent Umphlett estimated that Gregg
sold 171.5 grams of crack cocaine in the period between March
24, 2009 and May 12, 2009. Further, to the extent that Gregg
suggests the district court should have instructed the jury
regarding the offense of simple possession of crack cocaine,
rather than conspiracy to distribute and possess with the intent
to distribute 50 grams or more of crack cocaine, that argument
also is foreclosed by the overwhelming evidence in this case,
which included Gregg’s confession that he sometimes sold several
“eight balls” in a single day. A conclusion that Gregg merely
possessed the drugs at issue for personal use cannot fairly be
inferred from this record. Thus, because the evidence could not
reasonably be construed to allow the jury to find Gregg innocent
of the offense charged but guilty of a lesser-included offense,
we hold that the district court did not err by failing to give a

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lesser-included offense instruction. See Blankenship, 548 F.2d
at 1120.
B.
Gregg next argues that he was prejudiced by the district
court’s summary of the evidence in the above-quoted response to
the jury’s question. We apply a plain error standard of review
to this claim, because Gregg did not raise this objection before
the district court. See Fed. R. Crim. P. 52(b).
A district court generally may reference the evidence
presented at trial to assist the jury in understanding the
facts, but the court must exercise care not to usurp the jury’s
function as the ultimate trier of fact. See United States v.
Tello, 707 F.2d 85, 88-90 (4th Cir. 1983). In this case, the
district court stayed well within its proper role of supervising
the fact-finding process. The district court’s recitation of
the evidence in this case did not contain any expressed opinion
regarding the evidence or the witnesses’ credibility.
Additionally, the district court emphasized contemporaneously
with its comments on the evidence that the jury could accept or
reject the evidence described. See id. The court also
instructed the jury prior to trial that “[n]othing the Court may
say or do during the course of the trial is intended to indicate
nor should it be taken by you as indicating what your verdict

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should be.” Thus, we hold that the district court did not
commit plain error in its remarks on the government’s evidence.
III.
Gregg also argues that the evidence was insufficient to
support his conviction. To prove the charge of conspiracy to
distribute and possess with intent to distribute 50 grams or
more of crack cocaine, the government was required to establish
beyond a reasonable doubt that there was an agreement between
two or more persons to distribute and possess with intent to
distribute that amount of crack cocaine, that the defendant knew
of the conspiracy, and that the defendant knowingly and
voluntarily became a part of the conspiracy. United States v.
Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008).
We examine Gregg’s challenge to the sufficiency of the
evidence under a well-established standard of review. We
determine whether, viewing the evidence in the light most
favorable to the government, there is substantial evidence to
support the conviction. United States v. Kelly, 510 F.3d 433,
440 (4th Cir. 2007). We do not review the credibility of the
witnesses, but assume that the jury resolved any inconsistencies
in the evidence in the government’s favor. Id. After
considering all the evidence presented at trial, both direct and
circumstantial, and upon according the government all reasonable

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inferences from the facts shown, we will uphold a verdict if a
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. United States v. Harvey, 532
F.3d 326, 333 (4th Cir. 2008); United States v. Collins, 412
F.3d 515, 519 (4th Cir. 2005).
Gregg asserts that the evidence shows only that he engaged
in “buy-sell” transactions and does not support a conspiracy
conviction. He also contends that the evidence established that
he actually thought that he was working as an informant during
the months in question. Upon our review of the record, we
disagree with Gregg’s arguments.
The government presented substantial evidence to permit a
jury to convict Gregg of the crime charged. This Court
previously has stated that evidence of a “buy-sell” transaction,
combined with evidence of a substantial quantity of drugs, can
support a reasonable inference of the existence of a conspiracy.
See Yearwood, 518 F.3d at 226. Here, the testimony from law
enforcement officers, the testimony from Gregg’s acquaintances,
Gregg’s confession to FBI Special Agents, the undisputedly large
quantity of crack cocaine involved, and the nature of Gregg’s
drug transactions during the period in question, were sufficient
to permit a reasonable jury to find beyond a reasonable doubt
that Gregg conspired to distribute and possessed with intent to
distribute 50 grams or more of crack cocaine. Therefore, we

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hold that the evidence was sufficient to support Gregg’s
conviction.
IV.
In its cross-appeal, the government argues that the
district court violated Federal Rule of Criminal Procedure 35
when it reduced Gregg’s sentence. The government contends in
the alternative that the imposition of Gregg’s initial sentence
was not clear error, and that the district exceeded the
fourteen-day limit of Rule 35(a) when it reduced Gregg’s
sentence beyond that authorized time period.
Rule 35(a) permits a district court, within fourteen days
of sentencing, to “correct” a sentence that is based on an
“arithmetical, technical, or other clear error.” We consider
this provision in the context of the various procedural actions
that occurred in this case.
Before trial, pursuant to 21 U.S.C. § 851, the government
had filed informations notifying Gregg of two prior convictions
of felony drug offenses that would subject him to a mandatory
life sentence under 21 U.S.C. § 841(b)(1)(A) in the event of a
third conviction. Gregg did not challenge the sufficiency of
the government’s documents or the validity of the underlying
convictions. After the jury verdict in this case, the district

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court sentenced Gregg to life imprisonment in accordance with 21
U.S.C. § 841(b)(1)(A).
The following day, the district court informed counsel that
one of the informations filed by the government contained two
mistakes. The relevant information stated: “On July 26, 1996,
the defendant, TONY ALLEN GREGG, was found guilty of possession
with the intent to distribute cocaine, a felony, in the Circuit
Court fo[r] the City of Richmond, Virginia (Case # 96-691-F).”
The district court explained that the original conviction order
was entered on July 9, 1996, but was amended on July 26, 1996,
and that the state circuit court corrected the conviction order
a second time, in October 2000, to reflect that Gregg was
convicted of simple possession of cocaine, not possession with
the intent to distribute.3
3 The conviction of possession of cocaine also is a “felony
drug offense” for purposes of triggering enhanced penalties
under § 841(b).
Thus, the information filed by the
government under § 851 had stated incorrectly both the original
conviction date and the offense of conviction. Based on these
defects, the district court concluded that the government’s
information filed under § 851 was of questionable validity.
Accordingly, fifteen days after sentencing Gregg to a term of
life imprisonment, the district court reduced Gregg’s sentence
to a term of 300 months’ imprisonment.

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We agree with the government that the defects in the
government’s information did not create any “clear error” in
Gregg’s sentence permitting a correction under Rule 35(a). The
scope of circumstances constituting “clear error” that may be
corrected under Rule 35(a) is narrow, and generally requires
that some reversible error occurred in the original sentencing
by the district court. United States v. Fields, 552 F.3d 401,
404 (4th Cir. 2009); see Fed. R. Crim. P. 35(a) advisory
committee's note (“The authority to correct a sentence under
[Rule 35(a)] is intended to be very narrow and to extend only to
. . . errors which would almost certainly result in a remand of
the case . . . .”) (1991 Amendments). When a district court
“unequivocally states a sentence and then imposes it, and the
sentence is not the product of error, the district court has no
authority to alter that sentence.” United States v. Fraley, 988
F.2d 4, 7 (4th Cir. 1993).
The statutory purpose of an information filed under § 851
is to enable a defendant to identify, and to have the ability to
challenge, the government’s intended use of any prior conviction
to support a sentencing enhancement. See United States v.
Steen, 55 F.3d 1022, 1027 (5th Cir. 1995). Therefore, when the
government timely provides in an information constitutionally-
adequate notice of a defendant’s prior convictions, a district

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court may enhance a defendant’s sentence in accordance with the
contents of the information. Id.
The information at issue in this case satisfied the
protection afforded by § 851. The information, which was filed
in the district court before trial, identified the proper court
of conviction, the correct case number, and the July 26, 1996
date on which the state circuit court entered the first
corrected conviction order. Moreover, there is no evidence in
the record before us that Gregg had any difficulty identifying
the conviction contained in the information. Gregg has not
asserted that he was unable to ascertain what conviction was
referenced in the information, nor has he challenged the
validity of the conviction itself.
In view of this record, and of Gregg’s failure to show that
he was unable to determine the nature of the conviction
referenced in the government’s information, we conclude that the
mistakes in the information do not affect its content showing
that Gregg was convicted of a felony drug offense as a result of
the 1996 proceedings in the state circuit court. Thus, we hold
that Gregg’s original sentence was not affected by the mistakes
in the government’s information, and that there was no “clear
error” justifying a “corrected” sentence in this case.
Accordingly, we affirm Gregg’s conviction, but vacate his
sentence. We remand the case to the district court with

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instructions that the district court reinstate the mandatory
sentence of life imprisonment provided under 21 U.S.C. §
841(b)(1)(A).4
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4 Because we hold that the district court lacked any basis
under Rule 35(a) to correct Gregg’s sentence, we need not
address the government’s alternative argument that the district
court exceeded the time limitations of Rule 35(a) in changing
Gregg’s term of imprisonment.

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DAVIS, Circuit Judge, concurring.
I concur fully in Judge Keenan’s opinion for the panel and
offer these additional comments.
A.
The distinguished district judge was aghast that the now
forty-year-old Tony Gregg would spend the rest of his life in
federal prison for selling small amounts of crack cocaine over a
period of several weeks out of a hotel room in a run-down
section of Richmond. See infra n.6. The judge uncovered
(shortly after having imposed the mandatory life sentence) a
seeming defect in the government’s information filed pursuant to
21 U.S.C. § 851 and elected to reconvene the sentencing
proceeding and to impose, instead, a twenty-five year, within
Guidelines sentence. As the panel opinion makes clear, we are
constrained to undo the district court’s stab at achieving a
more just sentence.
The record shows that Gregg was a classic “utility player”
in America’s forty-year “war on drugs”: user, seller, “snitch.”
A tenth-grade drop-out (after repeating the second grade and the
seventh grade) with four half-siblings, he began to use illegal
narcotics in his early teens. For a time, he lived in an
abusive family environment; later, he moved between his mother,
grandmother, and father, sometimes in Virginia, sometimes in

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Ohio. As a young man, he attempted suicide more than once
(although he described the episodes as mere attempts to “get
high”). Throughout his 20s and early 30s, he was in and out of
jails and prisons on a regular basis, sometimes for assaultive
behavior. He was convicted of illegal gun possession in 2001 and
served a three-year federal prison sentence.
Later, once again released from incarceration and
(according to his probation officer, who testified below) having
adjusted reasonably well upon his return to free society, in
consideration for unspecified monetary compensation, he became a
highly-valued, highly-effective confidential informant for the
Federal Bureau of Investigation’s Violent Crime Task Force in
Richmond, on whose behalf he engaged in half a dozen undercover
drug transactions from mid-2008 through early 2009.
Sometime in early 2009, during his habitual association
with drug users and dealers while working on behalf of the FBI
to prosecute others involved in the drug trade, Gregg fell off
the wagon and began to use and sell illegal narcotics again. As
explained by Judge Keenan, he was unexpectedly accosted by
Richmond robbery detectives (investigating crimes of which he
was not suspected) while in possession of more than three grams
of crack cocaine in March 2009; they seized the cocaine but did
not arrest him. It was only weeks later, in May 2009, when Gregg
himself became a target of an undercover drug sting by the FBI,

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that he was finally arrested and prosecuted in this case. No
doubt believing that he might be allowed to “work off” the March
and May charges when he was interviewed by some of the very
agents by whom he had recently been employed to make undercover
drug purchases, Gregg promptly waived his Miranda rights and
freely discussed his recent drug dealing activity.
Despite Gregg’s countless arrests starting as a juvenile at
age 15 and his criminal history category of V, the pre-sentence
report in this case recites: “The defendant does not qualify for
a sentence enhancement under Career Offender, Criminal
Livelihood, Armed Career Criminal or Repeat and Dangerous Sex
Offender sections . . . of the Sentencing Guidelines.”
Why, then, a life sentence, the kind of sentence sometimes
imposed on convicted murderers? Apart from what his lawyer
described as official animus arising from Gregg having
“embarrassed” the FBI by dealing drugs while on the Bureau’s
payroll, it appears that the federal prosecutors were told by
Virginia state prosecutors that Gregg, who was for some period
of time involved in the Crips gang (as the FBI full well knew at
all relevant times), had “participated” in the murder of a high-
volume Richmond drug dealer who was Gregg’s supplier. J.A. 338-

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39.1
Understandably, perhaps, to many, Gregg is not a
sympathetic figure; they will think: he got what he deserved. To
many others, perhaps, matters are not so clear. Indeed, many
would say that Tony Gregg seems to be one more of the drug war’s
“expendables.” See Nora V. Demleitner, “Collateral Damage”: No
Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).
To be sure, so far as the record shows, no such evidence was
ever presented in this case, either at trial or at sentencing.
Furthermore, prior to trial, Gregg was offered a plea agreement
for a twenty-year sentence; when he rejected the government’s
offer, the government went all out for the life sentence found
to be unjust by the district court. Of the government’s four
non-law-enforcement witnesses at the one-day trial below, all
four were women who were themselves, like Gregg, users and
sellers of crack cocaine and heroin who worked with Gregg to
sell crack cocaine.
B.
This case presents familiar facts seen in courts across the
country: a defendant addicted to narcotics selling narcotics in
order to support his habit. Unfortunately for Gregg and
1 In addition, because Gregg’s first trial ended in a hung
jury, the government was required to try him a second time.

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countless other poorly-educated, drug-dependant offenders,
current drug prosecution and sentencing policy mandates that he
spend the rest of his life in prison. He is not alone: the
United States currently has the highest rate of incarceration in
the world. The Pew Ctr. on the States, One in 100: Behind Bars
in America 5 (2008), available at http://
www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FIN
AL_2-1-1_FORWEB.pdf. The United States also boasts the largest
prison population in the world, with 2.3 million adult Americans
behind bars.2
This staggering incarceration rate is traceable to the so-
called “War on Drugs,” which began in 1971 and picked up steam
in the mid-1980s, when Congress decided to get “tough” on drug-
Id.; see also Adam Liptak, More Than One in 100
Adults Are Now in Prison in U.S., N.Y. Times, Feb. 29, 2008, at
A14. Further, Gregg, like most other drug offenders, has a drug
dependence or abuse problem. Christopher J. Mumola & Jennifer C.
Karberg, Bureau of Justice Statistics Special Report, U.S. Dep’t
of Justice, Drug Use and Dependence, State and Federal
Prisoners, 2004, at 7 tbl.5 (2006), available at
http://bjs.ojp.usdoj.gov/content/pub/ascii/dudsfp04.txt.
2 The Pew Report figures do not take into account the number
of juveniles currently in detention centers, which means that
the total number of incarcerated Americans is higher still. Id.

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related crime by imposing lengthy mandatory minimum prison
sentences for offenders convicted of participating in the
illegal drug trade. See Barbara Vincent & Paul Hofer, Fed.
Judicial Ctr., The Consequences of Mandatory Minimum Prison
Terms: A Summary of Recent Findings 4 (1994), available at
http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/
$File/conmanmin.pdf; Paige Harrison & Allen Beck, U.S. Dept. of
Justice, Prisoners in 2002 1 (2003), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=921. To
effectuate the change in drug policy, Congress passed the Anti-
Drug Abuse Act of 1986, which allocated increased funding for
drug enforcement and required mandatory minimum sentences for
certain drug offenses. See U.S. Drug Enforcement Administration,
1985-1990, http://www.usdoj.gov/dea/pubs/history/1985-1990.html.
The Anti-Drug Abuse Act of 1988 added additional funds for
enforcement and similarly increased penalties for drug
violations. Id. Finally, the Federal Sentencing Guidelines
became effective on November 1, 1987, coinciding with the
passage of the federal Anti-Drug Abuse Acts of 1986 and 1988.
These laws created an array of mandatory minimum sentences for
drug offenses, stripping away the discretion that judges
traditionally employed in sentencing drug offenders and shifting
sentencing authority to prosecutors through their charging
decisions. As a result, the proportion of drug offenders

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sentenced to prison swelled from 79% to 93% between 1988 and
2004, often for extraordinarily lengthy periods. Bureau of
Justice Statistics, Compendium of Federal Justice Studies, 2004
(December 2006). In addition, the elimination of parole resulted
in offenders serving much longer sentences than in the past.
Marc Mauer & Ryan King, A 25 Year Quagmire: The War on Drugs and
Its Impact on American Society 7 (2007).
The mass incarceration of drug offenders persists into the
second decade of the twenty-first century despite the fact that
research consistently demonstrates that the current approach to
combating illegal drug use and drug trafficking is a failure.
For example, one of the primary reasons for the war on drugs was
to “create the proper incentives for the Department of Justice
to direct its most intense focus on major traffickers and
serious traffickers.” Id. at 14. In other words, the new drug
laws were intended to target offenders who import, control and
manage the distribution of substantial quantities. However, the
vast majority of drug offenders in the federal system are either
street-level dealers, couriers, or low-level assistants. United
States Sentencing Commission, Cocaine and Federal Sentencing
Policy, May 2007, at 19. As Judge Sweet recently stated, lengthy
incarcerations have “not been reserved for the worst offenders;
the overall average sentence length for a federal drug offense
ranges from 129 months for crack cocaine to 40.4 months for

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marijuana, with the majority of cocaine and crack offenders
subject to five- and ten-year mandatory minimums, despite the
fact that the overwhelming majority of them, approximately 90%
in 2005, committed no violence in connection with their drug
crimes.” Robert Sweet, Will Money Talk?: The Case For a
Comprehensive Cost-Benefit Analysis of the War on Drugs, 20
Stan. L. & Pol’y Rev. 229, 230-31 (2009).
As the Federal Judicial Center concluded nearly twenty
years ago, “the weight of the evidence clearly shows that
enactment of mandatory penalties has either no demonstrable . .
. effects or short-term effects that rapidly waste away.”
Barbara S. Vincent & Paul J. Hofer, Federal Judiciary Ctr., The
Consequences of Mandatory Minimum Prison Terms: A Summary of
Recent Findings 1 (1994) (quoting Professor Michael Tonry,
Mandatory Penalties, in 16 Crime & Justice: A Review of
Research, 243, 244 (1990)); see also Incarceration and Crime: A
Complex Relationship, The Sentencing Project (2005); Don Stemen,
Reconsidering Incarceration: New Directions for Reducing Crime,
The Vera Institute for Justice (2007).
This over-incarceration is astronomically expensive.
Taxpayers spend almost $70 billion a year on corrections and

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incarceration.3
3 These costs are particularly significant to the federal
system because of the increase in drug prosecutions brought in
federal courts, presumably because of the potential for harsh
mandatory minimums. Bureau of Justice Statistics, Federal
Criminal Case Processing, 2002 (January 2005); see also Heather
West, William Sabol & Sarah Greenman, Prisoners in 2009, Bureau
of Justice Statistics (2010) (In 1980, prisoners serving time
for drug offenses constituted about one-quarter of the federal
population while in 2009, the percentage had doubled.).
The Pew Ctr. on the States, One in 31: The Long
Reach of American Corrections 2009 11 (2009); see also 74 Fed.
Reg. 33,279 (July 10, 2009) (reporting that in 2008, the average
annual cost of incarceration for federal inmates was $25,895).
In contrast, drug treatment is more cost effective in
controlling drug-related crime than the continued expansion of
the prison system. For example, a RAND Corporation analysis
concluded that spending the same funds on drug treatment would
reduce drug-related crime 15 times as much as mandatory minimum
sentencing. Jonathan Caulkins, C. Peter Rydell, Williams
Schwabe, & James Chiesa, Mandatory Minimum Drug Sentences:
Throwing Away the Key or the Taxpayers’ Money? (RAND 1997).
While drug treatment has been demonstrated to be more effective
than incarceration without treatment, there has been a sharp
decline in persons actually receiving drug treatment while
incarcerated. See Christopher Mumola & Jennifer Karberg, Drug
Use and Dependence, State and Federal Prisoners, 2004, Bureau of
Justice Statistics (October 2006).

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As has been well documented, these harsh policies are
devastating to communities of color.4
4 Similarly, these policies have a disproportionate impact
on female offenders, see Paige Harrison & Allen Beck, Prisoners
in 2005, Bureau of Justice Statistics November 2006, and
juveniles, see Patricia Soung, Social and Biological
Constructions of Youth: Implications for Juvenile Justice and
Racial Equity, 6 NW J. L. & Soc. Pol’y 428 (2011) (noting that
the War on Drugs is sweeping youth in unprecedented numbers into
the criminal justice system); Ellen M. Weber, Bridging the
Barriers: Public Health Strategies for Expanding Drug Treatment
in Communities, 57 Rutgers L. Rev. 631, 644-48 (2005).
Despite the fact that
whites engage in drug offenses at a higher rate than blacks,
blacks are incarcerated for drug offenses at a rate that is 10
times greater than their white counterparts. Jamie Fellner,
Race, Drugs and Law Enforcement in the United States, 20 Stan.
L. & Pol’y Rev. 257, 266-69 (2009) (citing U.S. Dep’t of Health
& Human Services, Substance Abuse & Mental Health Services
Admin., Results from the 2006 National Survey on Drug Use and
Health: National Findings, at tbls. 1.34A, B (2006)). “On any
given day, nearly one-third of black men in their twenties are
under the supervision of the criminal justice system-either
behind bars, on probation, or on parole.” Dorothy E. Roberts,
The Social and Moral Cost of Mass Incarceration in African
American Communities, 56 Stan. L.Rev. 1271, 1272 (2004); see
also Carol A. Brook, Racial Disparity Under the Federal
Sentencing Guidelines, 35 Litig., Fall 2008, at 1, 15. “African-

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Americans alone make up almost 40 percent of the federal prison
population, although they constitute only 13 percent of our
country’s population.”).
This ballooning of the percentage of blacks incarcerated
over the past 25 years directly corresponds with the disparate
treatment of crack and powder cocaine. Marc Mauer, Racial Impact
Statements as a Means of Reducing Unwarranted Sentencing
Disparities, 5 Ohio St. J. Crim. L. 19, 22-29 (2007)
(attributing disparities in rates of black imprisonment in part
to federal crack cocaine penalties). Originally the United
States Sentencing Commission adopted a 100:1 statutory ratio in
creating the guidelines. See United States Sentencing
Commission, Special Report to the Congress: Cocaine and Federal
Sentencing Policy at v (Feb. 1995). For example, the Act imposed
a five-year minimum sentence for persons convicted of
trafficking 5 grams of cocaine base or 500 grams of cocaine
powder and a ten-year minimum sentence for trafficking 50 grams
of cocaine base or 5,000 grams of cocaine powder.5
5 In the Fair Sentencing Act of 2010, Congress lowered the
100-to-1 sentencing disparity between crack cocaine and powder
cocaine to a ratio of 18 to 1. Fair Sentencing Act of 2010, Pub.
L. No. 111-220, 124 Stat. 2372 (2010).
However, as
observed by the Supreme Court, unlike the sentencing guidelines
as a whole, the Commission “did not use [an] empirical approach

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in developing the Guidelines sentences for drug-trafficking
offenses.” Kimbrough v. United States, 552 U.S. 85, 96 (2007).
As Judge Myron Bright stated, “[t]his lack of an empirical
approach to the creation of guidelines for crack cocaine
counsels against according controlling, or even significant,
weight to the guidelines.” United States v. Brewer, 624 F.3d
900, 912 (8th Cir. 2010) (Judge Bright, concurring in part and
dissenting in part) (citing United States v. Dorvee, 616 F.3d
174, 187-88 (2d Cir. 2010) (holding that deference to the
Guidelines depends on the thoroughness of the Commission’s
analysis and the validity of its reasoning)). See also Global
Commission on Drug Policy, War on Drugs at 5 (June 2011) (“There
is no excuse . . . for ignoring the evidence and experience
accumulated since [the inception of the war on drugs]. Drug
policies and strategies at all levels too often continue to be
driven by ideological perspectives, or political convenience,
and pay too little attention to the complexities of the drug
market, drug use and drug addiction.”).
To be sure, one of the fundamental flaws with mandatory
minimum sentences is that the practice impedes district court
judges from considering mitigating factors in sentencing in
order to impose fair and just sentences. While it was thought
that mandatory minimum sentences would reduce sentencing
disparities, the opposite has come to fruition. Inconsistent

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application of mandatory minimums has only exacerbated
disparities because they transfer sentencing power from district
court judges to prosecutors, “who may pre-set punishment through
creative investigative and charging practices, producing
troubling punishment differentials among offenders with similar
culpability.” Erik Luna & Paul Cassell, Mandatory Minimalism, 32
Cardozo L. Rev. 1, 13 (2010).
Here, as in many other cases, the district court expressly
noted its discontent with the statutory mandatory minimum
sentence. This disapproval among distinguished jurists is not
unusual. See, e.g., Anthony M. Kennedy, Speech at the American
Bar Association Annual Meeting (Aug. 9, 2003) (available at
http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.asp
x?Filename=sp_ 08-09-03.html) (“By contrast to the guidelines, I
can accept neither the necessity nor the wisdom of federal
mandatory minimum sentences. In too many cases, mandatory
minimum sentences are unwise and unjust.”); Debate, Mandatory
Minimums in Drug Sentencing: A Valuable Weapon in the War on
Drugs or a Handcuff on Judicial Discretion?, 36 Am. Crim. L.
Rev. 1279, 1284-85 (1999) (debate between Rep. Asa Hutchinson
and U.S. District Court Judge Stanley Sporkin). See also John S.
Martin, Jr., Why Mandatory Minimums Make No Sense, 18 Notre Dame
J.L. Ethics & Pub. Pol’y 311 (2004); Jack B. Weinstein, Every
Day is a Good Day for a Judge to Lay Down his Professional Life

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for Justice, 32 Fordham Urb. L. J. 131 (2004); Gerard E. Lynch,
Sentencing Eddie, 91 J. Crim. L. & Criminology 547 (2001). Even
the U.S. drug czar, a position created by the Anti-Drug Abuse
Act of 1988, admits the war on drugs is failing, stating that
after 40 years and $1 trillion, “it has not been successful . .
. the concern about drugs and drug problems is, if anything,
magnified, intensified.” Martha Mendoza, After 40 Years and $1
Trillion, Drug Use Is Rampant and Violence Pervasive, Associated
Press, May 13, 2010.
C.
I share the district judge’s dismay over the legally-
mandated sentence he must impose in this case.6
6 The district judge, a veteran of twenty-five years’
service on the federal trial bench (and before that a highly-
respected federal prosecutor) addressed the Appellant as follows
at the original sentencing hearing in response to Gregg’s
protestation that a sentence of life without parole was unjust:
While the
Well, for the record, Mr. Gregg, I will tell you
that I agree with you wholeheartedly. I think a life
sentence for what you have done in this case is
ridiculous. It is a travesty. I don't have any
discretion about it. The government, obviously you
irritated them in some way and they reached back to
these 1996 possession and possession with intent[,] to
do this, which under the law they have the right to
do. I don't agree with it, either. And I want the
world and the record to be clear on that. This is just
silly. But as I say, I don't have any choice.
J.A. 311.
(Continued)

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controlling legal principles require us to order the
reimposition of a sentence of life without parole in this case,
the time has long passed when policymakers should come to
As discussed in text at pp. 30-31, the district court’s
sentiments are shared by a wide swath of trial and appellate
federal judges. To take just one reported example, Sixth Circuit
Judge Gilbert Merritt, sitting by designation in the First
Circuit, expressed similar, long-standing frustrations in a case
in which the government filed a § 851 information to require the
district court to impose a twenty-year minimum sentence. Judge
Merritt spoke for many federal judges when he wrote:
I agree with the District Court that the
prosecution's decision to seek a mandatory sentence of
20 years under 21 U.S.C. § 851 passes all
understanding. The District Court said: “I recognize
you [AUSA] do this at the behest of your superiors.
But I can’t sit here today and impose this sentence
without saying it’s wrong, and you can take that
message to whoever you think might listen.” The
Judicial Conference of the United States for almost 20
years, and the Sentencing Commission for almost 10
years, have pleaded with the judiciary committees of
Congress to do something about the serious injustices
that these long, mandatory minimum sentences impose-to
no avail. This is a 20-year sentence for a nonviolent
crime by a defendant with a serious mental illness.
His incarceration will cost the American taxpayers in
today’s dollars somewhere between $600,000 and
$1,000,000. With some carefully monitored
rehabilitation treatment, it is possible that he could
be released in just a few years. Like the District
Judge, I think that the prosecution’s purely
discretionary decision to ratchet up this sentence to
20 years is misguided and ought to be reconsidered
when the judgment becomes final.
United States v. Gonzalez-Ramirez, 561 F.3d 22, 31 (1st
Cir.), cert. denied, 130 S.Ct. 524 (2009) (Merritt, J.,
concurring) (bracket in original).

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acknowledge the nation’s failed drug policy and to act on that
acknowledgement.
As a nation, we are smart enough to do better.

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