Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING CRACK-TO-POWDER RATIO FOR SENTENCING MARK W. BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................850 A. Factual And Procedural Background......................................850 1. Recognition of the “new” ratio issue...................................850 2. The presentencing hearing...........................................851 B. Framing The Issue.....................................................852 1. The 100:1 ratio.....................................................852 2. My interim position.................................................852 3. My adoption of a 1:1 ratio............................................853 4. The Fair Sentencing Act of 2010 and the “new” guidelines ...............853 C. Arguments Of The Parties...............................................854 1. Arguments of the prosecution........................................854 2. Arguments of amicus curiae..........................................855 3. Arguments of the defendant..........................................856 II. LEGAL ANALYSIS .......................................................856 A. The 1986 Act: A Ratio In Search Of A Rationale...........................857 1. Haste makes waste .................................................857 2. Resulting flaws.....................................................859 a. Overblown fears................................................859 b. Inconsistency with the goals of the 1986 Act........................861 c. Pernicious racial impact..........................................862 3. My reasons for rejecting the 100:1 ratio ...............................865 B. The 2010 Amendments: A New Ratio But No New Rationale................866 1. Compromise not substantiation.......................................866 a. The Department of Justice’s position..............................867 b. The Commission’s position.......................................868 c. The congressional investigations and positions......................870 d. The compromise in the House and Senate..........................874 e. Summary......................................................879 2. Guidelines amendments based on directives, not institutional expertise.....879 3. Continuation of the old flaws..........................................880 a. Overblown fears and unpersuasive rationales.......................880 b. Inconsistency with the goals of the 1986 Act and the 2010 FSA.....881 c. Continued pernicious racial impact................................882 d. Use of the ratio as a “proxy” for perceived harms...................882 4. Additional concerns with the new sentencing scheme....................883 C. Consideration Of The “New” Ratio.......................................885 1. My analysis of the 18:1 ratio ........................................885 a. Statutory mínimums versus sentencing guidelines..................•. 885 b. Determining factors ............................................885 c. The “unwarranted sentencing disparities” argument.................886 2. The appropriate sentencing methodology..............................890 III. CONCLUSION......................................:.....................891 This bill creates, for the very first time, a special penalty applicable to crack. Because crack is so potent, drug dealers need to carry much smaller quantities of crack than of cocaine powder. By treating 1,000 grams of freebase cocaine no more seriously than 1,000 grams of cocaine powder, which is far less powerful than freebase, current law provides a loophole that actually encourages drug dealers to sell the more deadly and addictive substance, and lets them sell thousands of doses without facing the maximum penalty possible. —Sen. Alfonse Marcello D’Amato (R-N.Y.), 132 Cong. Rec. S8091-06, 1986 WL 776420 (daily ed. June 20, 1986) The fact is, the chemical difference between crack and [powder] cocaine is the difference[ ] between water and ice. It is the same thing, and you cannot explain to a people that for doing the same thing that they should get 100-to-1 more severe treatment. It doesn’t make sense. —Rep. Keith Ellison (D-Minn.), 156 Cong. Rec. H6196-01, H6202, 2010 WL 2942883 (daily ed. July 28, 2010) Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges. Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I. should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010. When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence— before it as the basis to adopt that new ratio. I likewise assumed that the Sentencing Commission would have brought its institutional- expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio. Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio. This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines. I. INTRODUCTION A. Factual And Procedural Background 1. Recognition of the “new” ratio issue On December 9, 2010, defendant Billy Williams, Sr., entered a guilty plea, without a plea agreement, to four crack cocaine offenses with which he had been charged in an Indictment handed down August 19, 2010. On February 2, 2011, recognizing that Williams’s sentencing would be the first in which I would have occasion to consider whether or not to adopt the 18:1 crack-to-powder cocaine ratio adopted in the amended Sentencing Guidelines, and that the analysis of the Federal Defender on this question would be of assistance to me, I requested that the Federal Defender file a brief as amicus curiae addressing the crack-to-powder ratio issue. See Order (docket no. 235). The Federal Defender filed the requested Amicus Curiae Brief Of Iowa Federal Defender’s Office, Addressing Whether The Court Should Employ A l.T CraekTo-Powder Ratio In This And Future Crack Cocaine Cases (Amicus Curiae Brief) (docket no. 262) on February 25, 2011, urging me to maintain my policy of using a 1:1 ratio. On February 25, 2011, the prosecution also filed a Brief Addressing Whether The Court Should Vary From The Newest Crack Cocaine Guidelines Of 18:1 To A 1:1 Ratio Under 18 U.S.C. § 3553(a) (docket no. 263), urging me to impose, in the typical crack cocaine case, such as this one, a sentence within the applicable federal sentencing guideline range determined by the 18:1 ratio. On March 8, 2011, Williams’s appointed counsel filed a Motion For Downward Variance (docket no. 274), asserting that I should vary downward and sentence Williams based on a 1:1 crack-to-powder ratio. Williams adopted the Federal Defender’s arguments and offered some additional arguments in support of the 1:1 ratio primarily in response to the prosecution’s brief on this issue. Although the prosecution filed a Response To Defendant’s Motion For Downward Variance (docket no. 280) on March 11, 2011, the prosecution did not expressly address the crack-to-powder ratio issue in that Response. 2. The presentencing hearing At a presenténcing hearing on March 15, 2011, addressing whether or not I should adopt the new 18:1 ratio for sentencing purposes and other issues in Williams’s sentencing, the prosecution was represented by Assistant United States Attorneys Shawn Wehde, the prosecutor of record, in Sioux City, Iowa, and Dan Tvedt, who authored the prosecution’s brief and took the lead in arguments on the ratio issue, by telephone from Cedar Rapids, Iowa. Defendant Billy Williams, Sr., was represented by appointed counsel Jay' Denne of Munger, Reinschmidt & Denne in Sioux City, Iowa. Amicus curiae the Federal Defender’s Office was represented by Assistant Federal Defender John Messina, by telephone from Des Moines, Iowa. The oral arguments on this issue were spirited and informative. Nevertheless, it is surprising to me that the prosecution did not present a single scintilla of medical, chemical, physiological, or other scientific or social science evidence to support its position, despite more than adequate notice that the craek-topowder ratio issue would be my central concern and despite the Department of Justice’s virtually unlimited resources for medical and scientific information. The Department of Justice also did not cite a single authoritative journal article, let alone muster the modest effort to submit a “Brandéis Brief,” in support of the 18:1 ratio. I note that the Department of Justice has made greater efforts to marshal scientific or social science evidence to overcome a single Chinese immigrant’s claim for asylum based on fear of forced sterilization. It is conceivable, however, that the prosecutors’ somewhat lukewarm advocacy for the 18:1 ratio in this case is because they found themselves on the horns of a dilemma, between prior statements of Attorney General Eric Holder and Assistant Attorney General Lanny A. Breuer, discussed below, advocating complete elimination of the craek/powder disparity, and some sense of obligation to defend the law and Sentencing Guidelines as ultimately enacted by Congress and the Commission, which used the 18:1 ratio. In these circumstances, perhaps strenuous advocacy for the 18:1 ratio would have been a difficult volte-face. B. Framing The Issue 1. The 100:1 ratio As the Supreme Court explained in considerable detail in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Anti-Drug Abuse Act of 1986 (the 1986 Act), P.L. 99-570, 100 Stat. 3207, established a “weight-driven scheme” for'mandatory minimum sentences in drug cases that, in pertinent part, “adopted a ’100-to-1 ratio’ that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine.” 552 U.S. at 96, 128 S.Ct. 558. The Sentencing Commission then developed Sentencing Guidelines that also employed this “weight-driven scheme.” Id. However, in doing so, “[t]he Commission did not use [its historical] empirical approach in developing the Guidelines sentences for drug-trafficking offenses,” but simply followed Congress’s lead. Id. The result was that the Sentencing Guidelines “ ‘set sentences for the full range of possible drug quantities using the same 100-to-1 quantity ratio,’ ” id. (quoting the 1995 Report of the United States Sentencing Commission at 1), which resulted in “base offense levels ranging from 12, for offenses involving less than 250 milligrams of crack (or 25 grams of powder), to 38, for offenses involving more than 1.5 kilograms of crack (or 150 kilograms of powder).” Id. at 97, 128 S.Ct. 558 (citing U.S.S.G. § 2D1.1(c)). As the Supreme Court also recognized in Kimbrough, the Sentencing Commission “later determined that the crack/powder sentencing disparity is generally unwarranted.” Id. at 96, 128 S.Ct. 558 (citing the 2002 Report of the United States Sentencing Commission at 91); United States v. Spears, 469 F.3d 1166, 1183 (8th Cir. 2006) (Bye, J., dissenting) (noting that, although the Commission was able to identify five “beliefs” as the apparent basis for the 100:1 ratio, in its 2002 Report, “[t]he Commission then systematically exposed each of these ‘five important beliefs’ as unsupported by its research and its study of actual federal drug sentences”), rev’d, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam). Instead, the Commission consistently recommended lower ratios: In 1995, the Commission recommended a 1:1 ratio, but Congress rejected that recommendation; in 1997, the Commission recommended a 5:1 ratio, but Congress rejected that recommendation; in 2002, the Commission recommended lowering the ratio “at least” to 20:1, but Congress also rejected that recommendation; and in 2007, Congress accepted only a modest amendment proposed by the Commission to reduce base offense levels associated with each quantity of crack cocaine by two levels. Kimbrough, 552 U.S. at 99-100, 128 S.Ct. 558. 2. My interim position Eventually, in the post-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), world in which the United States Sentencing Guidelines became advisory, instead of mandatory, the Supreme Court held in Kimbrough, 552 U.S. at 104-05, 128 S.Ct. 558, that the Anti-Drug Abuse Act of 1986 “does not require ... sentencing courts ... to adhere to the 100-to-l ratio for crack co-. caine quantities other than those that trigger the statutory mandatory minimum sentences.” The Supreme Court subsequently clarified in Spears v. United States, 555 U.S. 261, 267, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam), “that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” In Spears, in which I was the sentencing judge, I rejected a 100:1 ratio on categorical, policy grounds, because I found that it yielded an excessive sentence in light of the sentencing factors outlined in 18 U.S.C. § 3553(a). Consequently, I adopted a 20:1 ratio based on two other district court decisions that, in turn, reflected what those courts believed was the Sentencing Commission’s expert judgment that a 20:1 ratio would be appropriate in a “mine-run” case. See United States v. Perry, 389 F.Supp.2d 278, 307-308 (D.R.I. 2005) (concluding that a 20:1 ratio, as suggested by the Commission in its 2002 Report, “makes the most sense”); United States v. Smith, 359 F.Supp.2d 771, 781-782 (E.D.Wis.2005) (also using a 20:1 ratio, because the Commission’s proposal for modifying mandatory minimum thresholds, translated into guidelines terms, would have resulted in a roughly 20:1 ratio); 2002 Report to Congress 106-107, App. A, 3-6. The Supreme Court affirmed my use of a 20:1 ratio. Spears, 555 U.S. at 266-67, 129 S.Ct. at 844. 3. My adoption of a 1:1 ratio Although I adopted a 20:1 ratio in Spears, I soon returned to the question of the proper crack-to-powder ratio in United States v. Gully, 619 F.Supp.2d 633 (N.D.Iowa 2009). I again found that it was appropriate to reject the 100:1 crack-to-powder ratio in U.S.S.G. § 2D1.1, note 10, categorically, on policy grounds, for several reasons, not least of which were the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the Guidelines, the lack of support for the assumptions that apparently motivated adoption of the ratio, and the disparate impact of the ratio on black offenders. Gully, 619 F.Supp.2d at 641. I also concluded that the 100:1 ratio was a “remarkably blunt instrument” to address the perceived greater harms and dangers of crack cocaine, preferring to address those effects when they were present in a particular case. Id. Therefore, I developed what I believed was a reasoned alternative methodology, under which the sentencing court would calculate the guideline range under existing law (i.e., using the 100:1 ratio and any appropriate guideline adjustments or departures), but then calculate an alternative guideline range using a 1:1 ratio, and ultimately use or vary from that alternative guideline range, depending upon the court’s consideration of the 18 U.S.C. § 3553(a) factors, to account, for example, for the defendant’s history of violence, the presence of firearms, or the defendant’s recidivism. Gully, 619 F.Supp.2d at 644. 4. The Fair Sentencing Act of 2010 and the “new”guidelines On August 3, 2010, the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010) (the 2010 FSA), became law. The 2010 FSA altered the quantity thresholds triggering mandatory minimum punishments for crack cocaine offenses, replacing the 5-and 50-gram thresholds with 28-and 280-gram thresholds, while leaving the triggering thresholds for powder cocaine at 500 and 5,000 grams (5 kilograms), respectively. See 21 U.S.C. § 841(b)(1)(A)(ii) (powder cocaine), (b)(1)(A)(iii) (crack cocaine), (b)(1)(B)(ii) (powder cocaine), (b)(1)(B)(ni) (crack cocaine) (as amended in 2010). As a result, Congress replaced the old 100:1 ratio with a new roughly 18:1 ratio (18 x 28 grams = 504 grams; 18 x 280 grams = 5,040 grams or 5.04 kilograms). At Congress’s direction, the Sentencing Commission followed suit by adopting a similar disparate punishment scheme for crack and powder cocaine offenses, employing roughly the same 18:1 ratio. See U.S.S.G.App. C, Amend. 748, Reason for Amendment (Supplement to the 2010 Guidelines Manual, United States Sentencing Commission (2010 Supplement) (Nov. 1, 2010), Vol. 4, 43). With this background in mind, I turn to a summary of the arguments of the parties and amicus curiae concerning whether I should now adopt the “new” 18:1 crack-to-powder ratio for sentencing purposes or, instead, adhere to my prior determination, on categorical, policy grounds, that 1:1 is the proper ratio. C. Arguments Of The Parties 1. Arguments of the prosecution In both its brief and its oral arguments on the ratio issue, the prosecution hastened to acknowledge that there is now no question that a district court has the authority to vary from the Guidelines based upon a policy disagreement. The prosecution’s position, nevertheless, is that the new 18:1 ratio should not be rejected on policy grounds. The prosecution argues that the 18:1 ratio is supported by Congress’s policy determination and by the Sentencing Commission’s exercise of its characteristic institutional role. The prosecution also argues that my adoption of a 1:1 ratio would result in unwarranted sentencing disparities. More specifically, the prosecution argues that, after years of debate, Congress determined that the appropriate erack-topowder ratio is 18:1. The prosecution also argues that, on May 21, 2009, the Honorable Ricardo H. Hinojosa, Acting Chair, United States Sentencing Commission, testified before Congress that the “ ‘Commission remains committed to its recommendation in 2002 that any statutory ratio be no more than 20-to-l,’ ” and that he included a statistical analysis of federal cocaine sentences as part of his testimony. Prosecution’s Brief (docket no. 263) at 2 (quoting Prosecution’s Exhibit 1, Statement of Ricardo H. Hinojosa, at 16 (also available at http://judiciary.house.gov/ hearings/pdf/Hinojosa090521.pdf)). The prosecution then repeatedly cites the Commission’s 2002 and 2007 Reports as standing for the proposition that the Commission recommended a ratio of “at least,” rather than “no more than,” 20:1. Prosecution’s Brief at 3. The prosecution also argues that “the new crack guidelines and new statutory weights incorporating nonidentical treatment of crack and powder cocaine set forth in the 2010 FSA are based upon the Commission’s empirical research and at least 15 years of public debate over the appropriate crack/powder cocaine ratio.” Id. The prosecution contends that this is true, because the Commission has supposedly recommended a ratio of “at least” 20:1 in both its 2002 and 2007 Reports. Id. Next, the prosecution argues that, “[wjhile the actions of other judges do not bind this court in determining its sentencing ratio, those decisions are informative in determining whether to use the guidelines ratio of 18:1, a 1:1 ratio, or some other ratio to avoid unwarranted sentencing disparity.” Id. at 4. The prosecution then points out that sentencing courts have cited the crack/powder disparity as a reason for a below-guidelines sentence in only a small percentage of total crack cocaine cases in fiscal year 2009, so that “it appears that most courts give deference to the crack ratio incorporated in the guidelines.” Id. at 4-5. The prosecution also argues that it has found only one case, United States v. Whigham, 754 F.Supp.2d 239, 2010 WL 4959882 (D.Mass.2010), applying a 1:1 ratio since passage of the 2010 FSA. Thus, the prosecution opines that adopting a 1:1 ratio, instead of adhering to the 18:1 ratio passed by Congress and adopted by the Sentencing Commission, may cause unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, contrary to the goals of 18 U.S.C. § 3553(a)(6). In short, the prosecution asserts, “The Department of Justice advocates that in the typical crack cocaine case, such as this one, the court impose a sentence within the applicable federal sentencing guideline range determined by the 18:1 ratio.” Id. at 6-7. 2. Arguments of amicus curiae Like the prosecution, the Federal Defender, as amicus curiae, acknowledges that a sentencing court retains the authority to reject the new 18:1 ratio, but unlike the prosecution, the Federal Defender urges me to do just that and to continue to use the 1:1 ratio that I adopted in Gully. The Federal Defender argues that each of the reasons and concerns that I cited for rejecting a 100:1 ratio remains as valid today with respect to the 18:1 ratio. The Federal Defender also argues that there has been no exercise of institutional expertise in the Commission’s adoption of the 18:1 ratio mandated by Congress and that Congress’s mandate is based only on political compromise. More specifically, the Federal Defender argues that the Commission’s stated “Reason For Amendment” to the Sentencing Guidelines to use a new 18:1 ratio was not that the Commission had exercised its institutional role to develop guidelines based on actual sentencing practices or institutional expertise, but merely that the Commission was responding to congressional directives. The Federal Defender also argues that unsupported assumptions about the harmfulness of crack cocaine versus powder cocaine continue to infect the ratio, because Congress did not make any new findings in making its ameliorative changes in crack cocaine punishment. The Federal Defender argues that the Commission, likewise, cited no new findings that would show that the 18:1 ratio now perfectly or fairly captures the balance of harms between crack and powder cocaine. Next, the Federal Defender points out that the new ratio continues the pernicious effects of punishing street-level crack dealers more harshly than major traffickers in powder cocaine and disproportionately impacting African-American defendants. The Federal Defender argues that the new 18:1 ratio continues to be a misguided proxy for the assumed harms of crack cocaine offenses, and is, at best, an imperfect tool for determining an appropriately individualized sentence for cocaine offenses. The Federal Defender points out that, in enacting the 2010 FSA, Congress specifically directed the Sentencing Commission to adopt enhancements for certain aggravating circumstances in drug-trafficking cases, but that, because the Guidelines still do not treat crack and powder cocaine as equivalents, these new enhancements for aggravating circumstances are piled on top of the already enhanced punishment for the assumed presence of the same aggravating circumstances in crack cases. The Federal Defender describes this effect as a “double whammy” that exacerbates the problems with the “proxy” approach. The Federal Defender also argues that Congress’s adoption of the 18:1 ratio was admittedly nothing more than a political compromise between those who favored the complete elimination of all crack/powder disparities and those who believed, for whatever reason, that crack offenses should be punished more severely than powder offenses. The Federal Defender points out that, before the 2010 FSA was passed, the Department of Justice urged that the craek/powder disparity be completely eliminated; that the House Judiciary Committee originally voted to send to the full house a version of a bill that would have enacted a 1:1 crack-to-powder ratio; and that the Senate also initially proceeded with a bill using a 1:1 ratio; but that the Senate realized it could not garner enough votes to eliminate the disparity in its entirety. The Federal Defender cites numerous statements from senators and representatives in the Congressional Record reflecting a decision to compromise to eliminate at least some of the injustices of the 100:1 ratio. Thus, the Federal Defender argues that Congress’s move to an 18:1 ratio as a compromise measure “should not be viewed by this court as a final, binding judgment or sentiment that all is now right and fair with crack cocaine sentencing.” Amicus Curiae Brief at 17. 3. Arguments of the defendant In addition to adopting the Federal Defender’s arguments, Williams argues that the Supreme Court’s March 2, 2011, decision in Pepper v. United States, — U.S. —, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), emphatically affirms the ability of sentencing courts to reject application of the Sentencing Guidelines based on categorical, policy disagreements, and that the Court found that “ ‘[t]his is particularly true when the Commission’s views rest on wholly unconvincing rationales not reflected in the sentencing statutes Congress enacted.’ ” Defendant’s Brief In Support Of Motion For Downward Variance (docket no. 274) at 3 (citing Pepper, 131 S.Ct. at 1247). Williams argues that, lacking any present rationale for the 18:1 ratio from either Congress or the Commission, the prosecutor’s brief relies upon older statements by the Commission in support of a recommendation for a 20:1 ratio. However, Williams points out that I have already rejected those rationales in Gully. Williams also argues that a court does not have discretion to evaluate the crack/powder ratio in light of the goals of the Sentencing Reform Act, but an obligation to do so under Kimbrough and Spears. He points out that the Supreme Court has already rejected the prosecution’s “unwarranted disparity” argument by concluding that appellate review for reasonableness and on-going revision of the guidelines, not curtailing of district courts’ authority to reject certain guidelines on policy grounds, is the remedy for the potential problem that differing sentences may be imposed depending on what judge is drawn for sentencing. He also argues that some good sentences and some bad sentences that might result from some judges’ policy disagreements with the Guidelines is better than an uninterrupted run of bad, but consistent sentences. II. LEGAL ANALYSIS I find that it is appropriate to reiterate the failings of the rationales for the 100:1 ratio in the 1986 Act, then see what, if anything, has changed in the justifications for the “new” 18:1 ratio in the 2010 FSA and the 2010 amendments to the Sentencing Guidelines. A. The 1986 Act: A Ratio In Search Of A Rationale 1. Haste makes waste As Judge Bye recognized in his dissent from the circuit court’s majority opinion in Spears, the 1986 Act was rushed through Congress: [T]he Commission noted [in its 2002 Report] “Congress bypassed much of its usual deliberative process” when it passed the Anti-Drug Abuse Act of 1986 “[b]ecause of the heightened concern and national sense of urgency surrounding drugs generally and crack cocaine specifically[.]” 2002 Report at 5. “As a result, there were no committee hearings and no Senate or House Reports accompanying the bill that ultimately passed.... Thus, the legislative history for the bill that was enacted into law is limited primarily to statements made by senators and representatives during floor debates.” Id. at 5-6. United States v. Spears, 469 F.3d 1166, 1182 (8th Cir.2006) (Bye, J., dissenting), rev’d, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam); United States v. Robinson, 542 F.3d 1045, 1047 (5th Cir.2008) (also noting the 1986 Act’s “rushed” passage). Perhaps as a consequence of Congress’s rush to pass the 1986 Act, no one has found any express explanation for the 100:1 crack-to-powder ratio in its legislative history. See, e.g., Robinson, 542 F.3d at 1047 (“The 1986 Act’s legislative history contains ‘no discussion of the 100:1 ratio.’ ” (quoting William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L.Rev. 1233, 1252 (1996)); Spears, 469 F.3d at 1182-83 (Bye, J., dissenting) (“The Commission next examined the legislators’ statements [in support of the 1986 Act] in an attempt to identify their intent in adopting the 100:1 ratio, prefaced with the comment ‘there is no authoritative legislative history that explains Congress’s rationale for selecting the 100-to-l drug quantity ratio for powder cocaine and crack cocaine offenses.’ ” (quoting Sentencing Commission’s May 2002 Report to Congress on ‘Cocaine and Federal Sentencing Policy’ at 7)). Indeed, the legislative history to the 1986 Act provides no single, consistent rationale for the crack/powder disparity. Id. (again citing Spade, Beyond the 100:1 Ratio, 38 Ariz. L.Rev. at 1252). Nevertheless, federal judges, the Sentencing Commission, and other commentators have gleaned from the legislative history of the 1986 Act five “beliefs” of members of Congress that purportedly motivated enactment of the 100:1 crack-to-powder ratio. As the dissenter in Spears explained, The five beliefs were: • Crack cocaine was extremely addictive. The addictive nature of crack cocaine was stressed not only in comparison to powder cocaine, but also in absolute terms. • The correlation between crack cocaine use and distribution and the commission of other serious and violent crimes was greater than that with other drugs. Floor statements focused on psychopharmacologically driven, economically compulsive, as well as systemic crime (although members did not typically use these terms). • Physiological effects of crack cocaine were considered especially perilous, resulting in death to some users and causing devastating effects on children prenatally exposed to the drug. • Young people were particularly prone to using and/or being involved in trafficking crack cocaine. • Crack cocaine’s purity and potency, low cost per dose, and the ease with which it was manufactured, transported, disposed of, and administered, were all leading to its widespread use. [Sentencing Commission’s May 2002 Report to Congress on ‘Cocaine and Federal Sentencing Policy’] at 9-10. Spears, 469 F.3d at 1182-83 (Bye, J., dissenting); see also Robinson, 542 F.3d at 1047 (“[V]arious members of Congress believed that ‘crack is more addictive than powder cocaine’; ‘that it causes crime’; ‘that it has perilous physiological effects such as psychosis and death’; ‘that young people are particularly prone to becoming addicted to it’; and ‘that crack’s low cost per dose and ease of manufacture would lead to even more widespread use of it.’ ” (citing Spade, Beyond the 100:1 Ratio, 38 Ariz. L.Rev. at 1252-55))); United States v. Byse, 28 F.3d 1165, 1169 (11th Cir.1994) (“[R]eview of the legislative history of the Anti-Drug Abuse Act of 1986, in which Congress amended 21 U.S.C. § 841(b)(1) to provide enhanced penalties for offenses involving specific amounts of controlled substances, reveals that Congress imposed a harsher penalty for base cocaine than for powder cocaine because it ‘(1) has a more rapid onset of action, (2) is more potent, (3) is more highly addictive, (4) is less expensive than cocaine powder, and (5) has widespread availability.’ ” (quoting United States v. Thurmond, 7 F.3d 947, 953 (10th Cir.1993)). Even if these five “beliefs” withstood scrutiny — which most do not, for the reasons explained below — there was nothing in the legislative history for the 1986 Act that shows any attempt to correlate the magnitude of the perceived greater harms of crack cocaine to a 100:1 crack-to-powder disparity. For example, nothing in the legislative history showed that crack is 100 times more addictive than powder; that it causes 100 times as much crime; that its physiological effects are 100 times worse; that young people are 100 times more likely to become addicted to it; or that crack is 100 times less expensive per dose or 100 times easier to manufacture than powder. Moreover, nothing in the legislative history for the 1986 Act shows that the 100:1 ratio was necessary to provide an effective deterrent for any of the supposed greater harms of crack cocaine, either as compared to powder or absolutely. Thus, I must agree with the assessment of the Fifth Circuit Court of Appeals that the 100:1 ratio in the 1986 Act “was selected ... after Congress decided to double the 50:1 ratio found in an earlier version of the legislation to ‘symbolize redoubled Congressional seriousness’ on the issue.” Robinson, 542 F.3d at 1047 (quoting United States v. Clary, 846 F.Supp. 768, 784 (E.D.Mo.1994), rev’d, 34 F.3d 709 (8th Cir. 1994)). The Sentencing Commission took a similar approach, establishing guidelines sentencing ranges based on a 100:1 ratio. Kimbrough, 552 U.S. at 96-97, 128 S.Ct. 558. Like Congress, “[a]t the time it issued this Guideline the Commission did not explain why it decided to extend the 1986 Act’s ‘quantity-based approach in this way.’ ” United States v. Pickett, 475 F.3d 1347, 1350 (D.C.Cir.2007) (quoting U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing 49 (Nov.2004) (“2004 Report”)). “As a result of the Guideline, ‘the sentencing guideline range (based solely on drug quantity) is three to over six times longer for crack cocaine offenders than powder cocaine offenders with equivalent drug quantities, depending on the exact quantity of the drug involved.’ ” Id. (quoting U.S. Sentencing Comm’n, Cocaine and Federal Sentencing Policy 11 (May 2002) (“2002 Report”)). Like Congress, the Commission never explained what, if any, empirical evidence or social science studies supported the disparate effect of the 100:1 crack-to-powder ratio on sentences in crack and powder cases. Thus, the use of the 100:1 ratio in establishing erack/powder guidelines simply “was mandated by Congress in 21 U.S.C. § 841(b).” United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992); accord Kimbrough, 552 U.S. at 96, 128 S.Ct. 558. 2. Resulting flaws As the Fifth Circuit Court of Appeals explained, Over the next two decades the 100:1 ratio was subjected to constant criticism, as commentators argued that the ratio was unjustified and the product of a severe overreaction, as the crack epidemic had not turned into the cataclysmic event many had feared. The Sentencing Commission itself eventually led the charge to change the ratio. Beginning in 1995, the Commission determined that the ratio was not defensible, and it proposed an amendment to the Guidelines that would implement a 1:1 ratio. Congress rejected the amendment. Robinson, 542 F.3d at 1048 (footnotes omitted). Although Congress purportedly believed that “the evidence overwhelmingly demonstrates significant distinctions between crack and powder cocaine,” when it rejected the Commission’s call to change the 100:1 ratio in 1995, see H.R.Rep. No. 104-272 at 3-4 (1995), reprinted in 1995 U.S.C.C.A.N. 335, 337, the supposedly “overwhelming” evidence was nothing more than anecdotal hearing testimony, on a single day, that appeared to confirm Congress’s “five beliefs” about crack cocaine. See id. (“On June 29, 1995, the Judiciary Committee’s Crime Subcommittee held a hearing to examine the Sentencing Commission’s recommended changes to the sentencing guidelines that would equalize penalties for similar quantities of crack and powder cocaine. Many of the hearing witnesses, including members of the Sentencing Commission, acknowledged important differences between crack and powder cocaine: crack is more addictive than powder cocaine; it accounts for more emergency room visits; it is most popular among juveniles; it has a greater likelihood of being associated with violence; and crack dealers have more extensive criminal records than other drug dealers and tend to use young people to distribute the drug at a greater rate.”). As the Supreme Court noted in Kimbrough, Although the Commission immediately used the 100-to-l ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100-to-l ratio, the Commission concluded that the disparity “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” 2002 Report 91. Kimbrough, 552 U.S. at 97, 128 S.Ct. 558. Like the Supreme Court, I will summarize the three principal problems with the 100:1 crack-to-powder ratio identified by the Commission. a. Overblown fears As the Supreme Court noted, First, the Commission reported, the 100-to-l ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.” [2002 Report]; see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http: //www.ussc.gov/r_congress/cocaine2007. pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstate^]” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence ... than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96. Kimbrough, 552 U.S. at 97, 128 S.Ct. 558. The District of Columbia Circuit Court of Appeals also relied on the Commission for its identification of slightly different problems with relying on the relatively greater harmfulness of crack to justify the 100:1 ratio: With respect to all drug trafficking offenses, the emphasis on drug quantity distorted the importance of that element as compared with other offense characteristics. 2004 Report at 50. With respect to cocaine, the Commission concluded that although powder cocaine, which is usually snorted, was less addictive than crack cocaine, which is smoked, see United States v. Brisbane, 367 F.3d 910, 911 (D.C.Cir.2004), this difference could not account for the 100-to-l ratio. All forms of cocaine are addictive. The “current penalty structure — which yields a five-year mandatory minimum sentence for ten to fifty doses of crack cocaine compared to 2,500 to 5,000 doses of powder cocaine — greatly overstates the relative harmfulness of crack cocaine.” 2002 Report at 93. Pickett, 475 F.3d at 1350 (footnote omitted). In his dissent from the circuit opinion in Spears, Judge Bye detailed why each of the “five beliefs” of Congress upon which the 100:1 ratio was apparently based is no more than partially true. See Spears, 469 F.3d at 1183-87 (Bye, J., dissenting). I find it unnecessary to remake the wheel so ably made by Judge Bye and, instead, simply summarize his detailed and extensively-documented observations. Citing reports of the Commission, which in turn were based on its own data and social science research, Judge Bye noted that the belief that crack is more addictive than powder is “at least partially true,” but both are potentially addictive, so that “the 2002 Report establishes that the ‘belief crack cocaine is extremely more addictive than other drugs, including powder cocaine, is simply not well-founded.” Id. at 1183 (emphasis in the original). Similarly, Judge Bye noted that the Commission’s extensive examination of data gathered from actual crack cocaine and powder cocaine offenses in the federal system demonstrated that the “belief’ that there was a correlation between crack cocaine and other serious or violent crime was not well-supported, because the correlation was not significantly greater than the correlation with powder cocaine. Id. at 1184. He summarized this point, as follows: In sum, the Commission’s findings indicate there is only a marginal difference between crack cocaine and powder cocaine with respect to either’s relation to other serious and violent crimes (with powder cocaine exceeding crack cocaine in some categories), and in the case of both forms of the drug the aggravating factors deemed to be the most egregious “still occurred in only a minority of the cases.” [2002 Report] at 32. Spears, 469 F.3d at 1185 (Bye, J., dissenting). Judge Bye also pointed out that the Commission’s investigation, and the social science research it relied upon, could not confirm that crack cocaine is devastatingly more harmful to children from prenatal exposure than powder cocaine is, because the effects were, in fact, identical. Id. at 1185-86 (citing not only the Commission’s 2002 Report, but copious research and studies considered by the Commission). Judge Bye also noted that, based on data assembled by the Commission itself and other social science research, the Commission’s 2002 Report “also dispels the belief that young people are particularly prone to using crack and trafficking in crack.” Id. at 1186-87. Indeed, “the evidence indicates just the opposite — when the use of crack is compared to the use of powder cocaine, the evidence suggests powder cocaine use is more prevalent among young people than crack cocaine.” Id. at 1187. “Finally,” Judge Bye observed, “the Commission’s report generally indicates crack cocaine use is not nearly as widespread as the use of powder cocaine.” Id. Judge Bye opined, and I agree, that “[i]f anything, the evidence suggests that powder cocaine should be targeted more severely than crack.” Id. b. Inconsistency with the goals of the 1986 Act In Kimbrough, the Supreme Court noted that another problem with the eraek/powder disparity recognized by the Commission in its Reports was that the disparity “is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers.” Kimbrough, 552 U.S. at 98, 128 S.Ct. 558. More specifically, Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. See 1995 Report 66-67. But the 100-to-l ratio can lead to the “anomalous” result that “retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” Id., at 174. Kimbrough, 552 U.S. at 98, 128 S.Ct. 558. I find that this problem appears to be based, at least in part, on the assumption that crack cocaine is a different drug from powder cocaine. While it is true that the two forms of cocaine are chemically different, that fact alone misses the fact that they are also readily convertible into each other chemically and that their “convertibility” is part of the usual course of cocaine trafficking, from producers to retail purchasers. As the Eighth Circuit Court of Appeals has recognized, [C]ocaine occurs in nature as an alkaloid (organic base). Most cocaine imported into this country is first processed into the white, acidic powder cocaine form. Crack cocaine was developed to meet the demand for a relatively inexpensive, smokeable, highly-addictive form of cocaine. Crack is a cocaine base that is made from powder cocaine, for example, by heating powder cocaine and baking soda dissolved in water. United States v. Robinson, 462 F.3d 824, 825 (8th Cir.2006). In other words, natural cocaine base is processed into powder cocaine, for importation into the United States, then converted back into its base form as “crack” by cooking it with baking soda and water. United States v. Gunter, 462 F.3d 237, 240 n. 3 (3d Cir.2006). The Sentencing Commission likewise recognized as early as 1995 that “[d]rug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers.” Kimbrough, 552 U.S. at 98, 128 S.Ct. 558 (citing the 1995 Report at 66-67). As I noted in Gully, [T]he relative ease with which powder cocaine can be converted to crack cocaine, which, among other things, allows sentences to be dramatically affected by when government officials decide to seize and arrest drug dealers, see United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (April 1997) at 3-8, strongly suggests that the distinctions between the two controlled substances are artificial, at best. Gully, 619 F.Supp.2d at 641; accord Kimbrough, 552 U.S. at 98, 128 S.Ct. 558 (because of the convertibility of powder cocaine into crack cocaine, “the 100-to-l ratio can lead to the ‘anomalous’ result that ‘retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.’ ” (quoting 1995 Report at 174)); and compare 132 Cong. Rec. S8091-06, 1986 WL 776420 (daily ed. June 20, 1986) (statement of Sen. Alfonse D’Amato) (suggesting that, by treating quantities of freebase (crack) cocaine more seriously than equal quantities of powder cocaine, the amendments in the 1986 Act would close “a loophole that actually encourages drug dealers to sell the more deadly and addictive substance, and lets them sell thousands of doses without facing the maximum penalty possible”). c. Pernicious racial impact In Kimbrough, the Supreme Court pointed noted that the Commission had identified one more flaw with the 100:1 ratio: Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-l ratio are imposed “primarily upon black offenders.” Ibid. Kimbrough, 552 U.S. at 98, 128 S.Ct. 558. Although other courts have recognized this pernicious racial impact, they have held that there is no evidence of racial animus or discriminatory intent, but only evidence of an unintended result of a ratio supported by racially-neutral reasons. See, e.g., United States v. Watts, 553 F.3d 603, 604 (8th Cir.2009) (“Congress clearly had rational motives for creating the distinction between crack and powder cocaine” and “the Equal Protection Clause was not violated because there was no evidence of a racially discriminatory motive — even after noting the percentage of African Americans sentenced under the [higher crack cocaine] mandatory minimum”); Pickett, 475 F.3d at 1348 n. 1 (“Just as Congress had race-neutral reasons for adopting the 100-to-1 ratio in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, see [United States v.] Johnson, 40 F.3d [436,] 441 [ (D.C.Cir. 1994) ], it had race-neutral reasons for declining to adopt the 1-to-1 ratio the Sentencing Commission proposed [in 1995].”); United States v. Thomas, 86 F.3d 647, 655 (7th Cir.1996) (reiterating the holding in United States v. Baker, 78 F.3d 1241, 1248 (7th Cir.1996), that the disparity between crack and powder cocaine in the Sentencing Guidelines has a rational basis and does not violate the Equal Protection Clause over a defendant’s challenge to the Sentencing Guidelines as racially discriminatory); United States v. Buchanan, 70 F.3d 818, 829 n. 10 (5th Cir.1995) (noting that court’s repeated rejection of claims that the punishment disparity between crack and powder under the Sentencing Guidelines constitutes racial discrimination in violation of Fifth Amendment equal protection); United States v. Moore, 54 F.3d 92, 97-99 (2d Cir.1995) (holding that Congress and the Sentencing Commission did not enact the 100:1 ratio with a racially discriminatory purpose, despite statistical evidence that the vast majority of crack cocaine offenders are black while many powder cocaine offenders are white); United States v. Frazier, 981 F.2d 92, 95 (3d Cir.1992) (per curiam) (“We join several other courts in agreeing that there is no evidence whatsoever that suggests that the distinction drawn between cocaine base and cocaine was motivated by any racial animus or discriminatory intent on the part of either Congress or the Sentencing Commission.”). Nevertheless, the 2004 Report recognized that “§ 2Dl.l’s use of the 100-to-l ratio and its quantity-based approach threatens ‘public confidence in the federal courts’ because it has had a disproportionate impact on African-American offenders, who in 2002 made up eighty-one percent of those sentenced for trafficking crack,” Pickett, 475 F.3d at 1354 (quoting the 2004 Report at 131, 135), and who in fiscal year 2009, still constituted 79 percent of those convicted of crack cocaine offenses. United States Sentencing Comm’n, Overview of Federal Criminal Cases Fiscal Year 2009 at 7. Legislators, judges, prosecutors, and others also joined in the condemnation of the racial disparity resulting from federal sentencing policy, based on the 100:1 crack-to-powder ratio. Speaking against the 1995 .bill that rejected the Sentencing Commission’s recommendation to eliminate the crack/powder disparity entirely, Representative Scott stated, The reason for the Commission is to put things in perspective, Mr. Chairman. Five-year mandatory minimum for users and small-time street dealers with a couple of hundred dollars worth, 95 percent black and Hispanic. Street dealers will be replaced as soon as they get arrested. Those distributing tens of thousands' of dollars of uncooked crack or pre-crack or powder can get probation, a group 75 percent white. The Commission can treat large-scale dealers of tens of thousands of dollars of uncooked crack more seriously than street dealers or simple possession without regard to political implications. This bill rejects the intelligent, nonpolitical analysis of the Commission in an unprecedented act. The bill suggests that we should go back, to send the issue back to the Sentencing Commission to study it. Yet there is no date for the end of the study. And there is nothing to study. Because they told us what they thought. They told us that there is an unjustified disparity with racial overtones. We should defeat the bill, let the nonpolitical Sentencing Commission recommendations become law. It is the fair thing to do. 141 Cong. Rec. H10255-02, H10268, 1995 WL 611041 (daily ed. Oct. 18, 1995). Speaking in support of S. 1685, a bill to reduce the sentencing disparity between powder and crack cocaine violations, at its introduction on June 25, 2007, Senator Kennedy said, In its 2002 report, as well as an updated report to Congress in May, the Commission has repeatedly recognized that the 100-to-l ratio exaggerates the relative harm of crack cocaine and creates unwarranted disparities that are correlated with race and class. ' With a new sense of urgency, the Commission continues to call on Congress to eliminate the 100-to-l ratio. 153 Cong. Rec. S8358-01, S8359, 2007 WL 1813954 (daily ed. June 25, 2009). Similarly, in 2007 then-Senator Joseph Biden stated, bluntly, “This 100:1 disparity is unjust, unfair, and the time has long pas[sed] for it to be undone.” Steven Fanucchi, Senate Bill Will Fix Sentencing Disparity For Crack Cocaine Possession, The Leadership Conference Website (July 18, 2007) (quoting Sen. Biden speaking in support of the introduction of the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S.1711)) (available at http:// www.civilrights.org/criminal-justice/ sentencing/sentencing_disparity_l .html). On October 15, 2009, when he introduced the original bill that later became the 2010 FSA, which then would have completely eliminated the crack/powder disparity, Senator Durbin quoted Attorney General Erie Holder’s testimony before the Senate Judiciary Committee as follows: I asked him about this issue and here is what he said. When one looks at the racial implications of the crack-powder disparity, it has bred disrespect for our criminal justice system. It has made the job of those of us in law enforcement more difficult.... [I]t is time to do away with that disparity. Here on Capitol Hill, Democrats and Republicans alike have advocated fixing the disparity for years. 155 Cong. Rec. S10488-01, S10491, 2009 WL 3319524 (daily ed. Oct. 15, 2009) (statement of Sen. Durbin, quoting Attorney General Holder). In a letter favoring retroactivity of changes to the crack guidelines dated November 2, 2007, the Committee on Criminal Law of the Judicial Conference of the United States noted that the severity of then-current crack penalties, based on a 100:1 ratio, mostly impacted minorities, explaining: Given the possibility of real disparity in cocaine sentences and the corrosive effect of perceived disparity on public confidence in the courts, the Criminal Law Committee determined that it was appropriate to recommend that the Judicial Conference oppose the existing sentencing difference between crack and powder cocaine sentences and support the reduction of the difference. Accordingly, the Criminal Law Committee made the following recommendation: Recommendation: That the Judicial Conference oppose the existing sentencing difference between crack and powder cocaine sentences and support the reduction of that difference. At its September 2006 meeting, the Judicial Conference endorsed that recommendation. Available at http: //www.famm.org/ Repository/Files/clc_Ietter_re — crack_ retroactivity.pdf. In testimony before the Sentencing Commission, in' November 2007, Hilary Shelton, director of the NAACP’s Washington Bureau, said, The policy of the federal government is having a devastating effect on our communities and that these laws continue to be maintained show[s], at the very least, a callous disregard for our people and our communities. It is this disregard for the fate of our people and our community that continues to erode our confidence in our nation’s criminal justice system. Quoted in Christopher Moraff, A Crack in the System, The American Prospect (July 9, 2007) (available at http://famm.org/Press Room/FAMMintheNews/American Prospeet70907.aspx). 3. My reasons for rejecting the 100:1 ratio As noted in the Introduction section of this ruling, in United States v. Gully, 619 F.Supp.2d 633 (N.D.Iowa 2009), as I had in Spears, I found that it was appropriate to reject the 100:1 crack-to-powder ratio in U.S.S.G. § 2D1.1, note 10, categorically, on policy grounds, for several reasons. Those reasons were the following: The 100:1 ratio does not exemplify the Sentencing Commission’s exercise of its characteristic institutional role of employing an empirical approach based on data about past sentencing practices to develop sentencing guidelines, but is the result of congressional mandates that interfere with and undermine the work of the Sentencing Commission; the assumptions about the relative harmfulness of crack cocaine and powder cocaine and the harms that come with trafficking in those controlled substances are not supported by recent research and data; the 100:1 ratio is inconsistent with the goals of the 1986 Act, because it tends to punish low-level crack traffickers more severely than major traffickers in powder cocaine; and its disproportionate impact on black offenders fosters disrespect for and lack of confidence in the criminal justice system. Gully, 619 F.Supp.2d at 641. I noted, further, [E]ven if crack is more addictive than powder, and even if crack offenses are more likely to involve weapons or bodily injury or to be associated with higher levels of crime, see [Kimbrough, 552 U.S. at 98, 128 S.Ct. at 568], the 100:1 ratio is a remarkably blunt instrument to address those effects, because it simply assumes that the quantity ratio can be a proxy for these other harms, instead of basing the punishment on the additional criminal effects and use of weapons when they are present in a particular case. In addition, the relative ease with which powder cocaine can be converted to crack cocaine, which, among other things, allows sentences to be dramatically affected by when government officials decide to seize and arrest drug dealers, see United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (April 1997) at 3-8, strongly suggests that the distinctions between the two controlled substances are artificial, at best. Gully, 619 F.Supp.2d at 641 (emphasis in the original). In Gully, I also reconsidered my adoption of the 20:1 ratio in Spears. I concluded in Gully that even the Commission’s later recommendation of a 20:1 ratio was influenced at least as much by prior congressional rejections of lower ratios and the policy considerations that Congress had mandated be part of the calculus of the appropriate ratio as it was by any empirical evidence concerning the appropriate sentences for crack offenses. See id. at 642 (comparing Amendments to the Sentencing Guidelines for United States Courts, 60 Fed.Reg. 25075-25077 (1995) (1:1 ratio)); with United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 2 (April 1997) (5:1 ratio); United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, viii (May 2002) (recommending reducing the ratio “at least” to 20:1). I found that the reasons for my policy objections to the 100:1 ratio apply with equal force to a 20:1 ratio: Specifically, a 20:1 ratio still improperly uses the quantity ratio as a proxy for various kinds of harm and violence that may or may not come with trafficking of crack cocaine in a particular case. Id. Thus, I stated that I no longer considered 20:1 to be the most appropriate ratio. Id. Instead, I opined that “the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.” Id. at 641. Consequently, I sought an appropriate reasoned alternative methodology for sentencing in light of my rejection of the Sentencing Guidelines provisions for crack cases. In Gully, I found, [T]he appropriate method is to calculate the guideline range under existing law (i.e., using the 100:1 ratio and any appropriate guideline adjustments or departures), but then to calculate an alternative guideline range using a 1:1 ratio, and to use or vary from that alternative guideline range depending upon the court’s consideration of the 18 U.S.C. § 3553(a) factors to account, for example, for the defendant’s history of violence, the presence of firearms, or the defendant’s recidivism. Gully, 619 F.Supp.2d at 644. I opined that this method uses “a readily ascertainable guideline range based on a 1:1 ratio, after rejecting the 100:1 guideline ratio on policy grounds,” but then permits the court to “vary based on case-or defendant-specific factors pursuant to 18 U.S.C. § 3553(a), instead of varying (probably downward) so