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September 14, 2006 - Philadelphia Inquirer (PA)

Court Ruling May Affect Crack Cases

By Emilie Lounsberry, Inquirer Staff Writer

Return to Drug War News: Don't Miss Archive

When Johnny Gunter got hit with a 24-year prison term for possessing 72 grams of crack cocaine, he became one of the thousands of drug defendants to receive a stiffer sentence because the drug was crack rather than powder cocaine.

That was because a 1986 federal drug law established a two-tier sentencing differential - with tougher sentences for crack defendants -- as a result of the view within the criminal justice system that crack triggered more violent crime.

But a federal appeals court in Philadelphia has concluded that judges can disregard the two-tier sentencing, which required 100 times more powder cocaine than crack for the same prison term.

In its 29-page ruling issued Monday, the U.S. Court of Appeals for the Third Circuit vacated Gunter's sentence, saying that the U.S. District Court judge erred in believing he was required to adhere to a prison term based on the 100-to-1 ratio.

The panel of three judges -- Thomas L. Ambro, Julio M. Fuentes and Morton I. Greenberg - said Gunter must get a new sentencing hearing.

Because the U.S. Supreme Court ruled last year that federal sentencing guidelines were advisory rather than mandatory, the appeals court said, judges must consider the differential for crack but are not required to impose the sentences called for under the differential.

"The limited holding here is that district courts may consider the crack/powder cocaine differential in the guidelines as a factor, but not a mandate, in the ... sentencing process," Ambro wrote.

Assistant U.S. Attorney Robert A. Zauzmer said yesterday the ruling was important -- and likely to be cited by every defendant in a crack case.

"This is a significant opinion which we are studying closely," said Zauzmer, who said prosecutors were considering whether to ask the appeals court to reconsider the decision or appeal to the U.S. Supreme Court.

Assistant Federal Defender David L. McColgin said the two-tiered sentencing structure created a racial disparity because crack is more prevalent in the black community.

"This has a great impact in helping to reduce the racial disparity that stems from that ratio," McColgin said.

Gunter, 32, who is black, was indicted on federal drug charges after detectives found him in a West Reading motel with 72 grams of crack and a loaded .25-caliber firearm.

Contact staff writer Emilie Lounsberry at 215-854-4828 or

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