                             UNPUBLISHED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.
Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.




                                2
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.




                                             3
                                       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                 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.

     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


     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.



                                        4
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                       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.

       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


       2
       An “eight ball” is 3.5 grams or one-eighth an ounce of
cocaine.



                                             5
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



                                          6
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]


                                         7
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

                                         8
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

                                        9
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

                                        10
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

                                           11
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

                                           12
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

                                     13
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



                                          14
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            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.

      3
       The conviction of possession of cocaine also is a “felony
drug offense” for purposes of triggering enhanced penalties
under § 841(b).


                                           15
       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



                                         16
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

                                            17
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.



                                      18
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

                                            19
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,

                                             20
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-




                                      21
39. 1 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.

       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).



                                           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.



                                           22
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 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.

     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-


     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.




                                           23
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

                                               24
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

                                     25
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




                                             26
incarceration. 3 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).

      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.).


                                             27
        As    has     been    well     documented,             these    harsh    policies       are

devastating          to   communities        of     color. 4         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-


        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).



                                                   28
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 However, as

observed by the Supreme Court, unlike the sentencing guidelines

as a whole, the Commission “did not use [an] empirical approach


      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).



                                                 29
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

                                                  30
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

                                          31
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   While   the



     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:

          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)
                                     32
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).



                                      33
acknowledge the nation’s failed drug policy and to act on that

acknowledgement.

     As a nation, we are smart enough to do better.




                               34
