                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



BRIAN A. DAVIS,

         Plaintiff,
                v.                                       Civil Action No. 11-1433 (JEB)
UNITED STATES SENTENCING
COMMISSION,

        Defendant.


                                 MEMORANDUM OPINION

         Congress and the United States Sentencing Commission have engaged in a lengthy and

ongoing dialogue about the proper penalties for offenses involving crack and powder cocaine. In

1995, the Commission proposed jettisoning any differential treatment of the two, but Congress

expressly rejected this proposal several months later in the passage of Public Law 104-38.

Plaintiff Brian Davis, who is serving a 30-year sentence for crack-related crimes, has brought

this action requesting the Court to issue a writ of mandamus compelling the Commission to

reinstate the 1:1 ratio it proposed in 1995. In moving to dismiss the case, the Commission argues

that mandamus cannot be proper here where Public Law 104-38 is not unconstitutional. The

Court agrees and will grant the Motion.

   I.       Background

         A. Statutory Background

         Congress passed the Anti-Drug Abuse Act of 1986 as a major volley in the highly

publicized “War on Drugs.” As part of its mission to “improve enforcement of Federal drug

laws,” Congress amended the penalties in the Controlled Substances Act for offenses involving
powder and crack cocaine. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, intro., 100

Stat. 3207. The amendments mandated a five-year minimum sentence for, inter alia, distributing

500 grams of powder or 5 grams of crack cocaine, and a ten-year minimum for 5 kilograms of

powder or 50 grams of crack, thus establishing a 100:1 sentencing ratio for powder to crack. See

id. § 1002.

       In response to growing concerns about the effects of this ratio in the early 1990s,

Congress directed the Sentencing Commission to research the policy’s impact and submit a

report of its findings. See U.S. Sentencing Commission, Special Report to Congress: Cocaine

and Federal Sentencing Policy at iii (1995). The report, submitted in February 1995, concluded

that “[r]esearch and public policy may support somewhat higher penalties for crack versus

powder cocaine, but a 100-to-1 quantity ratio cannot be recommended.” Id. at xiv. On May 1,

1995, consistent with that report, the Commission submitted to Congress proposed amendments

to the Sentencing Guidelines that would establish a 1:1 ratio for penalties between crack and

powder offenses.

       Congress did not agree. By passing Public Law 104-38, it expressly rejected the

Commission’s proposed 1:1 ratio. At the same time, Congress charged the Commission with

submitting new recommendations reducing the 100:1 disparity while keeping the sentences

imposed for crack cocaine generally higher than those for powder cocaine. See Act of Oct. 30,

1995, Pub. L. No. 104-38, 109 Stat. 334. The Commission submitted more Special Reports

concerning cocaine sentencing over the ensuing years, each time recommending a reduction in

the ratio. Eventually, in 2010, Congress passed the Fair Sentencing Act, which adjusted the ratio

to 18:1. See Pub. L. 111-220, 124 Stat. 2372.




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       B. Factual and Procedural Background

       In 1993, Plaintiff Brian Davis was convicted of conspiracy to possess with intent to

distribute and distribution of crack and powder cocaine, and the trial court imposed a life

sentence. See Davis v. U.S. Sent. Comm’n, 716 F.3d 660, 662 (D.C. Cir. 2013). Subsequent

amendments to the Sentencing Guidelines lowered base offense levels for crimes involving

certain amounts of crack, but not the amount for which Davis was responsible. See id.

Regardless, “[i]n 2008, the district court reduced his sentence from life to 360 months based on

an unrelated amendment to the Guidelines.” Id.

       Over the years, Davis has filed assorted motions and suits in an attempt to vacate or

lower his sentence, but with no success. For instance, in 2001, the Fifth Circuit affirmed the

dismissal of his civil-rights actions and characterized his appeal as “frivolous.” Davis v. King,

252 F.3d 1357 at *1 (5th Cir. 2001). Similarly, the D.C. Circuit affirmed a dismissal of his suit

“challenging the constitutionality of Congress’s perpetuation of the 100:1 sentencing disparity

between crack cocaine and powder cocaine.” Davis v. U.S. Congress, 101 Fed. Appx. 838 at *1

(D.C. Cir. 2004). The court held that habeas corpus was the exclusive remedy for a federal

prisoner bringing a claim that would have a “probabilistic impact” on the length of his

incarceration. Id. (citing Chatman-Bey v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988)).

       The current controversy began with the filing of a new Complaint against the Sentencing

Commission in August 2011 pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), and the Declaratory Judgment Act. See ECF No. 1.

The district court to which the case was initially assigned dismissed it sua sponte, holding that

under Bivens only money damages were available and that any action for a declaratory judgment



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should have been brought as a habeas claim. See ECF No. 5 (Mem. Op. Sept. 21, 2011). On

appeal, the D.C. Circuit reversed.

          The Court of Appeals, overruling its earlier precedent in light of subsequent Supreme

Court decisions, held that Davis could bring his equal-protection claim and was not restricted to

a habeas proceeding. See Davis, 716 F.3d at 666. In so doing, the Court cautioned that “we take

no position on whether dismissal for failure to state an equal protection claim might otherwise be

proper.” Id. The Court additionally reversed the district court’s conclusion that Davis’s Bivens

claim was “patently insubstantial,” though noting that it was “admittedly flawed . . . and possibly

fatally so.” Id. at 667.

          Upon remand to this Court, Davis filed a Second Amended Complaint. See ECF No. 20.

This new pleading abjured any reliance on Bivens and instead characterized the action thus:

“This is an action in mandamus to compel the United States Sentencing Commission (the

‘Commission’) to reinstate its 1995 amendments to the Sentencing Guidelines that would have

achieved a 1-to-1 sentencing ratio for crack and powder cocaine.” Sec. Am. Compl., ¶ 1. The

Commission has now renewed its Motion to Dismiss.

    II.      Legal Standard

          In evaluating Defendant’s Motion to Dismiss, the Court must “treat the complaint's

factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.

Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal

citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.

2005). The Court need not accept as true, however, “a legal conclusion couched as a factual

allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.



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Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.

265, 286 (1986)) (internal quotation marks omitted).

          Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” The notice-pleading rules are

“not meant to impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S.

336, 347 (2005), and Plaintiffs must thus be given every favorable inference that may be drawn

from their allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).

          Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570). Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes,

416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to

relief above the speculative level.” Id. at 556.

   III.      Analysis

          In moving to dismiss, the Commission offers three principal arguments: (1) Davis’s claim

is barred by the doctrine of res judicata, given the Court of Appeals’ dismissal of his 2002 suit;

(2) the discretionary nature of the agency action he seeks means mandamus is not applicable; and

(3) the equal-protection challenge to Public Law 104-38 fails to state a claim. As the Court

agrees that mandamus is not available here because no equal-protection violation has occurred, it

need not consider the first issue.




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       A. Mandamus

        “Mandamus is an extraordinary remedy ‘reserved for really extraordinary cases,’” In re

Bituminous Coal Operators’ Ass’n, Inc., 949 F.2d 1165, 1167 (D.C. Cir. 1991) (quoting Ex parte

Fahey, 332 U.S. 258, 260 (1947)), and it “is hardly ever granted.” In re Cheney, 406 F.3d 723,

729 (D.C. Cir. 2005) (en banc). “Mandamus is available only if: (1) the plaintiff has a clear right

to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy

available to plaintiff.” Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal quotation

marks and citation omitted). “[A] writ of mandamus will issue ‘only where the duty to be

performed is ministerial and the obligation to act peremptory, and clearly defined. The law must

not only authorize the demanded action, but require it; the duty must be clear and undisputable.’”

13th Reg’l Corp. v. U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980) (quoting United

States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931)); Lozada Colon v. U.S. Dep’t of

State, 170 F.3d 191 (D.C. Cir. 1999).

       In this case, Davis asks the Court to compel the Commission to reinstate its proposed

1995 amendments to the Guidelines. See Sec. Am. Compl., ¶ 1. He alleges that because

Congress’s disapproval of those amendments in Public Law 104-38 was unconstitutional on

equal-protection grounds, “[t]he Commission has a duty to give effect to these amendments in

the Sentencing Guidelines.” Id., ¶¶ 4-6. In other words, Davis is asking the Court to find that

the Commission has a clear duty to act, even in the face of express Congressional opposition.

Not surprisingly, he offers no authority for this novel proposition, nor can the Court find any.

       Although there are other significant impediments to the issuance of mandamus here, even

Plaintiff concurs that his only chance of success rests on an invalidation of Public Law 104-38.




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Indeed, his Opposition states: “[T]he sole claim that plaintiff Brian A. Davis asserts here is that

Public Law 104-38 is unconstitutional.” Opp. at 1. The Court thus turns to that question.

       B. Public Law 104-38

       While Plaintiff spends some time discussing mandamus as a remedy, the illegitimacy of

Public Law 104-38 is certainly where his Complaint focuses its fire: “Public Law 104-38 was

unconstitutional and invalid because it violated the Fifth Amendment equal protection rights of

petitioner . . . .” Sec. Am. Compl., ¶ 4; see also id., ¶ 74 (“Public Law 104-38 was

unconstitutional.”); id. at 16 (prayer for relief asks that Court recognize 1995 Guideline

Amendments as valid “because Public Law 104-38 was unconstitutional”). As just mentioned,

so do his briefs on the Motion. See also Sur-Reply at 1 (“This action challenges Congress’s

rejection, in Public Law 104-38, of the Commission’s 1995 amendments . . . .”).

       A quick review of the applicable legislation may prove helpful at this point. Under 28

U.S.C. § 994(p), the Sentencing Commission may “submit to Congress amendments to the

guidelines . . . [,which] shall take effect . . . [unless] the amendment is . . . disapproved by Act of

Congress.” That is precisely what happened here. In its 1995 proposed amendments, the

Commission recommended that Congress abrogate any difference between penalties mandated

for crack-cocaine and powder-cocaine offenses. See Notice of Submission to Congress of

Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25,074, 25,077 (May 10, 1995).

Congress rejected the proposal in Public Law 104-38, which is titled in part “An Act to

disapprove of amendments to the Federal Sentencing Guidelines relating to lowering of crack

sentences . . . .” It then states in Section 1, “In accordance with section 994(p) of title 28, United

States Code, amendments numbered 5 and 18 of the ‘Amendments to the Sentencing Guidelines,

Policy Statements, and Official Commentary,’ submitted by the United States Sentencing



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Commission to Congress on May 1, 1995, are hereby disapproved and shall not take effect.”

The Act, nonetheless, also recommends that the Sentencing Commission continue to submit

recommendations to Congress about cocaine sentencing, subject to certain provisions, including

that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed

the sentence imposed for trafficking in a like quantity of powder cocaine.” Id., § 2(a)(1)(A).

       Was Congress’s rejection unconstitutional? As background, the D.C. Circuit has

explained that the original 100:1 powder-crack ratio was not subject to strict scrutiny under the

equal-protection clause because Congress had no discriminatory purpose in enacting it. See

United States v. Johnson, 40 F.3d 436, 439 (D.C. Cir. 1994). “It is not enough that a law impacts

members of different races differently in effect – it must have been passed at least in part with

that purpose.” Id. The Court of Appeals, furthermore, previously held that “the disparate

treatment of crack and powder cocaine easily survives . . . rational-basis review.” United States

v. Thompson, 27 F.3d 671, 678 (D.C. Cir. 1994). Plaintiff is thus left with the claim that the

rejection of the 1995 amendments in Public Law 104-38 was by itself unconstitutional.

       The D.C. Circuit, however, has already decided otherwise. In United States v. Pickett,

475 F.3d 1347 (D.C. Cir. 2007), the Court held:

               Pickett also contended, as he does on appeal, that Congress
               engaged in unconstitutional discrimination in passing the
               “Disapproval Act,” Pub. L. No. 104-38, § 1, 109 Stat. 334 (Oct.
               30, 1995), which rejected the Sentencing Commission's proposed
               amendment to eliminate the crack/powder cocaine disparity. His
               arguments are similar to those the defendant made in United States
               v. Johnson, 40 F.3d 436 (D.C. Cir. 1994), and we reject them
               again. Now, as then, “scattered pieces of legislative history are
               quite inadequate to serve to attribute a discriminatory purpose to
               the Congress.” Id. at 440. Just as Congress had race-neutral
               reasons for adopting a 100-to-1 ratio in the Anti-Drug Abuse Act
               of 1986, Pub. L. No. 99-570, 100 Stat. 3207, see Johnson, 40 F.3d
               at 441, it had race-neutral reasons for declining to adopt the 1-to-1
               ratio the Sentencing Commission proposed.

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Id. at 1348 n.1. Similarly, United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997), addressed

the equal-protection claim that minorities are “disproportionately impacted by the higher

mandatory minimum sentences applied for crimes involving crack cocaine than for crimes

involving powder cocaine.” Id. at 1548. In rejecting the appellant’s argument, the Court of

Appeals explained that “[t]he opinions of the Sentencing Commission [presumably in its

recommendations for a 1:1 ratio] and scientific journals do not provide the requisite proof that

Congress was motivated by any impermissible considerations. Moreover, this circuit recently

reaffirmed its conclusion that there is a race-neutral explanation for the sentencing disparity.” Id.

(citations omitted).

       Circuit courts elsewhere have also found no constitutional violation in Congress’s refusal

to enact the 1995 proposed amendments. See, e.g., United States v. Mormon, 105 F.3d 656, at

*3-4 (5th Cir. 1996) (rejecting argument that “Congress’ failure to adopt the Commission’s

recommendations evinces Congress’ intent to discriminate against African-Americans”); United

States v. Teague, 93 F.3d 81, 85 (2d Cir. 1996) (no evidence that Congressional rejection of

amendments was “at least in part because of, not merely in spite of, its adverse effects upon

blacks”; nor was Congress’s decision unconstitutional for lack of rational basis) (citation and

internal quotation marks omitted); United States v. Lewis, 90 F.3d 302, 305 (8th Cir. 1996)

(noting in relation to Pub. L. 104-38 that “[d]isparate impact is not enough to make a law

unconstitutional under the equal-protection component of the Due Process Clause of the Fifth

Amendment. Discriminatory purpose is required, and no such purpose has been proved.”);

United States v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996) (“We do not agree that the

Commission's report, or Congress's decision to reject it, affects the precedential value of our

ruling that Congress had a rational basis for the 100:1 ratio.”).

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          The only “authority” that Plaintiff can muster is not really an authority at all. In United

States v. Then, 56 F.3d 464 (2d Cir. 1995), the Second Circuit rejected an equal-protection claim

based on the powder-crack disparity. At the time of the issuing of its opinion, the Commission

had recommended the 1:1 ratio, but Congress had not yet passed Public Law 104-38. Judge

Guido Calabresi in a concurrence stated that if Congress were to invalidate the recommendation

(as it ultimately did), “subsequent equal protection challenges based on claims of discriminatory

purpose might well lie.” Id. at 468 (J. Calabresi, concurring). This notion, however, was

expressly disavowed by the majority: “[W]e decline to accept the invitation by the concurrence

to notify Congress that if it does not adopt the recommendation of the Sentencing Commission,

this Court in the future might invalidate the sentencing ratio as unconstitutional.” Id. at 466.

Indeed, in Teague the Second Circuit itself failed to fulfill Judge Calabresi’s prophecy after

Congress did reject the 1995 amendments. See 93 F.3d at 85.

          Because Congress’s refusal to enact the Commission’s proposed 1:1 ratio did not

constitute an unconstitutional violation of equal protection, Plaintiff is not entitled to the relief he

seeks.

    IV.      Conclusion

          For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss. A

separate Order consistent with this Opinion will be issued this day.

                                                        /s/ James E. Boasberg
                                                        JAMES E. BOASBERG
                                                        United States District Judge
Date: April 11, 2014




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