In particular, should the base offense levels for crack cocaine again be set so that the statutory minimum penalties correspond to levels 26 and 32, using the new drug quantities established by the Act (the "level 26 option")? Or should the base offense levels for crack cocaine continue to be set so that the statutory minimum penalties correspond to levels 24 and 30, using the new drug quantities established by the Act (the "level 24 option")?

Here's Senator Durbin's letter explaining the problem and urging the Commission to set the levels at 24 and 30 instead of 26 and 32. Here is the Federal Defender's letter explaining the problems. Hopefully the Commission will fix this by the time the permanent amendment is scheduled to go into effect in May, 2011.

The Commission explained in its request for comments:

Until 2007, the drug quantity thresholds for ... offenses involving 5 grams or more of crack cocaine were assigned a base offense level (level 26) corresponding to a sentencing guideline range of 63 to 78 months for a defendant in Criminal History Category I (a guideline range that exceeds the 5-year statutory minimum for such offenses by at least three months).

Similarly, offenses involving 50 grams or more of crack cocaine were assigned a base offense level (level 32) corresponding to a sentencing guideline range of 121 to 151 months for a defendant in Criminal History Category I (a guideline range that exceeds the 10-year statutory minimum for such offenses by at least 1 month).

In Amendment 706, the Commission amended the Drug Quantity Table for crack cocaine, reducing the base offense levels for these quantities to level 24 and level 30, respectively, and extrapolating upward and downward for other crack cocaine quantities. See USSG App. C, Amendment 706 (effective November 1, 2007). Base offense levels 24 and 30 each correspond to a guideline range for a defendant in Criminal History Category I that includes the statutory mandatory minimum penalty. For base offense level 24, the guideline range is 51-63 months; for base offense level 30, the guideline range is 97-121 months.

And now they are back up to 26 and 32. Again, see the Federal Defender's letter explaining the unfairness.

On Double counting: The commission added (as the new law requires)an enhancement of two levels for bribing a cop or agent to facilitate the offense. How is that different from the existing obstruction of justice enhancement?

There's also a new two level enhancement if "the defendant maintained an establishment for the manufacture or distribution of a controlled substance." Will that be applied to defendants who merely distribute at their home? To defendants who book a hotel room to do the deal?

As to those already bumped for an organizer or manager role, now they will get another two level increase if they "used impulse, fear, friendship, affection, or some combination thereof to involve such person in the offense" or distributed to "a person over the age of 64 years." Why are people over 64 more vulnerable than people who are 63 or 62?

I wrote a few times the Fair Sentencing Act was fraught with danger and not the right bill to pass -- both because of the 18:1 ratio and the multiple enhancements. All we needed was a bill that eliminated the words "cocaine base" from the statute. That would have made the ratios 1:1 and left the rest of the guidelines alone. Now we have a mess on our hands.

And memo to Senator Durbin who co-authored the compromise bill with Sen. Jeff Sessions: See what you get when you capitulate with Republicans? This is your bill and they didn't even accept your recommendation as to how to implement it. This should have been foreseen and taken care of in the bill itself. Instead, you were more concerned with sending the message, "If Jeff Sessions and Dick Durbin can come to an agreement, bipartisanship is not dead."