# United States v. Errol Eugene Washington > Court of Appeals for the Sixth Circuit · December 4, 1997 · 127 F.3d 510 URL: https://www.frixlaw.com/law-library/cases/9843181 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Errol Eugene WASHINGTON, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 4, 1997 - **Citations:** 127 F.3d 510 - **Precedential status:** Published - **Opinion:** Concurring in part by Jones - **Judges:** Jones, Suhrheinrich, Siler - **Cited by:** 98 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843181 ## How later opinions describe it (automated extraction) - holding that an indictment was not duplicitous when the government offered proof of two separate drug transactions involving each defendant on the same day and either transaction could have provided the predicate for a conviction for possession with intent to distribute crack … - holding that a reasonable juror could infer that a firearm in the console of the defendant’s car during a drug transaction made in the vehicle was carried “during and in relation to” the offense - holding that issues *774 raised for the first time in a reply brief are not reviewable - holding that issuesraised for the first time in a reply brief are not reviewable - holding that one panel cannot overrule a prior panel's published decision ## Opinion text JONES, Circuit Judge, concurring in part and dissenting in part. I join the opinion of the court in section I and sections 11(A), 11(B), and 11(C). However I write separately because I once again feel obligated to express my concerns regarding the 100:1 sentencing ratio for crack and powdered cocaine (“100:1 ratio”) that still exists in both statutory law and the Sentencing Guidelines. I recognize that this court has rejected a variety of constitutional challenges to the 100:1 ratio, but I still believe that we as judges should “no longer remain wedded to that which experience shows is neither rational nor fair.” United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996) (Jones, J., concurring). The Sentencing Commission has conclusively addressed the issue of whether there is justification for harsher penalties for crack than for powder cocaine, a policy that in practice has treated African-Americans more severely than whites, and has answered this question in the negative. The Sentencing Commission’s conclusions have recently been adopted by the President, the Attorney General and General Barry McCaffrey, Director of National Drug Policy. 1 In light of these recent developments, of which judicial notice should be taken, I must again emphasize that because the Sentencing Commission is analogous to a federal agency it is entitled to the deference accorded the same. It is well settled that an agency’s interpretation of its own regulations receives “controlling weight” unless it would violate the Constitution or a federal statute, or is inconsistent with the regulation. See Stinson v. United States, 508 U.S. 36, 45 , 113 S.Ct. 1913, 1919 , 123 L.Ed.2d 598 (1993) (“[pjrovided an agency’s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 , 65 S.Ct. 1215, 1217 , 89 L.Ed. 1700 (1945)). Thus, the Sentencing Commission’s complete rejection of the 100:1 ratio is, in this instance, entitled to “controlling weight.” As I noted in United States v. Gaines, this remains clearly consistent with the Supreme Court’s long history of upholding an agency’s interpretation of its own rules. See, United States v. Gaines, 122 F.3d 324, 335 (6th Cir.1997). I regret that the majority feels it is necessary to depart from this basic principle of administrative law. Moreover, as proof of the racial unfairness of the present law continues to mount, the apparent ease by which policy makers, and even the judicial system, are able to disre *519 gard the racial discrimination perpetuated by this law and now recognized by the Sentencing Commission, the Attorney General and the President, is indeed disturbing. In 1996, for example, African-Americans made up 85.8% of crack cocaine offenders, while a mere 4.8% of white federal offenders were prosecuted for crack cocaine. United States Sentencing Commission, 1996 Sourcebook of Federal Sentencing Siatistics 47 (1997). This racial disparity will not disappear simply by ignoring it; rather, the recommendations of the Sentencing Commission should be heeded by those entrusted with the administration of our laws. I urge the entire court to hear this case en banc and accord the requisite deference to the conclusions of the Sentencing Commission found in the Cocaine Report. I must again reiterate, that I am not calling for a reduction in the stiffness of drug crimes, but only seek equality in sentencing. I recognize that drugs continue to plague our society and fully support the efforts of law enforcement to reduce its use. Nevertheless, I cannot ignore the fact that, as the Sentencing Guidelines currently exist, the sentences handed down by courts of “justice” are not just. “Blind adherence to rules that have proven ineffective, meaningless and unjust, serves no useful purpose.” United States v. Gaines, 122 F.3d 324 . . On July 3, 1997, Attorney General Janet Reno and General Barry McCaffrey, Director of National Drug Policy, after reviewing the Sentencing Commission's Cocaine Report, adopted its recommendations and forwarded their conclusions to the President. See N.Y. Times, July 22, 1997 at Al. In doing so, they cautioned that "[w]e cannot turn a blind eye ... to the corrosive effect this [law] has had on ... the effective administration of justice." Id. On July 22, 1997, the President announced his acceptance of their conclusions. See L.A. Times, July 23, 1997 at A24. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843181. Public record. Not legal advice.