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The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.28 The commission presented its second report in October 2011.29 A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report.30 The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges.31 After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.32 In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.33

The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:

At one time, possession with intent to distribute crack cocaine (cocaine base) was punished 100 times more severely than possession with intent to distribute cocaine in powdered form.294 Defendants claimed the distinction had a racially disparate impact. The claim was almost universally rejected.295

P.L. 111-220, § 2(a), 124 Stat. 2372 (2010). Prior to enactment, 5000 grams of powder cocaine or 50 grams of crack cocaine triggered the Controlled Substances Act's 10-year mandatory minimum, 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii) (2006 ed.), and 500 grams of powder or 5 grams of crack triggered its 5-year mandatory minimum. Id. §§ 841(b)(1)(B)(ii) and (iii) (2006 ed.). The FSA established a 5000 grams to 280 gram ratio for the 10-year mandatory minimum, 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), and a 500 grams to 28 gram ratio for the 5-year mandatory minimum. Id. §§ 841(b)(1)(B)(ii) and (iii).

United States v. Bobadilla-Pagan, 747 F.3d 26, 32 (1st Cir. 2014) ("Nothing in the statute limits distribution to sale; rather it is well accepted that drugs may be distributed by giving them away for free.").

United States v. Anderson, 747 F.3d 51, 73-4 (2d Cir. 2014) (internal citations omitted). See also United States v. Stallworth, 656 F.3d 721, 728 (7th Cir. 2011); United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011).

Id. § 924(c). Section 924(c) has been the subject of repeated Supreme Court litigation and regular congressional amendment since its inception in 1968. However, the crime of violence prong of the section, rather than the drug trafficking prong, has been the scene of most of the activity. See United States v. O'Brien, 560 U.S. 218, 221 (2010) ("The Court must interpret, once again, §924(c) of Title 18 of the United States Code"); Dean v. United States, 137 S. Ct. 1170 (2017); Rosemond v. United States, 134 S. Ct. 1240 (2014); Alleyne v. United States, 133 S. Ct. 2151 (2013); United States v. Abbott, 562 U.S.18 (2010); Dean v. United States, 556 U.S. 568 (2009); Watson v. United States, 552 U.S. 74 (2007); Harris v. United States, 536 U.S. 545 (2002); Castillo v. United States, 530 U.S. 120 (2000); Mascarello v. United States, 524 U.S. 125 (1998); United States v. Gonzales, 520 U.S. 1 (1997); Bailey v. United States, 516 U.S. 137 (1995); Smith v. United States, 508 U.S. 223 (1993); Deal v. United States, 508 U.S. 129 (1993); P.L. 90-618, 82 Stat. 1223 (1968), 18 U.S.C. § 924(c)(1970 ed.); P.L. 91-644, §13, 84 Stat. 1889 (1971), 18 U.S.C. § 924(c) (1976 ed.); P.L. §1005, 98 Stat. 2138 (1984), 18 U.S.C. § 924(c) (1982 ed.) (Supp. II); P.L. 99-308, 100 Stat. 457 (1986), 18 U.S.C. § 924(c) (1982 ed.) (Supp. IV); P.L. 100-690, §6460, 102 Stat. 4373 (1988), 18 U.S.C. § 924(c) (1988 ed.); P.L. 101-647, §1101,104 Stat. 4829 (1990), 18 U.S.C. § 924(c) (1988 ed.) (Supp. II); P.L. 105-386, §1, 112 Stat. 3469 (1998), 18 U.S.C. § 924(c) (2000 ed.); P.L. 109-92, §6(b), 119 Stat. 2102 (2005), 18 U.S.C. § 924(c)(2000 ed.) (Supp. V).

United States v. King, 751 F.3d 1268,1274 (11th Cir. 2014); see also Lawson, 810 F.3d at 1039-40; United States v. Sherer, 770 F.3d 407, 412 (6th Cir. 2014); United States v. Kamahele, 748 F.3d 984, 1010 (10th Cir. 2014).

United States v. Burnett, 773 F.3d 122, 134 (3d Cir. 2014) ("Section 924(c) has two separate prongs, the violation of either standing alone is sufficient to support a conviction under the statute: (1) 'us[ing] or carry[ing]' a firearm 'during and in relation to' the underlying offense; or (2) 'possess[ing] a firearm 'in furtherance' of the underlying offense.... By making this distinction, Congress may well have intended 'in furtherance' to impose a more stringent standard than 'in relation to.'").

United States v. Bobadilla-Pagan, 747 F.3d 26, 35 (1st Cir. 2014); see also United States v. Ramos, 852 F.3d 747, 753 (8th Cir. 2017); United States v. Bailey, 840 F.3d 99, 112 (3d Cir. 2016); United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011).

United States v. Taylor, 800 F.3d 701, 709(6th Cir. 2015); see also United States v. Fernandez-Santos, 856 F.3d 10, 20 (1st Cir. 2017); United States v. Webster, 775 F.3d 897, 905-906 (7th Cir. 2015); United States v. Booker, 774 F.3d 928, 929-31 (8th Cir. 2014).

United States v. Green, 835 F.3d 844, 854 (8th Cir. 2016); United States v. Ray, 803 F.3d 244, 263 (6th Cir. 20150; United States v. Pineda, 770 F.3d 313, 317 (4th Cir. 2014); United States v. Renteria, 720 F.3d 1245, 1255 (10th Cir. 2013); United States v. Eller, 670 F.3d 762, 765 (7th Cir. 2012); United States v. Pena, 586 F.3d 105, 113 (1st Cir. 2009); United States v. London, 568 F.3d 553, 559 (5th Cir. 2009); United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009).

Bailey v. United States, 516 U.S. 137, 143 (1995); United States v. Isnadin, 742 F.3d 1278, 1307 (11th Cir. 2014); United States v. Haynes, 582 F.3d 686, 704 (7th Cir. 2009); United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004).

United States v. Burnett, 773 F.3d 122, 134 (3d Cir. 2014); cf. United States v. Barnes, 822 F.3d 914, 918 (6th Cir. 2016) (noting that "possession in furtherance" or "using or carrying during and in relation to" are two distinct crimes).

Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) ("Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt"). Alleyne overruled Harris, which had held that brandishing was a sentencing factor that might be entrusted to the judge to find by a preponderance of the evidence (Harris v. United States, 535 U.S. 545, 556 (2002)); United States v. Cardena, 842 F.3d 959, 1000-1001 (7th Cir. 2016); United States v. Lewis, 802 F3.d 449, 454 (3d Cir. 2015); United States v. Hackett, 762 F.3d 493, 502 (6th Cir. 2014); United States v. King, 751 F.3d 1268, 1278-280 (11th Cir. 2014). The fact of a second or subsequent conviction, however, remains a sentencing factor, because the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), to that effect has not been withdrawn, King, 751 F.3d at 1280 (citing Alleyne v. United States, 133 S. Ct. at 2160 n.1); Cardena, 842 F.3d at 1000.

18 U.S.C. § 924(c)(4) ("For purposes of this subsection, the term 'brandish' means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person"); Cardena, 842 F.3d at 1001; United States v. Gonzales, 841 F.3d 339, 353 (5th Cir. 2016); United States v. Carter, 560 F.3d 1107, 1114 (9th Cir. 2009); United States v. Payne, 763 F.3d 1301, 1304-1305 (11th Cir. 2014).

Rosemond v. United States, 134 S. Ct. 1240, 1247 (2014)("Rosemond therefore could assist in § 924(c)'s violation by facilitating either the drug transaction or the firearms use (or of course both.").

United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014) (citing United States v. Bynum, 669 F.3d 880, 887 (8th Cir. 2012); United States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir. 2007); and United States v. McKinney, 450 F.3d 39, 44 (1st Cir. 2006)).

United States v. Syms, 846 F.3d 230, 235 (7th Cir. 2017); United States v. Claxton, 766 F.3d 280, 305 (3d Cir. 2014); United States v. Schmitt, 765 F.3d 841, 842 (8th Cir. 2014); United States v. Rodriguez, 676 F.3d 183, 191 (D.C. Cir. 2012); United States v. Aidoo, 670 F.3d 600, 606-607 (4th Cir. 2012); United States v. Pena, 598 F.3d 289, 292 (6th Cir. 2010); United States v. Larios, 593 F.3d 82, 89 (1st Cir. 2010); United States v. Altamirano-Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007); United States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir. 2007).

United States v. Milkintas, 470 F.3d. 1339, 1345 (11th Cir. 2006) (citing United States v. O'Dell, 247 F.3d 655, 675 (6th Cir. 2001); United States v. Ortiz, 136 F.3d 882, 884 (2d Cir. 1997); United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996); and United States v. Ivester, 75 F.3d 182, 185-86 (4th Cir. 1996)); United States v. Cruz-Romero, 848 F.3d 399, 402 (5th Cir. 2017) (plea bargain fact stipulation standing alone is insufficient); United States v. Claxton, 766 F.3d 280, 306 (3d Cir. 2014) ("The mere fact that the investigators did not ask the 'right' questions for purposes of Claxton's safety valve claim did not relieve him of his burden under the safety valve provision."). 2b1af7f3a8