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In United States v. Brown, Case No. 07-5465, the Sixth Circuit amended its prior opinion after the government moved for rehearing. Defendant Brown had pled guilty to possessing both crack and powder cocaine. In the original opinion, the panel remanded Brown for resentencing to allow the district court to resentence Brown with the benefit of the November 1, 2007 Amendments to the Sentencing Guidelines regarding crack cocaine calculations.

The government petitioned for rehearing and argued remand was unnecessary because remand would not lower Brown?s sentencing range. In response, the Sixth Circuit issued an amended opinion, addressing the process by which offenses involving crack cocaine and another drug require conversion to marijuana to calculate the offense level. The panel found the conversion table included in the 2007 Amendments generally provides the intended two-level decrease in multiple drug situations, but, sometimes, inexplicably results in a greater offense level, even in cases involving inconsequential amounts of a second drug.

In Brown?s case, under the 2007 Amendments, his offense level for possessing 15.2 grams would have been 24. However, when crack cocaine is converted to marijuana under the equivalency table accompanying the 2007 Amendments, Brown?s resulting offense level would have been 26 ? exactly what he would have received under the prior guidelines ? even before adding the converted amount of the powder cocaine. This result would have denied Brown the benefit of the 2007 Amendments, and struck the panel as particularly arbitrary in light of the small amount of powder cocaine he possessed (which of course triggered the conversion in the first place) and inconsistent with both the substance and the policy of the 2007 Amendments.

The panel ultimately held "the marijuana equivalency table used in determining the offense level for crimes involving crack and another drug are not controlling for purposes of 18 U.S.C. § 3582(c)." The panel also noted the 2007 Amendments create fact intensive anomalies that are best considered on an individualized basis by the sentencing court.

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