I found this third-hand report on what position the DOJ is taking in pending crack cocaine prosecutions in Prof. Berman's Sentencing Blog today from what is believed to be a letter from a federal prosecutor to defense counsel:
United States Attorney’s Offices were provided with new guidance concerning sentencing for crack cocaine offenses. This guidance provides that United States Attorney’s Offices should inform courts that the Department of Justice believes Congress and the United States Sentencing Commission should eliminate the crack/powder cocaine disparity. Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, the Department of Justice recognizes courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a).
The Department of Justice’s position with respect to variance motions in crack cocaine cases is to be determined on a case-by-case basis. The Department of Justice will continue to charge provable threshold quantities of crack cocaine triggering mandatory minimums.
The part I emphasized might be helpful to stress to prosecutors and courts in our district. --John