United States v. Thomas McGowan ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-14932 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ May 6, 2008
THOMAS K. KAHN
D.C. Docket No. 04-00156-CR-T-30-EAJ CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS MCGOWAN, a.k.a. Shank,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 6, 2008)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
This case is before us on remand from the Supreme Court for
reconsideration of our review of Thomas McGowan’s sentence in light of
Kimbrough v. United States, 522 U.S. ___, 128 S. Ct. 558 (2007). McGowan v.
United States, ___ U.S. ___, 128 S. Ct. 859 (2008). We previously affirmed
McGowan’s sentence for possession with intent to distribute five grams or more of
cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii).
United States v. McGowan, 211 Fed. Appx. 886 (11th Cir. 2006). We reconsider
our opinion only to the extent that it rejected McGowan’s attacks, at sentencing,
on the disparity in the Sentencing Guidelines of the treatment of crack and powder
cocaine offenses (“the crack/powder disparity”).
I. BACKGROUND
McGowan pleaded guilty. The district court imposed a sentence of 188
months, the lowest sentence available under the Guidelines, and McGowan
appealed. We vacated McGowan’s sentence and remanded for resentencing in
light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because the
district court had treated the Guidelines as mandatory. United States v. McGowan,
134 Fed. Appx. 359, 362-63 (11th Cir. 2005). Following a resentencing hearing,
the district court imposed a prison sentence of 180 months.
McGowan appealed this sentence. We affirmed, holding that the district
judge properly stated the reasons for his sentence pursuant to 18 U.S.C. §
3553(c)(2), and that the sentence was reasonable. United States v. McGowan, 211
2
Fed. Appx. 886 (11th Cir. 2006). We expressly rejected McGowan’s arguments
against the wisdom of the Guidelines’ crack/powder disparity: “McGowan’s
crack-to-cocaine and career offender arguments are attacks on the Guidelines that
we have previously rejected.” Id. at 889 n.2 (citing United States v. Williams, 456
F.3d 1353, 1367 (11th Cir. 2006)). The Supreme Court subsequently vacated the
judgment and remanded this case to us for further consideration in light of
Kimbrough, which held that a district court does not abuse its discretion if it
disagrees, as a matter of policy, with the Guidelines’ crack/powder disparity.
McGowan v. United States, ___ U.S. ___, 128 S. Ct. 859 (2008).
II. DISCUSSION
A. The Resentencing Hearing
Prior to his resentencing hearing, McGowan submitted a memorandum to
the district court, quoting extensively from a United States Sentencing
Commission report (“the Report”) identifying the crack/powder disparity as
adversely impacting African-American offenders. (R.44 at 7.) McGowan argued
that both the career offender guideline and the crack/powder disparity led to a
Guideline calculation that was significantly greater than necessary to serve the
purposes of sentencing. He asked the court to sentence him based on a 20-to-1
ratio instead of 100-to-1, which would have produced a Guideline range of 92-115
3
months. At the resentencing hearing, McGowan’s counsel explicitly argued that
the crack/powder disparity was unreasonable:
I think the Commission’s report is significant in light of Booker,
because as I have argued in my memorandum, Booker instructs the
courts to impose sentences that are reasonable, not in light of the
guidelines, but in light of 3553(a), of which there are seven factors,
the guidelines being only one of the seven.
So, the Sentencing Commission itself has recognized that there are
problems with the career offender guideline, both in its application,
disproportionately impacting African American offenders . . . .
The Commission has also repeatedly criticized the 100-to-1 crack-to-
powder sentencing disparity between crack cocaine and powder
cocaine, saying that the pharmacological differences between the two
drugs just don’t justify that jump.
Based on those two points, which I took from the Sentencing
Commission, I proposed a 20-to-1 ratio for Mr. McGowan of what his
sentence might have been if he had sold powder cocaine instead of
crack cocaine . . . .
(R.52 at 5-6.) The Government responded to these arguments, implying that the
court could not reduce a sentence based on a policy disagreement with the
Guidelines: “As to [McGowan’s counsel’s] arguments, I believe some of those
have been – the Sentencing Commission has voiced those to Congress, and that
has not been changed.” (Id. at 9.) The sentencing judge did not address
McGowan’s crack/powder disparity argument.
4
At the time of McGowan’s resentencing, the district court had no direct,
post-Booker precedent from this Circuit addressing its discretion to reduce a
sentence based on a policy disagreement with the crack/powder disparity. We had
held, prior to Booker, that a reduction of a sentence on this basis would have
constituted an abuse of discretion. See United States v. Hanna, 153 F.3d 1286
(11th Cir. 1998); United States v. King, 972 F.2d 1259 (11th Cir. 1992). After
McGowan’s resentencing, we reaffirmed Hanna and King: “The 100-to-1 drug
quantity ratio not only reflects Congress’s policy decision that crack offenders
should be punished more severely, but also reflects its choice as to how much
more severe the punishment should be. Federal courts are not at liberty to supplant
this policy decision.” United States v. Williams, 456 F.3d 1353, 1367 (11th Cir.
2006).
B. Kimbrough v. United States
Kimbrough overruled Williams: “A district judge must include the
Guidelines range in the array of factors warranting consideration. The judge may
determine, however, that, in the particular case, a within-Guidelines sentence is
‘greater than necessary’ to serve the objectives of sentencing. In making that
determination, the judge may consider the disparity between the Guidelines’
5
treatment of crack and powder cocaine offenses.” Kimbrough, ___ U.S. at ___,
128 S. Ct. at 564 (citation omitted).
In light of Kimbrough, we have vacated sentences where the sentencing
judge had not been permitted to consider the defendants’ arguments that the
crack/powder disparity was bad policy.1 We have affirmed sentences where the
crack/powder disparity issue was raised for the first time on appeal,2 and when the
sentencing judge stated that the Guidelines were “too high” and reduced the
sentence accordingly.3
Other circuits have addressed Kimbrough. In United States v. Trotter, 518
F.3d 773 (10th Cir. 2008), the defendant argued at sentencing that the district
court was free to consider the crack/powder disparity. The Government responded
that the court could not address these arguments, and the district court did not
address them. The Tenth Circuit remanded the sentence for reconsideration in light
of Kimbrough: “We are unable to tell from the sentencing transcript whether the
1
United States v. Tolbert, No. 07-14925, 2008 WL 879981 (11th Cir. Apr. 3, 2008); United
States v. Dawson, No. 06-16372, 2008 WL 194914 (11th Cir. Jan. 24, 2008); United States v.
Stratton, 519 F.3d 1305 (11th Cir. 2008).
2
United States v. Berggren, No. 07-12796, 2008 WL 565095, at *2 (11th Cir. Mar. 4, 2008)
(“Nothing in either the decision of the Supreme Court in Kimbrough or in our precedents obliged
the district court to consider the powder-crack disparity.”)
3
United States v. White, No. 07-11260, 2008 WL 747616 (11th Cir. Mar. 21, 2008).
6
district court’s rejection of Defendant’s argument was based on its conclusion that
the crack/powder disparity did not warrant a below-Guidelines sentence in
Defendant’s particular case—a permissible conclusion under Kimbrough—or on
its acceptance of the Government’s argument that the disparity could not
constitute a valid reason for varying from the Guidelines in any case—a position
that has been overruled by Kimbrough.” Id. at 774.
Here, it is appropriate to remand to the district court for reconsideration in
light of Kimbrough. We are left in doubt as to whether the district court
understood that it would not have abused its discretion if it had reduced
McGowan’s sentence based on a policy disagreement with the crack/powder
disparity. See United States v. Regalado, 518 F.3d 143, 147 (2nd Cir. 2008)
(“Since the district court was, quite understandably, unaware of (or at least
insecure as to) its discretion to consider that the 100-to-1 ratio might result in a
sentence greater than necessary, there was an unacceptable likelihood of error.”);
United States v. Bush, No. 07-1307, 2008 WL 1745342, *1 (7th Cir. Apr. 17,
2008) (“we remand for resentencing because it is unclear from the record whether
the district court would have imposed a lesser sentence had it not believed it was
constrained by the 100:1 ratio.”); United States v. Roberson, 517 F.3d 990, 995
(8th Cir. 2008) (“When a district court does not consider an argument because it is
7
unaware of its power to do so, however, a remand is appropriate. . . . It is unclear
whether the district court declined to use its discretion in the requested manner
because of then-current Eighth Circuit precedent or because it did not find that the
disparity warranted any variance from the guidelines.”). The Government argues
that the district court did consider, and reject, McGowan’s argument regarding the
crack/powder disparity. But there is no indication in the record that the court
considered this argument, or that it believed it lawfully could. In fact, if the district
court had reduced McGowan’s sentence based on the unfairness of the
crack/powder disparity, we would have reversed in light of Williams.4 We cannot
presume that the district court, anticipating Kimbrough, understood that it would
not have abused its discretion if it had reduced McGowan’s sentence because it
viewed the crack/powder disparity to be unfair. See United States v. Taylor, No.
06-4123, 2008 WL 782739, *2 (7th Cir. Mar. 26, 2008) (“[T]he fact that a
judge—the judge in this case for example—does not say anything about the ratio
cannot be taken to mean that he (in this case she) thinks it is fine.”); United States
v. Padilla, No. 06-4370, 2008 WL 833994, *7 (7th Cir. Mar. 31, 2008) (“The
district court did not address his agreement or disagreement with the 100:1 ratio,
4
We affirmed McGowan’s sentence after Williams was decided, but before Kimbrough
overruled it.
8
making no comments about whether he thought he could consider the disparity in
rendering a sentence. But we need not infer from his silence that the district court
agreed with the 100:1 ratio.”).
We remand to the district court to give it an opportunity to indicate whether
it would have imposed a different sentence if it had understood that it had
discretion to disagree with the Guidelines policy expressed in the crack/powder
disparity. If the district court concludes that consideration of the crack/powder
disparity would make no difference in McGowan’s sentence, it need not conduct a
resentencing hearing, and may simply reenter the sentence previously imposed.
The sentence is VACATED and the case is REMANDED to the sentencing
court for reconsideration consistent with this opinion.
9