United States v. Gipson, Ronald , 145 F. App'x 175 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2005
Decided August 10, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1407
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 04-CR-30061-01-WDS
RONALD GIPSON,
Defendant-Appellant. William D. Stiehl,
Judge.
ORDER
Without the benefit of a plea agreement, Ronald Gipson pleaded guilty to one
count of possession of more than five grams of crack cocaine, 21 U.S.C. § 844(a), and
was sentenced within the guideline range to 108 months’ imprisonment. On appeal
Gipson renews his argument that a sentence based upon the guidelines is
unreasonable because the guidelines punish crack cocaine offenses too severely
relative to offenses involving powder cocaine. We affirm.
After fleeing from police officers, Gipson was arrested and later charged with
possession of 6.2 grams of crack cocaine. During that chase, a pursuing officer
dislocated his shoulder. In August 2004, Gipson pleaded guilty in an open plea to
the charge in the indictment. For the offense, a probation officer recommended in
Gipson’s presentence investigation report a guideline range of 92 to 115 months.
This range was based on a total of offense level of 23, which took into account the
No. 05-1407 Page 2
6.2 grams of crack cocaine found in Gipson’s possession and his acceptance of
responsibility, and his criminal history category of VI.
In February 2005, at his sentencing hearing, Gipson argued for a sentence
below the guideline range, contending that the guidelines created an unreasonably
severe disparity in punishment for crack cocaine versus cocaine powder. The
district court rejected Gipson’s argument after contemplating that Congress has
thus far chosen to maintain the sentencing differential between crack cocaine and
powder cocaine. Relying on the guidelines as advisory and the factors listed in 18
U.S.C. § 3553(a), the district court sentenced Gipson in the middle of the guideline
range. In imposing the sentence, the court took into account Gipson’s flight during
the arrest and the resulting injury to one of the officers, the dangerous effects of the
crime on society, and Gipson’s extensive criminal history.
Gipson’s sole argument on appeal is that the penalties under the guidelines
for crack cocaine as contrasted with powder are “grossly disproportionate,” and
therefore his sentence is unreasonable within the meaning of United States v.
Booker, 125 S. Ct. 738, 765-66 (2005). According to Gipson, dealing crack and
powder cocaine constitute similar conduct; by punishing crack cocaine with a
proportionately higher penalty than cocaine in its powder form, the district court
failed to consider “the need to avoid unwarranted sentence disparities” among
similarly situated defendants, as enumerated in 18 U.S.C. § 3553(a)(6). In further
support of this argument, Gipson points to United States v. Smith, 359 F. Supp. 2d
771, 777 (E.D. Wis. 2005), appeal dismissed, No. 05-1910 (7th Cir. May 18, 2005),
where the district court opined that the sentencing guidelines, which punish one
gram of crack the same as 100 grams of powder cocaine, “lack[ ] persuasive
penological or scientific justification.” And, Gipson adds, the sentencing differential
has a disparate impact on African Americans.
The question in the present case, however, is not whether after Booker a
sentencing court may use the differential as a reason to impose a shorter sentence
than the one recommended by the guidelines, but rather whether it is error for a
court not to have taken the differential into account. Given the fact that we have
routinely upheld the differential against constitutional attack, including equal
protection claims, see, e.g., United States v. Westbrook, 125 F.3d 996, 1010 (7th
Cir. 1997) (“In light of the fact that every constitutional challenge to the penalty
differential . . . has failed, this argument cannot succeed.”); United States v. Booker,
73 F.3d 706, 710 (7th Cir. 1996) (rejecting argument that district court should have
departed downward because higher penalties imposed on crack cocaine have
disparate impact on African Americans), and, under the pre-Booker guideline
system, rejected wholesale downward departures from the guideline on this basis,
id. at 710 (“[E]very circuit court to address the issue has concluded a departure . . .
on this basis is not warranted.”), it would be inconsistent to require the district
No. 05-1407 Page 3
court to give a nonguideline sentence based on the differential. Moreover, the
district court imposed a sentence within the guideline range, which needs “little
explanation” for our reasonableness review. United States v. Dean, — F.3d. —,
2005 WL 1592960, at *5 (7th Cir. July 7, 2005); see United States v. Mykytiuk, —
F.3d —, 2005 WL 1592956, at *1-2 (7th Cir. July 7, 2005) (sentences within the
guideline range are presumed to be reasonable).
Accordingly, we AFFIRM Gipson’s sentence.