United States v. Gipson, Ronald ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1407
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD GIPSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04-CR-30061-01-WDS—William D. Stiehl, Judge.
____________
ARGUED AUGUST 3, 2005—DECIDED AUGUST 10, 2005
PUBLISHED SEPTEMBER 28, 2005Œ
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
PER CURIAM. 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
Œ
This decision was originally issued as an unpublished order
on August 10, 2005. Upon request, the panel has determined
that this decision should now issue as a published opinion.
2 No. 05-1407
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 shoul-
der. 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 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 dispar-
ity in punishment for crack cocaine versus cocaine powder.
The district court rejected Gipson’s argument after contem-
plating 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
No. 05-1407 3
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 dis-
missed, 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 justifica-
tion.” 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 recom-
mended 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 differen-
tial 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 consti-
tutional 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 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, 414 F.3d 725, 730 (7th Cir. 2005); see United
States v. Mykytiuk, 15 F.3d 606, 607 (7th Cir. 2005) (sen-
4 No. 05-1407
tences within the guideline range are presumed to be
reasonable).
Accordingly, we AFFIRM Gipson’s sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-28-05