United States v. Clanton, Nathan J. ( 2008 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 07-1773, 07-2358, 07-2924
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    N ATHAN J. C LANTON, IBN A.
    W ILLIAMS, and C ARLTON E MBRY,
    Defendants-Appellants.
    ____________
    Appeals from the United States District Court
    for the Western District of Wisconsin.
    Nos. 06 CR 217, 06 CR 214, 07 CR 58—John C. Shabaz, Judge.
    ____________
    A RGUED F EBRUARY 19, 2008—D ECIDED A UGUST 14, 2008
    ____________
    Before M ANION, K ANNE, and T INDER, Circuit Judges.
    T INDER, Circuit Judge. This opinion consolidates for
    decision three cases argued before this panel on February
    19, 2007. All three cases present a similar question—an
    appeal of a crack sentencing and an argument about
    the crack/powder cocaine sentencing disparity. We will
    first address the other, for the most part meritless, issues
    raised in the individual cases and then move into the
    2                           Nos. 07-1773, 07-2358, 07-2924
    discussion of the crack sentencing ratio, which impacts all
    three cases. For the reasons discussed herein, we vacate
    and remand both Williams’s and Embry’s case for
    resentencing in light of Kimbrough and affirm Clanton’s.
    I. Carlton Embry
    On April 18, 2007, Carlton Embry was charged in a one-
    count indictment with possession of more than five grams
    of cocaine base (crack cocaine) with intent to distribute,
    in violation of 
    21 U.S.C. § 841
    (a)(1). He pled guilty on
    May 25, 2007. On August 2, 2007, he was sentenced to
    265 months in prison followed by five years of supervised
    release plus a $100 special assessment. Embry now appeals
    that sentence. There are essentially four issues on appeal:
    (1) that the application of the 100-to-1 cocaine crack/
    powder ratio in the sentencing guidelines violates his due
    process rights; (2) that Almendarez-Torres was wrongly
    decided and that judicial fact finding with respect to
    convictions not included in the indictment violates his
    Sixth Amendment rights; (3) that the Booker remedial
    opinion wrongly permits judicial fact finding in violation
    of the Constitution; and (4) that the inclusion of an “al-
    leged” gang affiliation in his pre-sentence report (“PSR”)
    violates his due process right that the PSR not contain
    “materially untrue, inaccurate, or unreliable” information.
    We will address the last three arguments in the following
    paragraphs and return to the first in the consolidated
    discussion further below.
    Embry argues that judicial fact finding of convictions
    not included in the indictment violates his rights under
    Nos. 07-1773, 07-2358, 07-2924                              3
    the Sixth Amendment. He asserts that Almendarez-Torres
    v. United States, 
    523 U.S. 224
    , 246-47 (1998), was wrongly
    decided and has been eroded in subsequent case law; so
    it should be overruled. This argument, of course, must
    fail, as we have no authority to overrule a decision by the
    Supreme Court of the United States. As we have held in
    previous cases, Almendarez-Torres is still good law, and we
    will continue to apply it until the Supreme Court instructs
    otherwise. See United States v. Johnson, 
    495 F.3d 536
    , 543-44
    (7th Cir. 2007) (“The governing law of the Supreme Court
    unequivocally states that the fact of a prior conviction need
    not be found by a jury beyond a reasonable doubt, nor
    must it be alleged in the indictment.”).
    Embry also contends that the framework established
    by United States v. Booker, 
    543 U.S. 220
     (2005), permits
    judicial fact finding, violating his constitutional rights. He
    argues that under Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), and Cunningham v. California, 
    549 U.S. 270
     (2007), he
    was denied his Sixth Amendment right to trial by jury
    when the court imposed a sentence under the so-called
    advisory guidelines. However, contrary to that assertion,
    we have already found that “Booker eliminated the con-
    stitutional concern by making the guidelines advisory.”
    United States v. Martinez, 
    518 F.3d 505
    , 510 (7th Cir. 2008).
    “Cunningham therefore has no effect on post-Booker federal
    practice. District judges remain free, as the remedial
    portion of Booker instructs, to make findings of fact that
    influence sentences, provided that the sentence is con-
    strained by the maximum set by statute for each crime.”
    United States v. Roti, 
    484 F.3d 934
    , 937 (7th Cir. 2007); see
    also United States v. Shannon, 
    518 F.3d 494
    , 495-96 (7th Cir.
    4                             Nos. 07-1773, 07-2358, 07-2924
    2008). Embry has offered no new compelling reasons or
    arguments; thus we decline to depart from precedent.
    See United States v. Savage, 
    505 F.3d 754
    , 764 (7th Cir. 2007).
    Worthy of slightly more consideration, Embry also
    objects to the inclusion of a gang affiliation allegation in
    his PSR and requests that it be stricken. The PSR, in ¶ 24,
    states that a confidential informant told officers that Embry
    wore a gold medallion with a panther on it, signifying
    his membership in the Blackstone gang. This is also
    included as a gang affiliation in the PSR’s “Identifying
    Data” section, labeling Embry as an “alleged Blackstone.”
    Embry objected, arguing that this information is mate-
    rially untrue; the medallion was not recovered in any
    searches, and a panther is not a symbol for the Blackstone
    gang.
    Embry argues that he has a due process right to a PSR
    that does not contain “materially untrue, inaccurate, or
    unreliable” information. Embry does have a due process
    right not to be sentenced based on a PSR that contains
    materially untrue, inaccurate, or unreliable information,
    but he does not, as he phrased it, have a due process right
    to have a PSR free of those things. If the judge did not
    rely on the allegedly inaccurate information, then there
    can be no due process violation.
    There is no doubt that a criminal defendant has a due
    process right to have the court consider only accurate
    information when imposing sentence, and that this
    right may be violated when the court considers infor-
    mation which is inaccurate. To succeed on such a
    claim the defendant must demonstrate that the infor-
    Nos. 07-1773, 07-2358, 07-2924                             5
    mation before the court was inaccurate and that the
    court relied on it.
    United States v. Coonce, 
    961 F.2d 1268
    , 1275 (7th Cir. 1992)
    (emphasis added) (citing United States v. Tucker, 
    404 U.S. 443
    , 447 (1972) and United States v. Musa, 
    946 F.2d 1297
    ,
    1306 (7th Cir. 1991)); see also United States v. Hankton, 
    432 F.3d 779
    , 790 (7th Cir. 2005). Here, Embry has not even
    argued that the judge considered or relied in any way on
    the alleged gang membership in his sentencing. Thus, the
    inclusion of the alleged gang affiliation in the PSR does not
    violate Embry’s due process rights.
    While similar to the due process evaluation, we also
    consider separately whether the district court violated the
    Federal Rules of Criminal Procedure. Under Federal Rule
    of Criminal Procedure 32(i)(3)(B)-(C), a court, at sentenc-
    ing, must
    for any disputed portion of the presentence report or
    other controverted matter—rule on the dispute or
    determine that a ruling is unnecessary either because
    the matter will not affect sentencing, or because the
    court will not consider the matter in sentencing; and
    must append a copy of the court’s determinations
    under this rule to any copy of the presentence
    report made available to the Bureau of Prisons.
    It appears that the sentencing judge did not comply with
    Rule 32, because the record contains neither a ruling on
    the dispute nor a clear statement that the matter would
    not affect sentencing. He said:
    And finally, we look to the gang member concern.
    Defendant asserts that the allegation made by the
    6                            Nos. 07-1773, 07-2358, 07-2924
    confidential informant as it relates to him being a Black
    Stone gang member is materially untrue. He requests
    that the information be stricken. Under the identifying
    data section of the presentence report, the Court
    believes that it has been noted that this affiliation is
    alleged and the Court will not make that determina-
    tion to remove the information from the presentence
    report at this time.
    While perhaps implying as much, the sentencing judge,
    nevertheless, did not outright say that the gang allegation
    would not impact the sentence. However, on appeal,
    Embry’s claim is not that the gang affiliation did somehow
    affect his sentence, but instead that it has the potential to
    affect him negatively in prison, depending on what the
    Bureau of Prisons (“BOP”) does with the information of
    this alleged affiliation.
    It is readily arguable that one of the purposes of Rule
    32(i)(3) is to ensure that the PSR contains accurate informa-
    tion for the BOP. See, e.g., United States v. Pless, 
    982 F.2d 1118
    , 1128 (7th Cir. 1992) (“The provision serves two
    purposes . . . (2) to provide prison and parole authorities
    with a clear record of how such disputes were resolved.”).
    But this “purpose” can only be incidental with respect to
    the information in the PSR which has no impact on the
    sentence itself. Otherwise, instead of indicating that a
    matter will not impact sentencing, the sentencing judge
    would have to rule on every issue simply because it
    might impact BOP decisions. The Advisory Committee
    notes to the 2002 Amendments specifically discuss this
    concern. Fed. R. Crim. P. 32 advisory committee notes
    (2002). An amendment was considered that would have
    Nos. 07-1773, 07-2358, 07-2924                               7
    required the court to rule on any “unresolved objection to
    a material matter” regardless of its impact on the sentence
    specifically because of the potential post-sentencing
    impact. 
    Id.
     However, the Committee chose not to adopt
    this amendment, explaining that “[t]o avoid unduly
    burdening the court, the Committee elected not to require
    the resolution of objections that go only to service of
    sentence.” Id.; see also United States v. Saeteurn, 
    504 F.3d 1175
    , 1178-81 (9th Cir. 2007). Thus, the resolution of
    questions impacting only post-sentencing decisions, while
    often useful and encouraged, is nevertheless not required
    under Rule 32. Therefore, the sentencing judge’s failure
    to rule on Embry’s alleged gang membership is not a
    violation of Rule 32.
    The only remaining possible error is a technical violation
    of Rule 32. As we mentioned, it is not explicit in the
    record that the sentencing judge determined that the gang
    information would not affect sentencing, thus rendering a
    ruling on the question unnecessary. However, there are
    no “magic words,” and since no one disputes that the
    alleged affiliation did not impact the sentence, it is not
    apparent that there was an error. In other words, con-
    sidering no one contends that the gang affiliation did
    impact the sentence, perhaps the sentencing judge’s
    statement made that sufficiently clear. Furthermore, even
    if we were to find the record’s absence of an explicit
    indication that the gang affiliation would not impact the
    sentence to be error, it would be harmless. See United States
    v. Cunningham, 
    429 F.3d 673
    , 679 (7th Cir. 2005); United
    States v. Slaughter, 
    900 F.2d 1119
    , 1123 (7th Cir. 1990). There
    8                            Nos. 07-1773, 07-2358, 07-2924
    is no argument that Embry’s sentence was impacted; the
    only potential harm is what the BOP might do with the
    information. As we already explained, that type of harm
    is not overtly protected by the Rule. However, even if we
    were to remand, the sentencing judge could simply put
    into the record that the alleged gang affiliation was not
    considered in the sentencing. Such a result is effectively
    no different than the present situation, and would not
    provide the remedy—striking the affiliation—that Embry
    desires. Moreover, the gang affiliation, as the sentencing
    judge emphasized, is noted as “alleged” in the PSR, an
    indication on its face which demonstrates to the BOP that
    the judge made no ruling as to gang membership. The
    alleged harm is also entirely speculative at this point, and
    if such concrete harm occurs later, Embry has other
    avenues of redress that he can pursue through the BOP.
    Thus, while we take this opportunity to remind judges
    to be explicitly clear in their rulings with respect to Rule
    32, any technical violation of the rule in the instant case
    is harmless.
    II. Nathan Clanton
    Nathan Clanton was charged, in a two-count indictment,
    with distributing five grams or more of cocaine base in
    violation of 
    21 U.S.C. § 841
    (a)(1). He was arraigned on
    December 19, 2006, and pled not guilty. On January 30,
    2007, he pled guilty to count one pursuant to a written
    plea agreement. On April 3, 2007, at the sentencing hear-
    ing, the district court sentenced Clanton, following the
    applicable guidelines range, to 212 months’ imprisonment,
    five years’ supervised release, and a $100 special assess-
    Nos. 07-1773, 07-2358, 07-2924                                 9
    ment. The court dismissed count two of the indictment. On
    appeal, Clanton makes two arguments: (1) that his sen-
    tence is unreasonable and the crack/powder cocaine
    disparity reflected in the guidelines does not comport with
    the statutory purposes of sentencing; and (2) that his
    misdemeanor battery offense, for which he was subject
    to over one year in prison under Wisconsin’s habitual
    offender statute, should not qualify as a predicate offense
    under the career offender provisions of the guidelines.
    His ratio argument will be discussed below.
    With respect to his second argument, Clanton argues that
    he does not qualify as a career offender. He claims that
    the court should not have counted the battery as a
    felony—instead of looking at the punishment with the
    recidivism enhancement, the court should have looked
    at the maximum punishment for the base offense. Our
    review is only for plain error, since Clanton raises this
    issue for the first time here on appeal. Our decision in
    United States v. Bissonette, 
    281 F.3d 645
     (7th Cir. 2002), flatly
    forecloses Clanton’s argument. Clanton admits as much
    and cites Rodriquez, a Ninth Circuit case, in which, at the
    time of briefing, the Supreme Court had granted certiorari.
    United States v. Rodriquez, 
    464 F.3d 1072
     (9th Cir. 2006),
    cert. granted, 
    128 S. Ct. 33
     (2007). The case dealt with the
    Armed Career Criminal Act (“ACCA”), under which “a
    state drug-trafficking conviction qualifies as ‘a serious
    drug offense’ if ‘a maximum term of imprisonment of ten
    years or more is prescribed by law’ for the ‘offense.’ ”
    United States v. Rodriquez, 
    128 S. Ct. 1783
    , 1786 (2008) (citing
    
    18 U.S.C. § 924
    (e)(2)(A)(ii)). The question before the Court
    was whether the “maximum term of imprisonment pre-
    scribed by law” is the “5-year ceiling for the first offenses”
    10                           Nos. 07-1773, 07-2358, 07-2924
    or “the 10-year ceiling for second or subsequent offenses.”
    
    Id. at 1787
    . In May the Court issued its decision, finding
    “[i]n sum, a straightforward application of the language
    of ACCA leads to the conclusion that the ‘maximum term
    of imprisonment prescribed by law’ in this case was
    10 years.” 
    Id. at 1788
    . Given this conclusion, Rodriquez does
    not help Clanton, Bissonette unquestionably governs the
    case, and we need not address the issue any further.
    III. Ibn Williams
    Ibn Williams was charged with possession with intent
    to distribute more than five grams of cocaine base in
    violation of 
    21 U.S.C. § 841
    (a)(1). He pled guilty on
    March 21, 2007. The PSR calculated 129.76 grams of cocaine
    base, putting his offense level at 32. With a two-level
    increase for possessing a dangerous weapon and a three-
    level decrease for acceptance of responsibility, the total
    offense level was 31. His criminal history category was I,
    putting the sentence range at 108-135 months. At the
    sentencing on May 30, 2007, the judge sentenced Williams
    to 108 months in prison, followed by four years of super-
    vised release, plus a $100 criminal assessment. On appeal,
    Williams argues (1) that the sentence was unreasonable
    and the judge should be permitted to reject the 100-to-1
    ratio, and (2) that the court used the term “advisory” with
    respect to the guidelines but in reality treated them as
    mandatory.
    Williams claims that the sentencing judge only gave lip
    service to the “advisory” nature of the sentencing guide-
    lines, violating Booker, 
    543 U.S. 220
     (2005). Williams fails,
    Nos. 07-1773, 07-2358, 07-2924                            11
    however, to produce adequate support for this argument.
    The sentencing judge correctly and consistently referred
    to the guidelines as advisory. He also went through the
    appropriate steps, calculating the guideline range and
    then considering individual factors with respect to Wil-
    liams. He concluded that the given sentence was “reason-
    able and necessary to hold the defendant accountable for
    his serious conduct, to serve as a deterrent to him, to
    protect the community from further criminality on his
    part, and to achieve parity with the sentences of similarly
    situated defendants . . . .”
    The majority of the examples Williams cites in support
    of his position are the judge’s references to the 100-to-1
    crack ratio. This, however, is not at all persuasive, since
    prior to Kimbrough, under our precedent, that aspect of the
    guidelines was effectively mandatory and district court
    deviations would have been futile. Therefore, the com-
    ments from the sentencing judge were not surprising and
    cannot now reasonably be used to argue he did not,
    generally speaking, properly treat the guidelines as
    advisory. (With respect to any specific failing to treat
    the ratio as advisory, our decision, discussed below,
    regarding the ratio and Kimbrough adequately take care of
    that concern.) Since Williams has failed to point to any-
    thing persuasive in the record before us to make his point,
    he cannot prevail on this issue.
    IV. The 100-to-1 Crack Ratio, Considerations
    Post-Kimbrough
    The Defendants in these three cases put forth argu-
    ments, in various forms, that the application of the 100-to-1
    12                             Nos. 07-1773, 07-2358, 07-2924
    crack ratio in the sentencing guidelines was in some way
    improper, unreasonable, and/or unconstitutional. While
    these cases were making their ways through the appeals
    process, the United States Supreme Court decided
    Kimbrough v. United States, 
    128 S. Ct. 558
     (2007). In
    Kimbrough the Court held that the 100-to-1 ratio in the
    guidelines is not dictated by statute, but rather is
    advisory, like the rest of the sentencing guidelines, and the
    district court may accordingly depart from § 2D1.1’s 100-
    to-1 ratio. Id. at 564; see United States v. Taylor, 
    520 F.3d 746
    (7th Cir. 2008). Since our circuit precedent prior to
    Kimbrough held that it would be unreasonable for a judge
    to depart from the ratio, it is understandable that district
    judges did not attempt to do so. With this in mind, we
    now must determine what to do with these cases.
    We found in Taylor that a limited remand was appropri-
    ate in cases where the defendant did not object to the ratio
    in the district court, 
    520 F.3d at 747-48
    , growing out of a
    plain-error standard similar to the one used when the
    Booker Court first held that the guidelines were advisory,
    see United States v. Paladino, 
    401 F.3d 471
    , 481-84 (7th Cir.
    2005). We also held, in both the Booker and Kimbrough
    contexts, that if the district judge had made clear that she
    would sentence the defendant the same regardless, then a
    remand would be unnecessary. United States v. White, 
    519 F.3d 342
    , 349 & n.6 (7th Cir. 2008); see also Taylor, 
    520 F.3d at 746-47
    . However, the three cases before us now are
    distinguishable from Taylor, because Embry, Clanton, and
    Williams each objected to the ratio below. Thus, we are not
    governed by a plain-error standard of review, and the
    limited remand would not apply. We review for abuse
    Nos. 07-1773, 07-2358, 07-2924                                13
    of discretion. Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).
    The Court in Gall explained that “[r]egardless of whether
    the sentence imposed is inside or outside the Guide-
    lines range, the appellate court must review the sentence
    under an abuse-of-discretion standard,” first ensuring
    there was no procedural error such as “treating the Guide-
    lines as mandatory” or “failing to consider § 3553(a)
    factors.” Id. Then “[a]ssuming that the district court’s
    sentencing decision is procedurally sound, the appellate
    court should . . . consider the substantive reasonableness
    of the sentence imposed under an abuse-of-discretion
    standard.” Id. However, this distinction between abuse-of-
    discretion and plain-error review creates no significant
    practical impact in this case, since the same issues con-
    cerning us in Taylor must be dealt with here, and the
    remedy differs only in the form of remand.
    In all three cases the defendants argued the unfairness
    of the ratio under the 
    18 U.S.C. § 3553
    (a) factors in the
    district court. The sentencing judge addressed the objec-
    tion to the ratio in each case, but it is clear from his com-
    ments that he viewed himself duty-bound by Congress and
    our precedent to unwaveringly stick with the ratio. Embry
    and Clanton were sentenced near the middle of their
    guidelines range. Williams was sentenced at the low end
    of his range. It is not certain from the records in any of
    these cases that the sentencing judge would have given
    the same sentences even without the guidelines; thus,
    like Taylor, we are not in a position to find that remands
    would be unnecessary.
    Given the holding in Kimbrough, we find that remand
    is readily warranted in Williams’s case to allow the dis-
    14                           Nos. 07-1773, 07-2358, 07-2924
    trict court judge an opportunity to determine whether
    or not to sentence differently. We conclude that it was
    an abuse of discretion to summarily dismiss the crack
    disparity argument by effectively treating the ratio as
    mandatory and not to consider its merits under § 3553. See
    Gall, 
    128 S. Ct. at 597
    . This is similar to our conclusion
    in Taylor and similar to post-Kimbrough decisions from
    our sister circuits. On remand the district judge can
    consider the § 3553(a) arguments now knowing the crack
    ratio is advisory. For these reasons, with respect to the
    Williams case, we remand for re-sentencing. This does not
    end the discussion, however, for defendants Embry and
    Clanton.
    Clanton and Embry, unlike Kimbrough, Taylor, and
    Williams, did not have a guidelines range calculated solely
    under § 2D1.1 of the guidelines, which is where the
    infamous crack ratio is imbedded; they were career offend-
    ers sentenced pursuant to the career offender guideline,
    § 4B1.1. Thus, we must determine to what extent, if any,
    the Court’s decision in Kimbrough, which technically
    addressed § 2D1.1, affects their sentences. Under § 4B1.1,
    the offense level is calculated as it would be if the defen-
    dant were not a career offender (for defendants Clanton
    and Embry this calculation was made pursuant to § 2D1.1).
    Then, the offense level is calculated using the table in
    the career offender provision. Section 4B1.1(b) explains
    that the higher offense level of the two will apply.
    In Embry’s case the offense level under the career
    offender guideline table in § 4B1.1(b) was 34, and the
    offense level with the reference back to § 2D1.1 was 36.
    Nos. 07-1773, 07-2358, 07-2924                             15
    Since the offense level calculated under § 2D1.1 was higher
    than under § 4B1.1(b), Embry’s offense level was 36. Thus
    while technically sentenced under § 4B1.1, the calculation
    done according to § 2D1.1 ultimately applied. Thus, he
    was effectively sentenced under the guideline’s crack ratio.
    Remanding his case is appropriate, then, since the
    Kimbrough decision has the obvious potential to impact
    his sentence.
    Clanton’s case, however, is a different matter. His
    offense level under § 2D1.1 was 32; under the § 4B1.1(b)
    table it was 34. The career offender offense level was
    higher, and was therefore the one ultimately used to
    calculate his sentence. The career offender guideline in
    § 4B1.1, unlike § 2D1.1’s drug quantity table, does not
    include a crack ratio. The guideline references the “offense
    statutory maximum,” which in this case refers to the 40
    year maximum found in 
    21 U.S.C. § 841
    (b)(1)(B)
    for possession of 5 grams or more of cocaine base or 500
    or more grams of powder cocaine, to establish the
    offense levels. Thus any crack disparity is attributable to
    the statute not the guidelines. This is the same issue
    addressed in our recent case, United States v. Harris, in
    which we noted that “[w]hile the sentencing guidelines
    may be only advisory for district judges, congressional
    legislation is not.” No. 07-2195, 
    2008 WL 3012362
    , *12 (7th
    Cir., Aug. 6, 2008). We then concluded, following our
    sister circuits, that “a sentence entered under the career
    offender guideline, § 4B.1.1, raises no Kimbrough problem
    because to the extent it treats crack cocaine differently from
    powder cocaine, the disparity arises from a statute, not
    16                           Nos. 07-1773, 07-2358, 07-2924
    from the advisory guidelines.” Id. at *13. Clanton’s case
    is indistinguishable from Harris. Therefore, we conclude
    that Clanton is not entitled to a remand as Kimbrough
    does not impact his sentence.
    V. Conclusion
    With respect to defendants Williams and Embry, we
    V ACATE the sentences and R EMAND for resentencing
    in light of Kimbrough, giving the district judge an oppor-
    tunity to consider and address the crack disparity argued
    by the defendants; we A FFIRM the district court’s decisions
    on the other appealed issues. With respect to defendant
    Clanton, we A FFIRM in the totality.
    8-14-08