United States v. Flowers, Gregory , 197 F. App'x 482 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 12, 2006*
Decided September 5, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1437
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 04 CR 42
GREGORY FLOWERS,
Defendant-Appellant. Robert L. Miller, Jr.,
Chief Judge.
ORDER
Gregory Flowers appeals his 70-month sentence for possession with intent to
distribute cocaine base, arguing that the sentence is unreasonable because of the
sentencing judge’s failure to examine the disparity in the Sentencing Guidelines
between the advisory range for identical quantities of cocaine base and powder
cocaine. The record reveals that Chief Judge Miller appropriately considered the
factors described in 18 U.S.C. § 3553(a) as they applied to Flowers’s case. As
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary.
Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
No. 06-1437 Page 2
discussed more fully below, we therefore affirm the judgment of the district court.
I. BACKGROUND
In 2004, Gregory Flowers was charged with possession with intent to
distribute marijuana and crack cocaine (cocaine base) within 1,000 feet of a
playground, 21 U.S.C. §§ 841(a)(1), 860, and possession of a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). After a trial, Flowers
was convicted on all counts on July 8, 2004. The district court sentenced Flowers to
108 months’ imprisonment on each of the drug counts, to be served concurrently,
and 60 months’ imprisonment on the gun count, to be served consecutively.
Flowers’s narcotics sentences were based on a miscalculation of the
appropriate Guidelines range. On appeal, the Government acknowledged that the
district court had erred in including the weight of the packaging in calculating the
applicable drug weight. This miscalculation resulted in Flowers being sentenced for
49% more cocaine base and 30% more marijuana than was appropriate. We vacated
the first sentence and remanded for resentencing.
On remand, the district court recalculated the advisory Guidelines range on
the basis of the correct drug quantities and imposed concurrent sentences of 70
months for the drug counts. Flowers filed a timely appeal of his sentence on
January 3, 2006.
II. ANALYSIS
Flowers raises only one argument in this appeal — that his sentence is
unreasonable because the district court failed to take account of the disparity in the
Guidelines’ treatment of crack cocaine and powder cocaine. As an initial matter, we
note that though the group of drugs that are considered cocaine base includes drugs
other than crack cocaine, the terms are interchangeable for purpose of a sentence
involving crack. See generally United States v. Edwards, 397 F.3d 570, 573-76 (7th
Cir. 2005) (discussing the split among the circuits as to whether possession of
cocaine base that is not crack should be subject to enhanced penalties that are
intended for crack cocaine possession). Following the Supreme Court’s decision in
United States v. Booker, we review sentences for reasonableness. 543 U.S. 220, 261-
62 (2005). The determination of whether a sentence is reasonable is governed by
the factors enumerated in 18 U.S.C. § 3553. See id. We have determined that a
sentence which falls within the Guidelines’ range is presumptively reasonable. See
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). A defendant
challenging his sentence can rebut this presumption by demonstrating that his
sentence unreasonably conflicts with the Section 3553 factors. See id.No. 06-1437 Page 3
Flowers bases his argument on 18 U.S.C. § 3553(a)(2)(A), which requires the
sentencing court to consider “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” The gravamen of Flowers’s claim is that consideration
of the crack cocaine/powder cocaine disparity is a necessary component of the
Section 3553(a)(2)(A) consideration, and that Chief Judge Miller’s statements at
sentencing demonstrate that he failed to employ the proper analysis. This
argument is invalid, resting on two flawed premises.
First, Flowers is incorrect that Chief Judge Miller’s statements evince a
failure to adequately consider Section 3553. Chief Judge Miller stated that “I think
to impose a sentence below the Guideline range, based on the choice Congress has
made originally on that, how they treat crack versus how they treat powder cocaine,
I think, does require an extraordinary case.” He went on to state that “the statute
that now controls sentencing says that I am to consider the need to avoid
unwarranted sentence disparities among defendants with similar records . . . I
simply can’t find anything in the nature and circumstances of the offense, looking at
all of it, to justify a sentence below that range.” This language makes clear that
Chief Judge Miller recognized the advisory status of the Guidelines post Booker and
the requirement that he consider the various factors described in Section 3553. He
also considered and rejected Flowers’s cocaine disparity argument.
Second, we have already rejected Flower’s argument that the Guidelines’
disparity between crack and powder cocaine sentences renders a within-Guidelines
sentence unreasonable. We addressed this argument in United States v. Gipson,
425 F.3d 335, 336 (7th Cir. 2005), which Flowers cites as authority for the
proposition that “a district court ha[s] the authority to assess the 100:1
crack/powder disparity as part of the 18 U.S.C. § 3553(a) factors.” Whether
Flowers’s reading of Gipson is correct is of no moment, because the central question
in Gipson, as in the instant case, was simply “whether it is error for a court not to
have taken the differential into account.” Id. at 337 (emphasis in original). We
concluded that it was not error, stating: “[g]iven the fact that we have routinely
upheld the differential against constitutional attack . . . and, under the pre-Booker
guideline system, rejected wholesale downward departures from the guideline on
this basis . . . it would be inconsistent to require the district court to give a
nonguideline sentence based on the differential.” Id. (emphasis in original). Here,
too, Flowers has not identified any § 3553(a) factor entitling him to a lower
sentence.
No. 06-1437 Page 4
In sum, Flowers has identified neither factual nor legal error on the part of
the district court, and he has identified no precedent in support of his argument.
He has also failed to articulate a compelling reason for us to reexamine our prior
rulings on this issue.
III. CONCLUSION
The judgment of the district court is AFFIRMED.