United States v. Ringold ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10492
Plaintiff-Appellee,
v.  D.C. No. CR-05-
00805-MJJ
ARNOLD RINGGOLD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
December 15, 2008—Pasadena, California
Filed July 7, 2009
Before: J. Clifford Wallace, Edward Leavy and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
8337
UNITED STATES v. RINGGOLD 8339
COUNSEL
Barry J. Portman, Federal Public Defender, and Jerome E.
Matthews (argued), Assistant Federal Public Defender, Oak-
land, California, for the defendant-appellant.
Joseph P. Russoniello, United States Attorney, Barbara J. Val-
liere, Assistant United States Attorney, and W.S. Wilson
Leung (argued), Assistant United States Attorney, San Fran-
cisco, California, for the plaintiff-appellee.
OPINION
THOMAS, Circuit Judge:
This appeal concerns the question whether, after United
States v. Booker, 543 U.S. 220 (2005), a district court abuses
its discretion by declining to consider the disparity between a
recommended Guidelines sentence and the maximum sen-
tence a defendant would receive if convicted of the same con-
duct in state court. Under the circumstances presented by this
case, we hold that the district court did not abuse its discretion
8340 UNITED STATES v. RINGGOLD
or commit procedural error in declining to consider such a
disparity. Additionally, we hold that the sentence imposed by
the district court was not substantively unreasonable.
I
Arnold Ringgold pled guilty to a charge of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The pre-sentence report calculated a base offense level of 24
under section 2K.2.1(a)(2) of the Sentencing Guidelines
because Ringgold had at least two prior felony convictions for
controlled substance offenses. See U.S.S.G. § 2K2.1(a)(2)
(Nov. 2008). The recommended sentence represented a ten-
level increase over the base offense level otherwise applicable
to Ringgold under section 2K.2.1(a)(6). The pre-sentence
report also advocated a two-level enhancement because the
firearm had an obliterated serial number, a three-level down-
ward departure for acceptance of responsibility, and a crimi-
nal history category of VI, resulting in an advisory Guidelines
range of 92 to 115 months.
At sentencing, the government recommended the low-end
Guidelines sentence of 92 months. Ringgold proposed a 60-
month sentence, arguing that the section 2K2.1(a)(2) base
offense level of 24 was unwarranted because his prior con-
trolled substance convictions involved only small amounts of
marijuana and were relatively non-serious. He also argued
that the district court judge should take into account the fact
that he would be subject to a maximum three-year sentence if
convicted of the same conduct in a California state court. The
district court addressed these arguments, analyzed the 18
U.S.C. § 3553(a) factors in Ringgold’s case, and determined
that these factors warranted the low-end recommended Guide-
lines sentence of 92 months’ imprisonment.
We review a district court’s imposition of sentence for
abuse of discretion. United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc) (citing Gall v. United States, 128 S.
UNITED STATES v. RINGGOLD 8341
Ct. 586, 597 (2007)). When reviewing a sentence, “we first
consider whether the district court committed significant pro-
cedural error, then we consider the substantive reasonableness
of the sentence.” Id. “It would be procedural error for a dis-
trict court to fail to calculate—or to calculate incorrectly—the
Guidelines range; to treat the Guidelines as mandatory instead
of advisory; to fail to consider the § 3553(a) factors; to choose
a sentence based on clearly erroneous facts; or to fail ade-
quately to explain the sentence selected, including any devia-
tion from the Guidelines range.” Id. “We must reverse if the
district court committed a significant procedural error.”
United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir.
2008). In determining substantive reasonableness, we are to
consider the totality of the circumstances. Carty, 520 F.3d at
993.
II
Under the circumstances presented by this case, the district
court did not commit procedural error in its 18 U.S.C.
§ 3553(a) analysis by not considering the disparity between
the 92-month recommended Guidelines sentence and the sen-
tence Ringgold would receive if convicted for the same con-
duct in California state court.
Prior to the Supreme Court’s decision in Booker, we held
that a district court abused its discretion in departing from a
Guidelines range sentence based on the fact that a defendant
would receive a lower state court sentence for the same con-
duct. United States v. Williams, 282 F.3d 679, 681-82 (9th
Cir. 2002). We noted that allowing the departure solely based
on federal-state sentence disparities “would undermine the
goal of uniformity that Congress sought to ensure in enacting
the Guidelines, because every federal sentence would become
dependent upon the practice of the state within which the fed-
eral court sits.” Id. at 682. Therefore, we concluded that a
downward departure based on a pure comparison between
federal and state court sentences for the same criminal con-
8342 UNITED STATES v. RINGGOLD
duct was not a factor that took the case “outside the heartland
of the applicable Guideline.” Id. at 681 (citation omitted).
Booker, of course, changed the legal landscape of federal
sentencing analysis. Ringgold contends that in the post-
Booker advisory Guidelines world, in which a sentencing
judge must consider all the § 3553(a) factors in arriving at a
sentence, the district court abused its discretion by not taking
into consideration the disparity between the recommended
Guidelines sentence and the sentence he would have received
in state court.
Ringgold’s theory cannot be squared with the discretion
committed to the district courts by Booker and its progeny.
We conclude that a district court does not commit procedural
error in its 18 U.S.C. § 3553(a) analysis if it does not consider
disparities between state and federal sentences for the same
criminal conduct.
[1] The starting point for our analysis is the governing stat-
ute. It is true, as Ringgold points out, that one of the factors
that district courts must consider in imposing sentences under
the statute is “the need to avoid unwarranted sentence dispari-
ties among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
However, this statutory provision requires district courts to
consider sentencing disparities between similarly situated fed-
eral defendants. It does not require district courts to consider
sentence disparities between defendants found guilty of simi-
lar conduct in state and federal courts.
[2] The Sentencing Reform Act of 1984 created the United
States Sentencing Commission to “establish sentencing poli-
cies and practices for the Federal criminal justice system.” 28
U.S.C. § 991(b)(1) (emphasis added). The Commission is
charged with “avoiding unwarranted sentencing disparities
among defendants with similar records who have been found
guilty of similar criminal conduct . . . .” 28 U.S.C.
UNITED STATES v. RINGGOLD 8343
§ 991(b)(1)(B); see also Booker, 543 U.S. at 253 (“Congress’
basic goal in passing the Sentencing Act was to move the sen-
tencing system in the direction of increased uniformity.”).
Although Booker rendered the Guidelines advisory, it did not
extinguish the objective of ensuring nationwide consistency in
federal sentencing. Booker acknowledged that some degree of
uniformity would be sacrificed under a non-mandatory federal
sentencing scheme. See Booker, 543 U.S. at 263 (“We cannot
and do not claim that use of a ‘reasonableness’ standard will
provide the uniformity that Congress originally sought to
secure.”). Nonetheless, Booker maintained that the non-
mandatory Guidelines system it announced would further
Congress’ original objectives of “honesty,” “uniformity,” and
“proportionality.” Id. at 264.
[3] Furthermore, the Supreme Court has since reaffirmed
the goal of uniformity in federal sentencing. See Gall, 128 S.
Ct. at 596 (“As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting
point and the initial bench mark.”) (emphasis added). We
agree with those circuits to have reached the issue that a dis-
trict court judge does not abuse his discretion in declining to
consider under § 3553(a)(6) the sentence a defendant would
have received for the same conduct in state court. See United
States v. Johnson, 505 F.3d 120, 123-24 (2d Cir. 2007) (hold-
ing district court did not err “by declining to adopt an
approach that would have decreased sentencing disparities
between [the defendant] and any similarly-situated state
defendant but increased sentencing disparities between [the
defendant] and any similarly-situated federal defendant prose-
cuted in different states”); United States v. Malone, 503 F.3d
481, 486 (6th Cir. 2007) (holding that § 3553(a)(6)’s “admo-
nition that sentencing courts avoid unwarranted disparities is
directed only at federal court to federal court disparities, not
those that may exist between federal and state courts”);
United States v. Schmitt, 495 F.3d 860, 863 (7th Cir. 2007)
(holding that “adjusting federal sentences to accord with those
imposed for similar crimes in state court would undermine the
8344 UNITED STATES v. RINGGOLD
goal of uniformity within the federal system”); United States
v. Branson, 463 F.3d 1110, 1112 (10th Cir. 2006) (stating that
adjusting federal sentences to conform to state sentences
would be at odds with purpose of § 3553(a)(6)); United States
v. Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006) (“Unwarranted
sentencing disparities among federal defendants remains the
only consideration under § 3553(a)(6)—both before and after
Booker.”); United States v. Clark, 434 F.3d 684, 687 (4th Cir.
2006) (“The sole concern of section 3553(a)(6) is with sen-
tencing disparities among federal defendants”) (emphasis
removed). A contrary holding would undermine the objective
of uniformity in federal sentencing that continues after
Booker. Several post-Booker cases cited by Ringgold are not
to the contrary, as they involve disparities in sentences
between federal defendants. See, e.g., Spears v. United States,
129 S. Ct. 840, 843-44 (2009) (upholding district court’s
departure from recommended Guidelines sentence for crack-
cocaine offense based on district court’s policy disagreement
with disparate treatment under Guidelines of crack versus
powder cocaine offenders); Kimbrough v. United States, 128
S. Ct. 558, 575 (2007) (no “abuse of discretion for a district
court to conclude when sentencing a particular defendant that
the crack/powder disparity yields a sentence ‘greater than nec-
essary’ to achieve § 3553(a)’s purposes, even in a mine-run
case”); see also United States v. Gonzalez-Zotelo, 556 F.3d
736, 740-41 (9th Cir. 2009) (analyzing circuit split as to
whether, after Kimbrough, district courts may depart from
Guidelines under § 3553(a)(6) based on sentencing disparity
between federal defendants within and without “fast-track”
districts).
[4] Thus, we must reject Ringgold’s assertion that a district
court is required by § 3553 to consider comparable state sen-
tences. A district court does not commit procedural error by
declining to consider the state sentence the defendant would
have likely received for the same conduct.
Because the district court did not rely on the federal-state
sentencing disparity in this case, we need not address the gov-
UNITED STATES v. RINGGOLD 8345
ernment’s argument that a district court may never consider,
in the course of its § 3553(a) analysis, the sentence a defen-
dant would receive if convicted of similar conduct in state
court. District court judges are required to “consider all of the
§ 3553(a) factors to determine whether they support the sen-
tence requested by a party” and to “make an individualized
assessment based on the facts presented.” Gall, 128 S. Ct. at
596-97 (emphasis added). We need not decide whether con-
sideration of a defendant’s potential state sentence may be rel-
evant to a judge’s analysis of sentencing factors other than
§ 3553(a)(6). See Clark, 434 F.3d at 687-88 (noting that
“[t]here may be unusual cases when, despite the disparities
among federal defendants created by the consideration of state
sentencing practices, the sentence imposed will yet be reason-
able in light of all of the section 3553(a) factors, because state
sentencing practices will inform the proper consideration of
factors other than section 3553(a)(6)”).
[5] Given the circumstances presented by this case, in
which the only argument asserted was disparity between the
federal and analogous state statute, the district court did not
commit procedural error in declining to consider the differ-
ence in sentences.
III
The sentence imposed by the district court is not substan-
tively unreasonable. Ringgold argues that in applying the
U.S.S.G. § 2K2.1(a)(2) base offense level of 24, the district
court should have taken into account the fact that his prior
convictions for controlled substance offenses involved mari-
juana in relatively small amounts. Ringgold contends that his
sentence is substantively unreasonable because it is greater
than necessary to comply with the sentencing purposes set
forth at 18 U.S.C. § 3553(a)(2).
[6] While it is true that section 2K2.1(a)(2) does not distin-
guish between offenses involving different drug types and
8346 UNITED STATES v. RINGGOLD
quantities, the district court did not abuse its discretion in
holding the section 2K2.1(a)(2) base offense level was war-
ranted in Ringgold’s case. The district court judge found that
Ringgold had three prior felony convictions for sale of mari-
juana in addition to an otherwise lengthy criminal history and
found significant the short time frame between Ringgold’s
convictions for the controlled substance offenses. The judge
found the deterrence and public protection factors at
§ 3553(a)(2) favored the 92-month sentence because Ring-
gold’s prior imprisonment “has not made a significant impact
upon him so much so that he picked up this offense while on
parole after having been sent to state prison for the first time.”
While we recognize that application of section 2K2.1(a)(2)
might lead to a substantively unreasonable sentence in some
cases, the district court judge did not abuse his discretion
here.
IV
In sum, we conclude that on the facts of this case, the dis-
trict court acted within its discretion in declining to consider
in its § 3553(a) analysis the sentence Ringgold would have
received in state court for the same conduct and in finding
Ringgold’s prior controlled substance offenses warranted the
Guidelines base offense level.
AFFIRMED.