United States v. Vandewege , 561 F.3d 608 ( 2009 )

JULIA SMITH GIBBONS, Circuit Judge,

concurring in the judgment.

I join in the court’s judgment that the district court did not commit clear error in attributing to Vandewege the 12.3 grams of crack cocaine found under the passenger-side floormat of Vandewege’s car for purposes of calculating his advisory Sentencing Guidelines range. See U.S.S.G. § IB 1.3(a)(2) (requiring “all acts and omissions” that are “part of the same course of conduct or common scheme or plan” to be included in the Guidelines calculation). I also agree with the court that a remand for resentencing is appropriate in light of the Sentencing Commission’s alteration of the crack-cocaine ratio, a point that the government concedes. See 18 U.S.C. § 3582(c)(2) (allowing for resentencing where the Commission has subsequently lowered the applicable Guideline range). However, I cannot agree with the majority’s characterization — albeit in dicta — of the Supreme Court’s recent decision in Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); and for that reason, I concur in the judgment only.

Spears v. United States, — U.S. —, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) clarified the Supreme Court’s 2007 holding in Kimbrough, which examined what deference district courts must give to the sentencing ratio established by the Sentencing Commission for crack and cocaine offenses. Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 129 S.Ct. at 843-44. Neither Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests. See Maj. Op. at 610 (asserting that “[t]he Supreme Court has made it clear” that district judges may depart from the Guidelines based upon any policy disagreement and claiming that the Court has established a higher standard of review for such departures). Kimbrough instead expressly reserved the question as to whether a district court could categorically vary from the Guideline range based solely upon a policy disagreement with the Commission in an area other than the crack-cocaine disparity. Kimbrough, 128 S.Ct. at 575 (noting that the “crack cocaine Guidelines ... present no occasion for elaborative discussion” of the larger question of district courts’ ability to categorically disagree with the Commission’s policy decisions). This was because the crack-cocaine Guidelines did “not exemplify the Commission’s exercise of its characteristic institutional role” of gathering “empirical data and national experience” and adjusting the Guideline range accordingly. Id. (internal quotation and citation omitted); see also Spears, 129 S.Ct. at 842-48 (noting that Kimbrough’s, holding allowing for categorical departures based upon policy disagreements applied only as to sentences for crack or cocaine offenses). The Supreme Court only hinted that if a district court could categorically depart from the Guidelines range in an area where the Commission has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be required. Kimbrough, 128 S.Ct. at 575 (“[CJloser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 8558(a) considerations even in a mine-run case.” (internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that district courts may vary from the Guidelines based solely upon any policy disagreement. Maj. Op. at 610.

Applied to the present case, this debate over Kimbrough and Spears’s portent is purely academic. Vandewege’s appeal presents us only with a defendant convicted of distributing cocaine, an area where the district courts’ authority to categorically depart from the Guidelines’ policy is clear. We therefore have no occasion or authority to issue any holding bestowing upon district courts the carte blanche power to reject all policy decisions made by the Sentencing Commission, the dicta of the majority notwithstanding. With these observations, I concur in the judgment of the court.