United States v. Eura

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4437
VINCENT CARNELIUS EURA,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 05-4533
VINCENT CARNELIUS EURA,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-04-151)
Argued: December 2, 2005
Decided: February 24, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion.
Senior Judge Hamilton wrote the opinion, in which Judge Wilkinson
joined. Judge Michael wrote a separate opinion concurring in the
judgment and concurring in part.
2 UNITED STATES v. EURA
COUNSEL
ARGUED: Craig Weston Sampson, Richmond, Virginia, for
Appellant/Cross-Appellee. Michael James Elston, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee/Cross-Appellant. ON BRIEF:
Paul J. McNulty, United States Attorney, Alexandria, Virginia, for
Appellee/Cross-Appellant.
OPINION
HAMILTON, Senior Circuit Judge:
Under the United States Sentencing Guidelines, a defendant who
deals five grams of crack cocaine faces the same sentence as a defen-
dant who deals five hundred grams of powder cocaine. This disparity
is commonly referred to as the "100:1 ratio." Congress adopted the
100:1 crack cocaine/powder cocaine ratio in 1986, thereby setting
mandatory minimum sentences based on the quantity of cocaine, in
crack or powder form.1 In 1987, the Sentencing Commission, follow-
ing Congress’ lead, adopted the same ratio, when it fashioned the
Drug Quantity Table found at USSG § 2D1.1(c). Under the Guide-
lines, the Drug Quantity Table determines a defendant’s offense level,
which ultimately controls the sentencing range under the Guidelines.
1
Congress adopted the 100:1 ratio in the Anti-Drug Abuse Act of
1986, Pub. L. No. 99-570, 100 Stat. 3207, when it created minimum and
maximum terms of imprisonment for defendants convicted of trafficking
in powder cocaine and crack cocaine. For example, 21 U.S.C.
§ 841(b)(1)(A) sets a mandatory minimum ten year sentence for those
who possess or distribute more than five kilograms of powder cocaine
and for those who possess or distribute more than fifty grams of crack
cocaine. See also USSG § 2D1.1(c)(4) (which treats the possession of
fifty grams of crack cocaine the same as it treats the possession of five
kilograms of powder cocaine). Moreover, § 841(b)(1)(B) sets a manda-
tory minimum five year sentence for those who possess or distribute
more than five hundred grams of powder cocaine and for those who pos-
sess or distribute more than five grams of crack cocaine.
UNITED STATES v. EURA 3
In 1995, 1997, and most recently in 2002, Congress declined to enter-
tain the Commission’s entreaties to narrow the ratio.
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme
Court held that the mandatory Guidelines scheme providing for sen-
tence enhancements based on facts found by the sentencing court vio-
lated the Sixth Amendment. Id. at 755-56 (Stevens, J., opinion for the
Court). The Court remedied the constitutional violation by severing
and excising the statutory provisions which mandated sentencing and
appellate review under the Guidelines, thus making the Guidelines
advisory. Id. at 756-57 (Breyer, J., opinion for the Court).
The principal question presented in this appeal is whether a district
court in the post-Booker world can vary from the advisory sentencing
range under the Guidelines by substituting its own crack
cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder
cocaine ratio chosen by Congress. For the reasons stated below, we
conclude a court cannot vary from the sentencing range in such a
manner.
I
A
On May 3, 2004, agents of the Drug Enforcement Administration
(DEA) applied for and obtained a search warrant for 353 Riverside
Manor Boulevard in Fredericksburg, Virginia. The search warrant
application in large part was based on information provided by a
cooperating source. The source, whose information had led to the
arrest of at least one other drug trafficker, told the agents that he had
been buying crack cocaine from Vincent Eura since 1996 and had
purchased crack cocaine from him as recently as March 2004.2 Most
of these purchases had occurred at Eura’s residence. In a recorded
telephone conversation on May 3, 2004, the source asked Eura if he
had any crack cocaine and Eura responded that he was "straight."
(J.A. 28). According to the source, Eura had used the term "straight"
in the past to indicate that he had crack cocaine to sell. (J.A. 28). In
2
According to the search warrant application, Eura was a "known
source of crack cocaine in the Fredericksburg area." (J.A. 28).
4 UNITED STATES v. EURA
a later conversation, the source and Eura arranged to meet that eve-
ning at Eura’s residence.
Rather than allowing the source to buy crack cocaine from Eura,
the DEA agents obtained and executed a search warrant for Eura’s
home. The search occurred at approximately 9:30 p.m. on May 3,
2004. During the search, Eura was detained and placed in handcuffs
for officer safety.
The search of Eura’s home yielded several automatic weapons but
no drugs. Eura told the agents that the weapons were his. An unidenti-
fied woman at the residence told the DEA agents that a BMW and a
Mitsubishi Diamante parked on the street belonged to Eura. A license
plate check with the Virginia Department of Motor Vehicles (DMV)
verified that the two automobiles were registered to Eura.
Special Agent William Harding testified that he spoke with Eura
about the automobiles and asked for consent to search them. Eura
refused. Agent Harding then asked a local K-9 unit to walk around the
two automobiles.
A drug detection dog alerted to Eura’s Mitsubishi Diamante, indi-
cating the presence of drugs. The DEA agents then opened the auto-
mobile and the dog alerted to the center console area. With the help
of the dog, the agents recovered eleven grams of crack cocaine and
26.6 grams of MDA (ecstacy) from the center console armrest. A fur-
ther search of the automobile resulted in the discovery of a loaded
firearm in the glove compartment.
B
On July 19, 2004, Eura was charged in a three-count second super-
seding indictment with conspiring to possess with intent to distribute
fifty grams or more of crack cocaine, 21 U.S.C. §§ 841(b)(1)(A) and
846 (Count One), possession with intent to distribute five grams or
more of crack cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count
Two), and possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c) (Count Three).
UNITED STATES v. EURA 5
Prior to trial, Eura moved to suppress the evidence obtained during
the warrantless search of his Mitsubishi Diamante. The district court
denied the motion.
Following a trial, Eura was convicted on Counts Two and Three,
but acquitted on Count One. The jury found that Eura’s conviction on
Count Two involved between five and twenty grams of crack cocaine.
On April 15, 2005, he was sentenced to 120 months’ imprisonment,
consisting of a sixty-month sentence on Count Two and a sixty-month
consecutive sentence on Count Three. Eura noted a timely appeal,
challenging his convictions. The government filed a timely cross-
appeal, challenging Eura’s sentence.
II
In his appeal, Eura contends that the warrantless search of his Mit-
subishi Diamante violated his rights guaranteed by the Fourth
Amendment. More specifically, Eura contends that, while the search
of his home was permissible pursuant to the search warrant, once the
DEA agents found no drugs in his home, the subsequent K-9 sniff of
his automobiles was not permissible under the Fourth Amendment.
The Fourth Amendment guarantees "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures." U.S. Const. amend. IV. A K-9 sniff is not
a search within the meaning of the Fourth Amendment and, thus, nei-
ther probable cause nor a warrant is required. United States v. Place,
462 U.S. 696, 706-07 (1983). However, "[r]easonable suspicion" is
required for the temporary seizure of the vehicle and any occupants
that are necessary to facilitate a K-9 sniff of the exterior of a vehicle.
United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004).
The standard of "reasonable suspicion" is not "readily, or even use-
fully, reduced to a neat set of legal rules, but, rather, entails common
sense, nontechnical conceptions that deal with factual and practical
considerations of everyday life on which reasonable and prudent per-
sons, not legal technicians, act." Id. The reasonable suspicion stan-
dard, like the probable cause standard, is a fluid concept which takes
its substantive content from the particular context in which the stan-
dard is being assessed. Id.6 UNITED STATES v. EURA
The reasonable suspicion standard "is a less demanding standard
than probable cause and requires a showing considerably less than
preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119,
123 (2000). However, under the reasonable suspicion standard, "a
minimal level of objective justification" for the police action is
required. Id.According to Eura, once the DEA agents failed to discover drugs
in his home, the only reasonable conclusions were that the confiden-
tial source was unreliable and that Eura was not a drug dealer, and,
consequently, the agents were required under the Fourth Amendment
to leave him "in peace." Appellant’s Br. at 9.
Eura’s argument founders for the simple reason that the absence of
drugs in his home is of little significance in the reasonable suspicion
analysis. On the one hand, the presence of drugs in Eura’s home cer-
tainly would have provided a reasonable basis for the DEA agents to
believe that further evidence of drug dealing would be found in
Eura’s automobiles. Common sense tells us that drug dealers often
transport drugs and other items related to drug trafficking in automo-
biles, as do other innumerable cases in which drug dealers have been
caught transporting drugs in automobiles. Thus, the presence of drugs
in Eura’s home would have provided a basis to order the K-9 sniff of
the BMW and the Mitsubishi Diamante. On the other hand, the
agents’ failure to find drugs in Eura’s home understandably meant lit-
tle, if anything, to the agents. The recorded phone conversations and
other relevant evidence made it clear that a drug transaction at the
home was imminent, making the presence of drugs in a nearby place
under Eura’s control likely. Consequently, the agents’ failure to find
drugs in Eura’s home did not prevent the agents from ordering the K-
9 sniff of the automobiles.
We are not suggesting that a search of a home for drugs pursuant
to a search warrant necessarily permits a K-9 sniff of the home occu-
pant’s automobiles. We are holding only that the following facts pro-
vided reasonable suspicion for the K-9 sniff in this case: (1) a
confidential source informed the DEA agents he had been buying
crack cocaine from Eura since 1996; (2) the source was knowledge-
able about the ways of drug dealing and had provided information on
a prior occasion that resulted in the arrest of a drug dealer; (3) Eura
UNITED STATES v. EURA 7
was known to the Fredericksburg Police Department Narcotics Unit
as a dealer of crack cocaine in the Fredericksburg area; (4) the source,
in a recorded phone conversation monitored by law enforcement,
ordered crack cocaine from Eura who indicated he was "straight,"
(J.A. 28), which, according to the source, meant he had crack cocaine
to sell; (5) the source and Eura agreed to meet at Eura’s residence on
May 3, 2004; (6) a search of Eura’s residence that evening pursuant
to a search warrant yielded no drugs but did result in the discovery
of several firearms Eura claimed to own; (7) a woman residing with
Eura informed the agents that Eura had two automobiles parked out-
side, a BMW and a Mitsubishi Diamante; and (8) a license plate
check with the DMV confirmed that the automobiles were registered
to Eura.3
Because there was reasonable suspicion to support the K-9 sniff,
the DEA agents had probable cause to search Eura’s Mitsubishi Dia-
mante once the drug detection dog alerted. United States v. Jeffus, 22
F.3d 554, 557 (4th Cir. 1994) (holding that a drug detection dog alert
on an automobile gives rise to probable cause to search the automo-
bile). Accordingly, the district court properly denied Eura’s motion to
suppress the evidence seized from his Mitsubishi Diamante.
III
On cross-appeal, the government challenges Eura’s sentence.
Before addressing the government’s argument, we take time to set
forth the relevant facts concerning the manner in which Eura was sen-
tenced.
In his Presentence Investigation Report, the probation officer con-
cluded that Eura’s offense level on Count Two was 28, resulting in
3
We also note that the absence of drugs in Eura’s residence did not
require the district court to disregard all of the information obtained by
the DEA agents that led to the search of the residence. See Foreman, 369
F.3d at 783 (holding that the termination of a traffic stop does not negate
the objectively reasonable suspicions developed by a police officer dur-
ing a traffic stop and, therefore, court should examine all of the circum-
stances surrounding the defendant’s encounter with the officer in
determining whether there was reasonable suspicion for a K-9 sniff).
8 UNITED STATES v. EURA
a sentencing range of 78 to 97 months’ imprisonment.4 At the sen-
tencing hearing on April 15, 2005, the district court noted that the
sentencing range for Count Two under the Guidelines was 78 to 97
months. The court further noted that there was a sixty-month manda-
tory minimum sentence on Count Two and a mandatory sixty-month
consecutive sentence on Count Three.
The court then noted that Eura’s sentence needed to "reflect the
seriousness of the offense, to promote respect for law and to provide
just punishment, to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and provide
the defendant with any corrective treatment." (J.A. 328). The court
also noted that it must consider pertinent policy statements by the
Sentencing Commission. The court summarized the Commission’s
1995, 1997, and 2002 reports, all of which recommended that the
100:1 ratio be narrowed.5 According to the court, it was required to
4
The probation officer noted that the jury found that Eura’s offense
involved between five and twenty grams of crack cocaine, which pro-
duced a base offense level of 26. Eura’s offense level was raised two
levels for obstruction of justice. The probation officer also noted that
Eura’s criminal history category was I.
5
For over a decade, the Sentencing Commission has urged an overhaul
of the law concerning sentences in crack cocaine and powder cocaine
cases. In 1995, the Commission submitted to Congress a proposed
amendment to the Sentencing Guidelines that would have equalized the
penalties for crack cocaine and powder cocaine. See United States v.
Perry, 389 F. Supp.2d 278, 301 (D.R.I. 2005) (discussing 1995 proposed
amendment). Congress, however, passed, and the President signed, legis-
lation disapproving the proposed amendment. See id. In a 1997 report,
the Commission essentially recommended a 5:1 ratio, to which Congress
took no action. See id. (discussing 1997 report). In 2002, the Commis-
sion once again issued a report, this time recommending what amounted
to a ratio of 20:1. See id. at 302 (discussing 2002 report). Again, Con-
gress took no action. The 2002 report emphasized, among other things,
that: (1) the feared epidemic of crack cocaine never materialized in the
way it was envisioned by Congress at the time of the passage of the
100:1 ratio; (2) the current penalties for crack cocaine offenders sweep
too broadly and apply too frequently to low level offenders, resulting in
a seemingly unintended "penalty gap" between high level and low level
offenders; (3) the 100:1 ratio overstated the seriousness of most crack
cocaine offenses and failed to provide adequate proportionality; and (4)
the 100:1 ratio disparately impacted minorities, especially blacks. See id.(discussing the Commission’s findings in the 2002 report).
UNITED STATES v. EURA 9
consider these reports in "assessing whether the punishment—
whether the sentence promotes respect for law, provides just punish-
ment, is necessary to provide a deterrence and to protect the public
and is also reflective of the seriousness of the offense." (J.A. 334).
The court found that, in view of the Commission’s reports, a sentence
within the sentencing range suggested by the Guidelines would not
reflect the seriousness of the offense, promote respect for the law, or
provide just punishment in this case. The court went on to state:
Considering all the factors, the Court finds in the case of
Mr. Eura—and I think it is appropriate to note that it is
appropriate to consider this matter as an individual matter,
not as a wholesale objection or acceptance of the guidelines.
In this instance, this is the kind of case that having consid-
ered the Sentencing Commission’s policies recommenda-
tions, it is the kind of case that the guideline does not
provide—the crack guideline does not provide an appropri-
ate, fair and just punishment, and so the Court will not
impose a sentence within the guidelines in this case.
(J.A. 335-36). Following these remarks, the court declined to sentence
Eura on Count Two within the advisory sentencing range of 78 to 97
months. Rather, the court sentenced Eura to sixty months on Count
Two, which was the lowest possible sentence on Count Two, given
the mandatory minimum sentence required for that count.6 The court
6
As noted earlier, the jury found Eura’s Count Two offense involved
between five and twenty grams of crack cocaine. At a 20:1 ratio, the ratio
recommended by the Sentencing Commission’s 2002 report, base
offense levels 18, 20, and 22 come into play, instead of offense level 26.
Using the eleven grams of crack cocaine found in the Mitsubishi Dia-
mante, the district court concluded that, had the Commission’s 2002 rec-
ommendation been adopted by Congress, Eura’s base offense level
would have been 20 (eleven grams of crack cocaine produces 220 grams
of powder cocaine under a 20:1 ratio). Adding a two-level enhancement
for obstruction of justice, Eura’s offense level would have been 22 under
the Commission’s 2002 report and would have yielded a sentencing
range of 41 to 51 months. Given the statutory minimum on Count Two,
the court could not sentence Eura within that range and, as a result, sen-
tenced Eura to the statutory minimum for that count.
10 UNITED STATES v. EURA
also imposed the mandatory consecutive sixty-month sentence on
Count Three. In imposing sentence, the court indicated that it acted
"[p]ursuant to 18 U.S.C. Section 3553(a)," that it had "considered the
guidelines as advisory," and that the chosen sentence "satisfie[d] the
prerequisites of Section 3553(a)." (J.A. 337).
On appeal, the government contends that the sentence imposed on
Eura was unreasonable because it was based on the district court’s
disagreement with the policy decisions of Congress regarding the
appropriate punishment for crack cocaine dealers. According to the
government, the sentence imposed by the court does not reflect the
seriousness of the offense, promote respect for the law, or provide just
punishment for the offense. Moreover, the government posits that the
sentence in this case unquestionably will lead to sentencing dispari-
ties.
After Booker, sentencing requires two steps. First, the district court
must consult the Sentencing Guidelines and correctly calculate the
range provided by the Guidelines. See United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005). Second, the court must consider this
sentencing range along with the other factors described in 18 U.S.C.
§ 3553(a) and then impose a sentence. Hughes, 401 F.3d at 546.7 If
a sentence within the sentencing range serves the factors set forth in
§ 3553(a), the court should impose a sentence within that range that
best serves those factors. United States v. Green, No. 05-4270, 2006
WL 267217, at *4 (4th Cir. February 6, 2006). If a sentence within
the sentencing range does not serve the § 3553(a) factors, the court
may impose a sentence outside of the sentencing range, provided it
explains "why a sentence outside of the Sentencing Guideline range
7
The other factors in § 3553(a) are: (1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the
need to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with needed educational or vocational training or medical
care; (6) the kinds of sentences available; (7) pertinent policy statements
of the Sentencing Commission; (8) the need to avoid unwarranted sen-
tencing disparities; and (9) the need to provide restitution to victims. See
18 U.S.C. § 3553(a).
UNITED STATES v. EURA 11
better serves the relevant purposes set forth in § 3553(a)." Green,
2006 WL 267217, at *4.
In determining whether a sentence is reasonable on appeal, we are
guided by the factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at
765-66. To establish the reasonableness of a sentence, a district court
need not explicitly discuss every § 3553(a) factor on the record. See
United States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005) (noting
that, in a case where the district court imposed an identical discretion-
ary sentence, "[i]t is true that the district court did not march through
§ 3553(a)’s sentencing factors, but we have never imposed such a
requirement"); United States v. Dean, 414 F.3d 725, 728 (7th Cir.
2005) (rejecting the contention that "it is the duty of the sentencing
judge, in every case and whether or not the defendant invokes any of
the factors mentioned in section 3553(a), to make an explicit, articu-
lated analysis of all of them a part of the sentencing process"). Rather,
the record must reflect that the court adequately and properly consid-
ered the § 3553(a) sentencing factors. United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005).
In this case, we are of the opinion that the district court did not ade-
quately and properly consider 18 U.S.C. § 3553(a)(6) in sentencing
Eura. Had the court done so, it most assuredly would have concluded
that it could not rely on the Sentencing Commission’s recommenda-
tions to narrow the 100:1 ratio in imposing sentence.
Section 3553(a)(6) requires the sentencing court to consider "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct."
By its plain language, § 3553(a)(6) seeks to bring about increased uni-
formity in the sentencing of similarly situated defendants. However,
giving a sentencing court the authority to sentence a defendant based
on its view of an appropriate ratio between crack cocaine and powder
cocaine would inevitably result in an unwarranted disparity between
similarly situated defendants in direct contradiction to the specific
mandate of 18 U.S.C. § 3553(a)(6). Cf. In re Sealed Case, 292 F.3d
913, 915 (D.C. Cir. 2002) (rejecting departures based on crack
cocaine/powder cocaine disparity and stating that it is "hard to imag-
ine a more flagrant violation of the Guidelines’ purpose, to avoid
unwarranted sentencing disparities among defendants with similar
12 UNITED STATES v. EURA
records who have been found guilty of similar criminal conduct")
(citation and internal quotation marks omitted); United States v.
Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995) (rejecting due process and
equal protection challenges to the 100:1 ratio).
To be sure, if left to use their own personal ratio preferences, we
envision that some sentencing courts will attempt to equalize sentenc-
ing for crack cocaine and powder cocaine offenses by reducing crack
cocaine sentences to the level of powder cocaine sentences; others
might raise powder cocaine sentences to the level of crack cocaine
sentences. Other courts will experiment with various ratios that they
might consider fair and just. See, e.g., United States v. Fisher, No. S3
03 CR 1501 SAS, 2005 WL 2542916, at *6 (S.D.N.Y. October 11,
2005) ("Given the range in ratios proposed in the past, I conclude that
a 10:1 ratio is sufficient to punish crack cocaine dealers more harshly
than those who deal in powder cocaine."); United States v. Leroy, 373
F. Supp.2d 887, 896 (E.D. Wis. 2005) (using a 20:1 ratio). Some
courts will continue to apply the 100:1 ratio. See United States v.
Tabor, 365 F. Supp.2d 1052, 1060-62 (D.Neb. 2005) (rejecting notion
that ratio other than the 100:1 ratio can be applied).
These scenarios tell us that sentencing courts should not be in the
business of making legislative judgments concerning crack cocaine
and powder cocaine. Congress has made a decision to treat crack
cocaine dealers more severely than powder cocaine dealers. Congress
has also decided to instruct sentencing courts to avoid disparate sen-
tences for crack cocaine dealers. As much as one might sympathize
with the district court’s concern regarding the inequities of the 100:1
ratio as expressed by the Sentencing Commission in its reports, it sim-
ply would go against two explicit Congressional directives to allow
sentencing courts to treat crack cocaine dealers on the same, or some
different judicially-imposed, plane as powder cocaine dealers. More-
over, allowing sentencing courts to subvert Congress’ clearly
expressed will certainly does not promote respect for the law, provide
just punishment for the offense of conviction, or result in a sentence
reflective of the offense’s seriousness as deemed by Congress.
Our decision today is supported by the First Circuit’s recent deci-
sion in United States v. Pho, where the court addressed whether a dis-
trict court could impose a sentence outside the advisory sentencing
UNITED STATES v. EURA 13
range based on its categorical rejection of the 100:1 ratio. See 433
F.3d 53 (1st Cir. 2006). The Pho court held that a district court could
not craft its own ratio as a substitute for the 100:1 ratio chosen by
Congress. Id. at 64. The court reasoned that Congress’ selection of the
100:1 ratio was a policy judgment made by Congress and that courts
were bound by this judgment. Id. at 62-63. We wholeheartedly agree
with the Pho court’s conclusion that a "district court’s categorical
rejection of the 100:1 ratio impermissibly usurps Congress’s judg-
ment about the proper sentencing policy for cocaine offenses." Id. at
63.
Of course, it does not follow that all defendants convicted of crack
cocaine offenses must receive a sentence within the advisory sentenc-
ing range. We certainly envision instances in which some of the
§ 3553(a) factors will warrant a variance from the advisory sentencing
range in a crack cocaine case. However, a sentencing court must iden-
tify the individual aspects of the defendant’s case that fit within the
factors listed in 18 U.S.C. § 3553(a) and, in reliance on those find-
ings, impose a non-Guidelines sentence that is reasonable. Moreover,
in arriving at a reasonable sentence, the court simply must not rely on
a factor that would result in a sentencing disparity that totally is at
odds with the will of Congress. Cf. United States v. Clark, No. 05-
4274, 2006 WL 60273 (4th Cir. January 12, 2006) (opinion of Luttig,
J.) (noting that the consideration of state sentencing practices in sen-
tencing a federal defendant for a 21 U.S.C. § 846 offense renders the
defendant’s sentence unreasonable in light of § 3553(a)(6)). The Sen-
tencing Commission’s recommendations to narrow the 100:1 ratio are
such impermissible factors and, thus, cannot be used as a basis to vary
from the advisory sentencing range.
In this case, while the district court was not required to discuss
each § 3553(a) factor on the record, it was required to adequately and
properly consider the factors. The court did enunciate some of the fac-
tors, but relied on the unfairness it perceived existed in the 100:1 ratio
to vary Eura’s sentence from the advisory sentencing range. The court
never adequately and properly considered § 3553(a)(6). Moreover, the
court understandably did not mention any facts concerning Eura as an
individual that would have warranted a sentence outside the sentenc-
ing range, as none existed in the record. Indeed, the record reflects
14 UNITED STATES v. EURA
that there is nothing atypical about Eura’s case that warranted a sen-
tence outside of the advisory sentencing range.
IV
For the reasons stated herein, we affirm Eura’s convictions, vacate
his sentence, and remand his case for resentencing at the low end of
the sentencing range (seventy-eight months) on Count Two and to a
consecutive sixty-month sentence on Count Three.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
MICHAEL, Circuit Judge, concurring in the judgment and concurring
in part:
I agree with the majority that the record reveals no fact about Vin-
cent Eura as an individual that would warrant a sentence below the
applicable guidelines range for his crack cocaine offense. For this rea-
son, I concur in the judgment to vacate Eura’s sentence and remand
for resentencing at the low end of the range. I also concur in part II
of the majority’s opinion upholding the warrantless search of Eura’s
car.
I write separately to discuss the practical utility of the Sentencing
Commission’s reports criticizing the substantial disparity in punish-
ment for crack and powder cocaine offenses (the "100:1 ratio" or
"crack/powder disparity"). For over a decade the Commission has rec-
ommended narrowing the 100:1 ratio on the ground that it unjustifi-
ably exaggerates the relative harmfulness of crack cocaine offenses,
particularly in relation to powder cocaine offenses. See, e.g., U.S.
Sentencing Comm’n, Special Report to the Congress: Cocaine and
Federal Sentencing Policy 10 (2002) (hereinafter "2002 Report"),
available at http://www.ussc.gov/legist.htm. The Commission’s
reports supporting this recommendation rely on an impressive array
of authority (empirical, academic, and otherwise). In some cases these
reports can be useful to courts in analyzing the factors of 18 U.S.C.
§ 3553(a), particularly those enumerated in § 3553(a)(2)(A) and (B):
the need for the sentence imposed "(A) to reflect the seriousness of
UNITED STATES v. EURA 15
the offense, to promote respect for the law, . . . to provide just punish-
ment for the offense," and "(B) to afford adequate deterrence to crimi-
nal conduct." 18 U.S.C. § 3553(a)(2)(A)-(B). I recognize that the
Commission’s reports alone cannot justify a sentence outside the
guidelines range, given the need articulated in § 3553(a)(6) to avoid
unwarranted sentencing disparities among similarly situated defen-
dants. I believe, however, that the reports can be used to support a
below-guidelines sentence that takes into account the several case-
specific factors in § 3553(a) and at the same time respects the single
factor in § 3553(a)(6).
I.
A.
In 1995 the Sentencing Commission issued a report to Congress
recommending that the 100:1 ratio between crack cocaine and powder
cocaine penalties be reduced. U.S. Sentencing Comm’n, Special
Report to the Congress: Cocaine and Federal Sentencing Policy 198
(1995), available at http://www.ussc.gov/legist.htm (hereinafter
"1995 Report"). Shortly thereafter, the Commission submitted a pro-
posed amendment to the Sentencing Guidelines that would have
equalized the penalties for crack cocaine and powder cocaine.
Amendments to the Sentencing Guidelines for United States Courts,
60 Fed. Reg. 25,074, 25,077 (U.S. Sentencing Comm’n May 10,
1995) (notice). Congress rejected this proposal but, recognizing the
need for reform, directed the Commission to make further recommen-
dations on cocaine sentencing. Act of Oct. 30, 1995, Pub. L. No. 104-
38, 109 Stat. 334. In 1997 the Commission issued another proposal
urging Congress to overhaul the crack/powder penalty scheme by
reducing the 100:1 ratio to a 5:1 ratio. U.S. Sentencing Comm’n, Spe-
cial Report to the Congress: Cocaine and Federal Sentencing Policy
2 (1997), available at http://www.ussc.gov/legist.htm (hereinafter
"1997 Report"). The Attorney General also recommended a 5:1 ratio
while the White House publicly endorsed a 10:1 ratio. See Elizabeth
Tison, Amending the Sentencing Guidelines for Cocaine Offenses, 27
S. Ill. U. L.J. 413, 427 (2003). Congress did not act on the Commis-
sion’s proposal. Finally, in 2002 the Commission again unanimously
declared the 100:1 ratio "unjustified" and urged reducing crack sen-
16 UNITED STATES v. EURA
tences to reflect a 20:1 ratio. 2002 Report, supra, at 91, 106. Again,
Congress did not act on the Commission’s recommendation.
In making its 2002 recommendation, the Sentencing Commission
reviewed scholarly articles, conducted extensive empirical and public
opinion studies, and solicited public comment from a wide range of
sources (including medical and scientific experts, federal and local
law enforcement officials, criminal justice practitioners, academics,
and civil rights activists). See 2002 Report, supra, at Appendix E.
Based on this immense body of evidence, the Commission made four
main findings. First, the 100:1 ratio exaggerates the relative harmful-
ness of crack cocaine, especially when its addictive qualities, risks of
prenatal exposure, and use by juveniles are taken into account. See id.
at v-vi. Cocaine in any form, whether as crack or powder, "produces
the same physiological and psychotropic effects." Id. at v. The only
difference is that powder cocaine is less addictive than crack cocaine
because it is snorted, but this difference alone does not warrant the
extreme differential in penalties. See id. Moreover, the "epidemic of
crack use by youth never materialized to the extent feared." Id. at vi.
In fact, use of crack cocaine among juveniles is lower than use of
powder cocaine. See id. Second, the current penalties "sweep too
broadly and apply most often to lower level offenders," resulting in
a "penalty gap" that most acutely affects low-level crack offenders
with the least criminal history. Id. at vi-vii. This penalty gap contra-
venes the basic principles of sentencing policy. See id. Third, the cur-
rent penalties overstate the seriousness of most crack cocaine offenses
and fail to provide adequate proportionality, punishing "all crack
cocaine offenders as if they committed [the] more harmful acts" asso-
ciated with only some crack offenses (namely, acts of violence). Id.
at vii. Fourth, the current penalties disproportionately target African-
American defendants, spurring a perception of racial disparity that
"fosters disrespect for and lack of confidence in the criminal justice
system." Id. at vii-viii. This disparity, furthermore, introduces irratio-
nality and "possibly harmful mischief" into the criminal justice sys-
tem because it has little to do with culpability: all crack begins as
powder cocaine and is transformed into crack through a "quick and
uncomplicated operation," generally near the point of retail sale.
United States v. Smith, 359 F. Supp. 2d 771, 780 (E.D. Wis. 2005)
(detailing testimony and other evidence before Commission); see also
U.S. Sentencing Comm’n, 60 Fed. Reg. at 25,077 ("Cocaine is
UNITED STATES v. EURA 17
imported and distributed in powder form, meaning that those persons
highest in the distribution chain — whom the Commission considers
the most culpable and the most responsible for the nation’s cocaine
problem — deal only in powder" and thus sometimes receive shorter
sentences than small-scale street dealers). Based on these findings, the
Commission "unanimously and firmly" concluded that the 100:1 ratio
was unjustified in light of congressional sentencing objectives and
should be substantially narrowed. 2002 Report, supra, at viii.
B.
It is of course significant that Congress has chosen not to enact the
Sentencing Commission’s repeated recommendations. Courts cannot
impose a below-guidelines sentence based purely on a policy dis-
agreement with the guidelines, even if this disagreement derives in
part from the Commission’s findings. It is for Congress, not the
courts, to make policy judgments about which crimes are categori-
cally worse than others. See, e.g., United States v. Evans, 333 U.S.
483, 486 (1948). As the majority correctly observes, a sentencing
court cannot systematically endorse a crack penalty ratio that it deems
more fair and just than the 100:1 ratio, whether it be 20:1, 10:1, or
5:1. Ante at 12-13; see United States v. Pho, 433 F.3d 53, 64-65 (1st
Cir. 2006).
Rather, as Booker instructs, sentencing courts must make individ-
ual sentencing decisions grounded in the factors of 18 U.S.C.
§ 3553(a). United States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738,
757 (2005). More precisely, sentencing courts must first calculate the
applicable guidelines range (after making the appropriate findings of
fact) and then consider this range along with the factors sent forth in
§ 3553(a) before imposing a sentence. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). These factors include the nature
of the offense, the history and character of the defendant, and the
needs to "reflect the seriousness of the offense," provide "just punish-
ment," "afford adequate deterrence," protect the public, and avoid
unwarranted sentencing disparities among defendants with similar
records convicted of similar conduct. 18 U.S.C. § 3553(a). As the
majority correctly notes, courts are free to depart from the advisory
guidelines range so long as the resulting sentence is reasonable in
light of the various statutory factors. Ante at 13-14. In other words,
18 UNITED STATES v. EURA
proper consideration of the § 3553(a) factors will render a sentence
reasonable.
This framework should allow a sentencing court to consider the
Sentencing Commission’s reports when analyzing the § 3553(a) fac-
tors. The Commission’s findings on the crack/powder disparity may
inform a court’s analysis of the § 3553(a) factors, particularly the
need to impose a sentence "sufficient, but not greater than necessary"
to "reflect the seriousness of the offense, . . . promote respect for the
law, . . . provide just punishment for the offense," [and] "afford ade-
quate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)(A)-(B).
As I discussed in part I.A, the Commission’s findings draw upon
extensive evidence (empirical, academic, and otherwise). The amply
supported findings are not made irrelevant simply because Congress
did not act upon them, although the congressional response (rejection
of the 1995 proposal and silence in response to the 1997 and 2002
reports) inevitably detracts from their overall significance. See, e.g.,
United States v. Perry, 389 F. Supp. 2d 278, 307-08 n.33 (D.R.I.
2005) (noting that to disregard Commission’s findings purely because
Congress failed to adopt them would raise serious Booker concerns
and that, for this reason, the congressional response to the findings,
like the entire guidelines regime, should be treated as advisory only
— as "part of the mix in applying the Guidelines on an advisory
basis"); United States v. Franklin, No. 04-4000701SAC, 2005 WL
1330959, at *1 n.1 (D. Kan. 2005) (while "disparity in the Sentencing
Guidelines between cocaine base and powder cocaine is not a valid
basis for downward departure" in the Tenth Circuit, "[t]his is not to
say that a sentencing court [post-Booker] may not consider this dis-
parity" in evaluating certain § 3553(a) factors) (internal quotation
marks and citations omitted). While the Commission’s findings alone
cannot justify a below-guidelines sentence, in certain cases they can
help sentencing courts analyze the § 3553(a) factors and select a sen-
tence that is "sufficient, but not greater than necessary" to punish,
deter, and rehabilitate the defendant. 18 U.S.C. § 3553(a). The Com-
mission’s findings, in other words, can be considered insofar as they
are refracted through an individual defendant’s case.
In Simon v. United States, for example, the district court for the
Eastern District of New York analyzed the circumstances relevant to
§ 3553(a), including the case’s unusually long procedural history and
UNITED STATES v. EURA 19
the defendant’s family circumstances, prison record, and failing
health. 361 F. Supp. 2d 35, 39-49 (E.D.N.Y. 2005). The court consid-
ered the Commission’s findings only to the extent that they applied
to § 3553(a)(2)(A) and (B): the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the law, be
"just," and provide adequate deterrence to criminal conduct. Regard-
ing the need for just punishment, § 3553(a)(2)(A), the court stated
that it must "consider society’s views as to appropriate penalties, not
just a judge’s own personal instincts." Id. at 43 (quoting Peter H.
Rossi & Richard A. Berk, United States Sentencing Commission,
Public Opinion on Sentencing Federal Crimes 6 (1995), available at
http://www.ussc.gov/nss/jp_exsum.htm)); see also Rossi & Berk,
supra, at 6 (stating that a just punishment should be "positively corre-
lated with the punishment desired by the citizens"). The Commis-
sion’s findings, insofar as they surveyed and studied public opinion
on the crack/powder disparity, thus became relevant to the court’s
consideration of the § 3553(a)(2)(A) factor. A public opinion study
sponsored by the Commission revealed that the public generally
favors "the same median sentence" for crack, heroin, and powder
cocaine offenses. Simon, 361 F. Supp. 2d at 47 (citing Rossi & Berk,
supra, at 83). Citing this study, the court explained that "[w]here such
a deviation between the Guidelines and public opinion exists, the rea-
sonableness of the sentence [that the Guidelines] recommend dimin-
ishes," meaning that a just sentence may fall below the advisory
range. Id. at 47.
Regarding the need to reflect the seriousness of the offense,
§ 3553(a)(2)(A), the Simon court considered the Commission’s find-
ing that the crack guidelines exaggerate the relative harmfulness of
crack cocaine. See id. at 47-48 (citing 2002 Report, supra, at 93). The
court cited evidence supporting the Commission’s finding: namely,
that the harms of prenatal exposure to crack cocaine and powder
cocaine are identical and less severe than originally believed and that
use by juveniles of crack cocaine is between two and seven times
lower than use of powder cocaine. See id. (citing 2002 Report, supra,
at 93-97). Nonetheless, the court recognized that crack offenses
should be punished more severely than similar powder offenses,
although not necessarily by a factor of 100, because crack is highly
addictive and its harms "fall[ ] disproportionately on some of the most
vulnerable in our community." Id. at 46 (citing 1995 Report, supra,
20 UNITED STATES v. EURA
at 35). This examination of relative harmfulness also informed the
court’s consideration of the general deterrence factor,
§ 3553(a)(2)(B), which requires consideration of the harm resulting
from the conduct to be deterred. See id. at 47-48 (citing 2002 Report,
supra, at 93-97 and Rossi & Berk, supra, at 7). The court recognized
that while the 100:1 ratio exaggerates crack’s relative harmfulness,
"[i]t is indisputable . . . that Congress has concluded that sentences
for crack-related offenses are to be lengthy, and in particular more
lengthy than similar powder cocaine offenses." Id. Ultimately, the
court determined that these related statutory factors — seriousness of
the offense and general deterrence — weighed in favor of a lengthy
sentence, one significantly longer than what the court would impose
for a similar powder cocaine offense, though not 100 times longer.
See id. at 46, 48.
In this way, the district court in Simon used the Commission’s find-
ings as a resource in its analysis of the § 3553(a)(2)(A) and (B) fac-
tors, but not to categorically reject the 100:1 ratio in favor of some
alternative ratio. See id. at 46 ("It is, however, not for this Court to
adopt a specific ratio, but instead to craft a sentence that is reasonable
and best satisfies the requirements of § 3553(a). In doing so, I rely in
part on the research of the Commission and other sources, whose
expertise in these matters is entitled to some deference."). Moreover,
Commission findings did not figure at all in the Simon court’s consid-
eration of many of the § 3553(a) factors, for example § 3553(a)(1),
which enabled the court to take into account the case’s long proce-
dural history and the defendant’s severely failing health, and
§ 3553(a)(2)(C), which enabled the court to evaluate the specific risk
of recidivism. See id. at 41-43, 47-48. The court thus invoked the
Commission’s findings to support a below-guidelines sentence that
was reasonable principally because of the individualized factors of
§ 3553(a).
The district court in Simon took care to respect § 3553(a)(6), which
highlights the need to avoid unwarranted disparities among defen-
dants with similar records who have been convicted of similar con-
duct. See id. at 48-49. The court cited a number of individualized
mitigating factors, including the defendant’s acute and worsening
medical condition and the long delay he experienced before achieving
finality, that differentiated his case from other similar cases. See id.
UNITED STATES v. EURA 21
Thus, although the court relied in part on the Commission’s findings
to impose a below-guidelines sentence, the court gave adequate con-
sideration to § 3553(a)(6) and explained the case-specific factors that
warranted a disparate sentence.
Simon illustrates that a sentencing court can use the Sentencing
Commission’s findings in considering the § 3553(a)(2)(A)-(B) factors
while still respecting § 3553(a)(6). The court satisfied Congress’s
overall sentencing goals, as reflected in § 3553(a), by using the Com-
mission’s findings to sharpen and support its consideration of case-
specific factors. These findings enabled the court to evaluate more
precisely the somewhat abstract factors in § 3553(a)(2)(A)-(B): just
punishment, seriousness of the offense, and general deterrence. By
consulting the Commission’s reports, the court drew on the accumu-
lated expertise of many who have studied or dealt with the crack
guidelines (judges, prosecutors, defense lawyers, police, medical and
scientific experts, and academics). The court thereby bolstered its
rationale for imposing a below-guidelines sentence and demonstrated
fully that the sentence imposed was reasonable in light of all of the
relevant § 3553(a) factors.
I do not mean to suggest that sentencing courts must consider the
Commission’s findings and, based on these findings, impose a below-
guidelines sentence. See United States v. Gipson, 425 F.3d 335, 337
(7th Cir. 2005) (holding that it was not error for the sentencing court
"not to have taken the [100:1] differential into account" when sen-
tencing crack offender within guidelines range); United States v.
Cawthorn, 429 F.3d 793, 802-03 (8th Cir. 2005) (adopting Seventh
Circuit’s reasoning in Gipson). Rather, I simply suggest that a sen-
tencing court does not automatically err by considering the Commis-
sion’s findings when analyzing the factors of § 3553(a), as long as
these findings do not form the sole basis for imposing a below-
guidelines sentence (by, for example, categorically endorsing a 20:1
or 10:1 ratio instead of the 100:1 ratio embedded in the guidelines).
Case-specific factors must primarily drive the sentence. See Simon,
361 F. Supp. 2d at 39-49; see also United States v. Williams, No. 05-
11594, ___ F.3d ___, 2006 WL 68559, at *4-*5 (11th Cir. Jan. 13,
2006) (upholding below-guidelines sentence for crack offense as rea-
sonable in light of § 3553(a) factors and explaining that district court
gave "specific, valid reasons" for sentence rather than "bas[ing sen-
22 UNITED STATES v. EURA
tence] solely on its disagreement with the Guidelines"). Because there
are no case-specific facts to justify a below-guidelines sentence for
Eura, I join the majority in vacating his sentence and remanding for
resentencing at the low end of the guidelines range.