United States v. Marcus Welton

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3799
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS L. W ELTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08 CR 39—Barbara B. Crabb, Chief Judge.
A RGUED JUNE 1, 2009—D ECIDED O CTOBER 2, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
E VANS, Circuit Judges.
B AUER, Circuit Judge. After pleading guilty to distribut-
ing crack cocaine, Marcus L. Welton was sentenced as
a career offender to 188 months’ imprisonment. On
appeal, Welton contends that resentencing is necessary
in light of the Supreme Court’s decision in Kimbrough v.
United States, 128 S. Ct. 558, 564 (2007), which recognized
a district court’s authority to consider the sentencing
2 No. 08-3799
disparity between crack and powder cocaine offenses
in fashioning a sentence. We affirm.
I. BACKGROUND
On two separate occasions in the Summer of 2007,
Welton sold crack cocaine totaling approximately
41 grams to an undercover agent with the Madison,
Wisconsin Police Department. Welton pleaded guilty to
a single count of distributing more than five grams of
cocaine in violation of 21 U.S.C. § 841(a)(1).
Under the Sentencing Guidelines, Welton qualified as
a career offender based on two prior felony drug con-
victions. See U.S.S.G. § 4B1.1(a). After a three-level reduc-
tion for acceptance of responsibility, Welton’s total offense
level was 31, which, when paired with a criminal history
of VI, yielded an advisory Guidelines range of 188-235
months.
At his sentencing hearing, Welton requested a below-
Guidelines sentence based on the crack/powder cocaine
disparity. Welton acknowledged that he met the
technical definition of a career offender, but argued that
the designation and resulting range were too severe in
his case.
The district court dismissed Welton’s argument based
on the severity of the crack/powder disparity. The
court also rejected Welton’s claim that he was unfairly
subject to career offender penalties; the court noted
Welton’s extensive criminal history, including two
prior drug trafficking convictions and numerous misde-
No. 08-3799 3
meanor convictions that resulted in a criminal history
category of VI. The court also noted that the Guidelines
were advisory and that it would consider the factors in
18 U.S.C. § 3553(a) when sentencing Welton. Ultimately,
the court found that a term of imprisonment of
188 months was reasonable and no greater than neces-
sary to hold him accountable, protect the community,
provide opportunity for rehabilitative programs, and
achieve parity with the sentences of similarly situated
offenders. Welton filed a timely appeal.
II. DISCUSSION
Welton argues that the district court should have con-
sidered the Guidelines’ crack/powder disparity as a
basis for imposing a below-Guidelines sentence even
though he was sentenced as a career offender. He argues
that the Supreme Court’s decision in Kimbrough, which
held that the disparity between crack and powder
cocaine is advisory and therefore within a district court’s
discretion to consider, should apply equally to a
defendant who is sentenced as a career offender. See
Kimbrough, 128 S. Ct. at 564.
We review sentences for reasonableness in light of the
statutory factors provided by 18 U.S.C. § 3553(a). Gall v.
United States, 128 S. Ct. 586, 594 (2007); United States v.
Padilla, 520 F.3d 766, 771 (7th Cir. 2008). We presume
that a sentence within a correctly calculated Guidelines
range is reasonable. United States v. Panaigua-Verdugo, 537
F.3d 722, 727 (7th Cir. 2008). In considering what would
be a reasonable sentence, the district court must give
4 No. 08-3799
meaningful consideration to nonfrivolous sentencing
arguments. United States v. Cunningham, 429 F.3d 673,
679 (7th Cir. 2005).
As Welton notes, a district court may weigh the Guide-
lines’ disparate treatment of crack and powder cocaine
as part of its consideration of § 3553(a)(6), the need to
avoid sentencing disparities. Kimbrough, 128 S. Ct. at 564.
Kimbrough explained that a district court may generally
consider policy disagreements with the advisory Guide-
lines, provided that the Court does not disregard statutes
such as mandatory minimums and maximums. See id.
at 570-71. Since the Guidelines’ crack/powder disparity
does not result from a Congressional mandate, see id. at
571-72, a district court may determine that a within-
Guideline sentence is greater than necessary to serve
the objectives of sentencing. See id. at 575.
Here, Welton contends that Kimbrough’s holding
should be extended to include defendants sentenced as
career offenders. But applying the reasoning above,
Welton’s argument must fail. Unlike the crack/powder
disparity, the career offender Guideline range is the
product of a Congressional mandate. As Kimbrough
noted, Congress “specifically required the Sentencing
Commission to set Guidelines sentences for serious
recidivist offenders ‘at or near’ the statutory maximum.”
Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from
the career offender Guideline range based on a policy
disagreement necessitates that a sentencing court
disregard those statutory maximums. This asks more of
a sentencing court than it can deliver because, “while
No. 08-3799 5
the Sentencing Guidelines may be only advisory for
district judges, congressional legislation is not.” United
States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008).
We have been down this road before. In Harris, we
held that Kimbrough has no effect on a sentence entered
under the career offender Guideline, § 4B.1.1. Harris,
536 F.3d at 813; see also United States v. Millbrook, 553 F.3d
1057, 1067 (7th Cir. 2009) (“Kimbrough’s discussion of a
district court’s discretion to take into account the
crack/powder disparity is of no consequence to a
defendant sentenced under § 4B.1.1 as a career of-
fender.”); United States v. Clanton, 538 F.3d 652, 660 (7th
Cir. 2008) (“[A] sentence entered under the career
offender Guideline, § 4B.1.1, raises no Kimbrough prob-
lem. . . .” (quoting Harris, 536 F.3d at 813)). It is true
that defendants sentenced as career offenders are
affected by a policy of harsher sentences for crack
offenses because the statutory maximums referenced by
§ 4B.1.1(b) retain a 100:1 crack/powder disparity. See 21
U.S.C. § 841(b)(1)(a)(ii)-(iii) (imposing a maximum
sentence of life imprisonment for drug offenses
involving both 50 grams of crack and 5 kilograms of
powder cocaine). But as we stressed in Harris, the
statutory origin of the disparity embedded in § 4B.1.1
removes that disparity from the sentencing discretion
provided by Kimbrough. Harris, 536 F.3d at 813.
Our focus on the statutory origin of the crack/powder
disparity embedded in § 4B.1.1 is consistent with other
circuits’ views that Kimbrough provides no basis for
career offenders to challenge their Guidelines sentence.
6 No. 08-3799
See United States v. Jimenez, 512 F.3d 1, 8 (1st Cir. 2007)
(noting that Kimbrough did not benefit a defendant sen-
tenced as a career offender); United States v. Vazquez, 558
F.3d 1224, 1228 (11th Cir. 2009) (declining to read
Kimbrough “to suggest that district courts may base
their sentencing decisions on any disagreement they
may have with the policy behind the career offender
Guidelines, which are directly driven by Congressional
pronouncement”); cf. United States v. Sanchez, 517 F.3d
651, 664-65 (2d Cir. 2008) (observing that while 28 U.S.C.
§ 994(h) does not require a district court to sentence a
career offender “at or near the statutory maximum,” the
court is not “free to ignore the Congressional policy
reflected in that section”).
In his brief, Welton urges us to resolve what he
considers to be an “intra-circuit split” on this issue,
arguing that our decision in Harris is in conflict with
United States v. Hearn, 534 F.3d 706 (7th Cir. 2008). Welton
correctly notes that in Hearn, we remanded Hearn’s case
for reconsideration in light of Kimbrough, notwithstanding
the fact that Hearn had been sentenced as a career of-
fender. Hearn, 534 F.3d at 714-15. But Welton fails to
place Hearn in its proper context. Before Kimbrough,
our circuit precedent prevented district courts from con-
sidering the crack/powder disparity as a basis for
choosing a below-Guidelines sentence. See United States
v. Miller, 450 F.3d 270, 274-75 (7th Cir. 2006). After
Kimbrough, we established remand procedures for crack
offenders who, like Hearn, were sentenced prior to
Kimbrough. In cases in which the crack/powder disparity
challenge had been preserved, we granted a full remand.
No. 08-3799 7
See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir.
2008). In cases where the challenge had not been
preserved adequately, we permitted a limited remand in
order to allow the district court to indicate whether it
would have selected a different sentence had it known of
its discretion. Id. It is true that our decision in Hearn
assumed, without deciding, that Kimbrough applied to
defendants sentenced as career offenders. Hearn, 534
F.3d at 714-15. However, Hearn pre-dated Harris, in
which we explicitly found that Kimbrough does not
apply to defendants sentenced under the career offender
Guideline. Moreover, in light of our decision in Harris,
we granted the government’s petition for rehearing in
Hearn and held that a remand was not required despite
the sentencing disparity for crack cocaine. United States
v. Hearn, 549 F.3d 680, 684 (7th Cir. 2008).
Yet, while Hearn does nothing to undercut our holding
in Harris, we are aware that one of our recent decisions
may appear to do so. In United States v. Liddell, 543 F.3d
877, 880-82 (7th Cir. 2008), Liddell advanced a similar
argument on appeal as Welton does here: that the district
court should have considered the severity of the
crack/powder disparity even though he was sentenced
as a career offender. Citing Harris, the court first noted
that Liddell’s argument was problematic because the
only crack/powder disparity that affected his sentence
under § 4B.1.1 was the product of a statute. Id. at 882-83.
Nonetheless, the court then recognized what it called the
defendant’s “more nuanced” argument of whether a
district court “can consider the disparity as a reason for
issuing a below-guideline sentence.” Id. at 883. This
8 No. 08-3799
contention was ultimately rejected because Liddell did not
raise it below, and any error by the district court in
failing to consider his Kimbrough challenge was not
plain. Id. at 883, 885.1
The discussion in Liddell of a career offender’s
Kimbrough argument is admittedly inconsistent with our
holding in Harris, causing confusion as to whether a
district court may consider the crack/powder disparity
as a basis for imposing a sentence outside the career
offender Guidelines range. Upon further consideration,
we conclude that Liddell’s rationale is irreconcilable
with Harris and unsupported by other authority on the
scope of the sentencing discretion provided by Kimbrough.
In Liddell, the court under-read Harris as merely reaf-
firming that Kimbrough “did not change the way court’s
calculate career offender guideline ranges.” 543 F.3d at
883. This reading overlooks Harris’ emphatic point that
Kimbrough does not authorize a district court to disagree
with the statutory authority embedded in § 4B.1.1. Harris
addressed not whether Kimbrough affects how a district
court calculates a sentencing range under § 4B.1.1, but
whether, given a properly calculated range, Kimbrough
allows consideration of the disparity as a mitigating
sentencing factor. See Harris, 536 F.3d at 813. In fact,
1
Because our decision overrules Liddell, we have circulated it
to the full court as required by our Circuit Rule 40(e).
Judge Rovner, Judge Wood and Judge Williams voted to hear
the case en banc and their dissent follows. The remaining
judges in regular active service voted not to hear the case
en banc.
No. 08-3799 9
there was no real doubt in Harris as to whether a district
court could alter its Guidelines calculation based on
the disparity, see id. at 806 (noting that the defendant
did not object to the calculations of his sentencing
range under § 4B.1.1), since the first step in any sen-
tencing decision is “correctly calculating the applicable
Guidelines range,” Gall, 128 S. Ct. at 596. By indicating that
a crack career offender Guidelines sentence “raises no
Kimbrough problem,” Harris, 536 F.3d at 813, we closed
the door on any hope of a crack/powder disparity
policy disagreement affecting such a sentence.
We also think that Liddell’s observation that 28 U.S.C.
§ 994(h) does not require the imposition of a sentence
at or near the applicable statutory maximum, 543 F.3d at
883-84, ignores the fact that this statute nonetheless
reflects a Congressional policy with which a sentencing
court may not disagree. Indeed, the Supreme Court in
Kimbrough cited § 994(h) as an example of an instance
where Congress has expressly incorporated a sentencing
policy into the Guidelines. Kimbrough, 128 S. Ct. at 571; see
also Vazquez, 558 F.3d at 1228 (“[T]he Supreme Court
expressly made a distinction between the Guidelines’
disparate treatment of crack and powder cocaine of-
fenses—where Congress did not direct the Sentencing
Commission to create the disparity—the Guidelines’
punishment of career offenders—which was explicitly
directed by Congress.”).
Moreover, the cases from other circuits mentioned in
Liddell, see 543 F.3d at 884, provide no support for the
concept that a court can do indirectly what a Congressional
10 No. 08-3799
enactment has precluded them from doing directly. While
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008), and
United States v. Sanchez, 517 F.3d 651, 663 (2d Cir. 2008),
stand for the proposition that a sentencing court is not
required to sentence a crack career offender within the
§ 4B.1.1 range, neither case holds, nor even suggests, that
a court can consider the crack/powder disparity in choos-
ing a sentence outside a properly calculated range.
Because the discussion in Liddell relied on a misunder-
standing of our prior precedent in Harris and did not
adequately recognize that the career offender crack/
powder disparity is the result of a legislative act, we do not
believe that Liddell’s suggestion that career offenders
may challenge their Guidelines sentence based on the
disparity is entitled to precedential value. To the extent
that Liddell is inconsistent with Harris’ holding that a
district court may not rely on the 100:1 crack/powder
disparity embedded in § 4B.1.1 as a basis for imposing a
non-Guidelines sentence, we disavow that portion of
our decision in that case.
To be clear, the fact that a district court may not
disagree specifically with the statutory disparity
embedded in § 4B.1.1 does not mean that the court may
only impose a sentence that is within the career offender
Guidelines range. As we cautioned in Harris, our analysis
“should not be read to suggest that § 4B.1.1 is any less
advisory for a district judge than the other sentencing
guidelines.” Harris, 536 F.3d at 813; see also Liddell, 543
F.3d at 883-84 (observing that no Congressional statute
makes § 4B.1.1 mandatory for sentencing courts, and that
No. 08-3799 11
the Supreme Court has consistently reaffirmed the ad-
visory nature of the Sentencing Guidelines); Martin, 520
F.3d at 96 (upholding a career offender’s below-
Guidelines sentence as a permissible deviation from the
Guidelines’ policy of punishing recidivism); Sanchez, 517
F.3d at 663 (concluding that “there is no statutory provi-
sion instructing the court to sentence a career offender
at or near the statutory maximum” in accordance with
§ 4B.1.1). District courts retain discretion to give career
offenders a non-Guidelines sentence based on their con-
sideration of the factors enumerated in § 3553(a). See
Millbrook, 553 F.3d at 1067.
Welton received a sentence within an appropriately
calculated career offender Guidelines range. Kimbrough,
which addressed the crack/powder disparity embedded
in § 2D1.1, has no effect on Welton’s sentence. Since
career offenders have no sentencing challenge based on
the severity of the crack/powder disparity, we find that
Welton is not entitled to resentencing in light of Kimbrough.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the judg-
ment and sentence of the district court.
12 No. 08-3799
E VANS, Circuit Judge, concurring. As Judge Bauer’s
persuasive opinion makes perfectly clear, Liddell and
Harris can no longer (if they ever could) live comfortably
together. One, or the other, has to move out. And, given
the impressive array of authority marshaled in today’s
opinion, that somebody has to be Liddell. But for the
reasons noted in Liddell, Congress should take a look at
this issue because the ugly hand of the 100-to-1 discrim-
inatory crack-to-powder-cocaine ratio is still at work in
cases like this.
W ILLIAMS, Circuit Judge, with whom R OVNER and W OOD ,
Circuit Judges, join, dissenting. The Supreme Court has
held unequivocally that all guidelines are advisory and
that courts may issue below-guideline sentences based
on policy disagreements with the crack/powder dispar-
ity. Nonetheless, the panel believes there are some excep-
tions to these rules. Because the panel opinion imposes
impermissible limits on a judge’s discretion in applying
the Sentencing Guidelines, I believe it is out of step with
the Supreme Court’s decisions in Booker and Kimbrough.
I.
Several years ago, this court adopted the position that
a judge could not consider the crack/powder disparity
when making sentencing decisions. Our justification at
No. 08-3799 13
the time was that the 100-to-1 ratio appeared in the
drug offense guideline by legislative decision, and that
the court was not free to disagree with Congressional
policy. See United States v. Miller, 450 F.3d 270, 275 (7th Cir.
2006). Kimbrough rejected this line of reasoning and held
that a judge could consider the crack/powder disparity
to determine whether a sentence was greater than neces-
sary to achieve § 3553(a)’s purposes. Kimbrough v.
United States, 128 S. Ct. 558, 575 (2007). But with this
opinion, the court has essentially repackaged its argu-
ments in Miller and applied it to the career offender
guidelines, maintaining, once again, that a district court
cannot take the crack/powder disparity into account.
To reconcile this decision with Supreme Court
precedent, the panel attempts to distinguish the drug
offense guideline, § 2D1.1, from the career offender guide-
line, § 4B1.1, and exempt the latter from Kimbrough’s
broad pronouncement. For one, the panel relies on the fact
that the disparity in § 2D1.1 does not result from a Con-
gressional mandate, while the disparity in § 4B1.1 does.
But this reads too much into the statute. The Congressional
directive in 28 U.S.C. § 994(h) directs the Sentencing
Commission to promulgate a guideline that specifies
sentences for career offenders “at or near the maximum
term authorized” in the statute. We explained in Liddell
that nothing in § 994(h) tells a court how to sentence
a career offender, or requires it to adhere to the
crack/powder disparity. As the panel notes, Kimbrough
cites § 994(h) as an example of an express directive to the
Sentencing Commission, but this does not mean that
sentencing courts are similarly bound. 128 S. Ct. at 571
(“[C]ongress has specifically required the Sentencing
14 No. 08-3799
Commission to set Guideline sentences for serious recidi-
vists ‘at or near’ the statutory maximum. 28 U.S.C.
§ 994(h).”). At most, § 994(h) requires that those sen-
tences be the starting point for a district court assessing
the appropriate term of imprisonment. See Gall v. United
States, 128 S. Ct. 586, 596 (2007) (“[T]he guidelines
should be the starting point and the initial benchmark.”).
I do not believe Congress limits the courts’ discretion
through directives to the Sentencing Commission.
This does not “ignore” the argument that “[§ 994(h)] . . .
reflects a Congressional policy” that binds sentencing
courts, Op. at 9; it simply disagrees. The panel opinion
assures us that § 4B1.1 is no less advisory than other
guidelines, Op. at 10-11, but also maintains that a sen-
tencing court cannot deviate from the career offender
guideline for policy reasons. Op. at 4. I cannot reconcile
these two positions. Section 994(h) is a comprehensive
statute. It guides the formation of the guideline sen-
tence and the category of defendants to whom it
applies, stating specifically:
The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or
near the maximum term authorized for categories of
defendants in which the defendant is eighteen years
old or older and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Con-
trolled Substances Act (21 U.S.C. 841), sections 1002(a),
1005, and 1009 of the Controlled Substances Import
No. 08-3799 15
and Export Act (21 U.S.C. 952(a), 955, and 959), and
chapter 705 of title 46; and
(2) has previously been convicted of two or more
prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Con-
trolled Substances Act (21 U.S.C. 841), sections 1002(a),
1005, and 1009 of the Controlled Substances Import
and Export Act (21 U.S.C. 952(a), 955, and 959), and
chapter 705 of title 46.
28 U.S.C. § 994(h). The panel cannot have it both ways.
If courts cannot base sentencing decisions on disagree-
ments with the 100-to-1 ratio—which is implicit in the
maximum terms referenced by § 994(h)—then, following
the panel’s logic, disagreements with the severity of the
sentences “at or near the maximum term” should also
be off limits. So which part of the career offender
guideline remains advisory? The panel recognizes that
a sentencing judge may still exercise his discretion to
issue a below-guideline sentence. Op. at 10-11. But, to
me, this simply reinforces that judges may take into
account their disagreement with the disproportionate
sentences proposed for crack cocaine defendants. To
hold otherwise would be inconsistent with the require-
ment that § 4B1.1 remain completely advisory.
If, for instance, a court were to consider a defendant’s
history or the nature of his crime (factors permitted
under 18 U.S.C. § 3553(a)(1)) in issuing a below-
guideline sentence, would that determination amount to
an unauthorized policy disagreement with the direc-
16 No. 08-3799
tive? Section 994(h) clearly specifies that defendants
convicted of certain crimes (who meet other criteria)
should be subject to a guideline range at or near the
statutory maximum penalty, and a court that deviates
from this range is essentially saying that the guideline
sentence is too high. But surely the panel would not
find this application of § 3553(a) objectionable. Alterna-
tively, if a court wanted to rely on § 3553(a)(6) and issue
a below-guideline sentence to avoid any “unwarranted
sentencing disparities” between individual defendants,
is it prohibited from doing so whenever the disparity
originates from § 994(h)’s directive?
The problem with the panel’s reasoning is that it can be
applied to prohibit any determination, individualized or
otherwise, that a career offender’s guideline sentence is
excessive—notwithstanding the fact that a sentencing
court’s discretion to reach this conclusion is the
prominent feature of an advisory rather than mandatory
guideline. Booker requires that § 4B1.1 be no less
advisory than other guidelines. See United States v.
Booker, 543 U.S. 220, 266-67 (2005). And the panel’s holding
cannot be reconciled with this principle, not when it
circumscribes the discretion sentencing courts have
normally exercised.
Indeed, I recognize that the impetus behind the
panel’s interpretation of § 994(h) is the fear of rejecting
Congressional policy, but this court has once again
taken this principle too far. When Congress wanted to
prescribe the factors courts should consider in making
sentencing decisions, it enacted 18 U.S.C. § 3553(a), which
states, in part: “[t]he court in determining the particular
No. 08-3799 17
sentence to be imposed, shall consider . . . .” (emphasis
added). Similarly, when Congress wanted to make
certain portions of the Commission’s policy statements
binding on courts, it said so explicitly in 18 U.S.C.
§ 3582(c)(2) (prescribing conditions for modification of
an imposed term of imprisonment). That statute states
that for eligible defendants, “the court may reduce the
term of imprisonment . . . if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.” See also 18 U.S.C. § 3553(b)
(2003) (“[T]he court shall impose a sentence of the kind,
and within the range, referred to in subsection(a)(4) . . . .”)
abrogated by United States v. Booker, 543 U.S. 220 (2005);
21 U.S.C. § 841 (setting mandatory maximum and mini-
mum sentences for certain offenses). Congress has, and
continues, to limit the courts’ sentencing discretion. In
these instances, Congress speaks to the court and speaks
clearly. It did not do so in § 994(h).
Instead, § 994(h) spoke to the Sentencing Commission,
and the Commission adopted the same approach in
formulating guideline ranges in drug cases for both
regular and career offenders. In fact, the Commission
looked to 21 U.S.C. § 841(b)(1) when it created the drug
offense guideline—the same statute on which the career
offender guideline ranges for drug offenders rely.
Kimbrough, 128 S. Ct. at 567, 575 (“In formulating Guide-
lines ranges for crack cocaine offenses . . . the Commission
looked to the mandatory minimum sentences set in the
1986 Act, and did not take account of ‘empirical data and
national experience.’ ”) (citing United States v. Pruitt, 502
F.3d 1154, 1171 (10th Cir. 2007)); see also U.S. Sentencing
Guidelines Manual § 2D1.1 cmt. n.10 (2005) (“The Com-
18 No. 08-3799
mission has used the sentences provided in, and equiva-
lences derived from, the statute (21 U.S.C. § 841(b)(1)), as
the primary basis for the guideline sentences.”). Even so,
the Supreme Court held that a sentencing judge had the
discretion to depart from the drug offense guideline
based on a policy disagreement with the then-existing 100-
to-1 ratio. See Kimbrough, 128 S. Ct. at 575-76. The
disparity between the crack and powder cocaine
advisory ranges in both §§ 2D1.1 and 4B1.1 originates
from the same statute, and I see no functional difference
between the two guidelines.
The panel opinion cannot be reconciled with the Su-
preme Court’s emphasis on the discretion afforded to
district courts when making sentencing decisions. On
the contrary, it has thrust upon the courts yet another
sentencing quagmire: a guideline that is supposed to be,
but is not completely, advisory. It did so despite clear
pronouncements in Booker and Kimbrough that all guide-
lines are advisory. For the reasons stated in those cases,
I cannot agree with this outcome.
II.
It is clear that the issues raised in this case implicate
significant questions of law that have divided judges
both within our circuit and around the country. Contrary
to the panel’s assertion, the only thing a survey of our
sister circuits makes clear is that the relationship
between § 994(h) and the career offender guideline is
unsettled. The Sixth Circuit, for instance, addressed
this same issue in United States v. Michael, 576 F.3d 323
No. 08-3799 19
(6th Cir. 2009). There, the court held that a sen-
tencing judge can disagree with the crack/powder
disparity incorporated in § 4B1.1, just as it may dis-
agree with the disparity in § 2D1.1(c), and can take this
disagreement into account when sentencing career of-
fenders. Id. at 327-28. Its discussion rejected many of the
same arguments the panel makes today. Indeed, the
First and Eleventh Circuits have concluded that
Kimbrough provides no relief to defendants sentenced
under § 4B1.1, see United States v. Jimenez, 512 F.3d 1, 9
(1st Cir. 2007); United States v. Vazquez, 558 F.3d 1224, 1228-
29 (11th Cir. 2009), but the Sixth and Eighth Circuits
have stated that sentencing courts are authorized to
consider the crack/powder disparity when sentencing
career offenders. Michael, 576 F.3d at 328; United States
v. Clay, 524 F.3d 877, 878 (8th Cir. 2008); see also United
States v. Cole, No. 07-5563, slip op. at 6 (6th Cir. Aug. 21,
2009) (disagreeing with the Seventh Circuit’s rea-
soning in Harris).
Even among federal prosecutors, the panel’s position
finds opposition. Notably, the government’s brief in this
case expressly acknowledged that “[d]istrict courts are
free to consider the crack cocaine versus powder cocaine
disparity when sentencing defendants who are career
offenders.” Brief of the United States at 14-15, United
States v. Welton, No. 08-3799 (7th Cir. May 13, 2009). It
simply argued that the district court did not err when
it chose not to do so. Similarly, in United States v. Funk,
the Department of Justice and the local United States
Attorney conceded, in their response to the defendant’s
petition for rehearing, that sentencing courts have the
discretion to issue a below-guideline sentence based on
20 No. 08-3799
a policy disagreement with the career offender guide-
line, despite the directive in § 994(h).2
While the law is in dispute, the effect of the career
offender guideline on crack cocaine defendants is
clear. And a district court would certainly be justified in
finding that the guideline range results in a term of im-
prisonment that is greater than necessary for § 3553(a)’s
purposes. Support for this position is well documented.
The Sentencing Commission’s own reports had long
questioned the propriety of the 100-to-1 ratio that is still
2
The Sixth Circuit had originally held that a district court’s
failure to include a defendant’s prior marijuana conviction in
determining whether he was a career offender amounted to
an unlawful rejection of Congressional policy. See United
States v. Funk, 534 F.3d 522 (6th Cir. 2008). However, the court
later granted rehearing en banc and vacated the opinion
following the government’s concessions. In particular, the
government stated:
Congress’s direction to the Commission in Section 994(h)
does not, however, preclude sentencing courts from
varying based on policy disagreements with the career
offender guideline . . . . Thus, as with other guidelines,
courts may vary from the range recommended by the
career offender guideline based on policy considerations,
including “disagreements” with the guideline.
Corrected Response of the United States to Defendant’s Petition
for Rehearing En Banc at 8-9, United States v. Funk, No. 05-3708
(6th Cir. Oct. 9, 2008); see also Supplemental Brief for the
United States at 13, United States v. Funk, No. 05-3708 (6th
Cir. Jan. 15, 2009).
No. 08-3799 21
reflected in the statutory maximum terms, and also in
the career offender guideline. See United States Sen-
tencing Commission, Fifteen Years of Guidelines Sen-
tencing 132-34 (2004), http://w w w .ussc.gov/
15_year/chap4.pdf. The Commission has acknowledged
that when the 100-to-1 ratio was implemented, the
majority of crack cocaine defendants who received sen-
tences greater than five years were low-level street
dealers, and for no other drug are low-level dealers
subject to such harsh sentences. Id. It also reports that
the recidivism rates for defendants sentenced under
the career offender guidelines based on prior drug traf-
ficking convictions are much lower than those of other
offenders who receive a criminal history category of VI or
offenders with one or more violent offenses. Id. at 134.
As a result, the Commission concluded that under the
career offender guideline, a defendant’s criminal
history category is a “less perfect measure of recidivism
risk” when applied to defendants who qualify solely
because of prior drug trafficking charges. Id. (emphasis
added). These are all factors that may affect a district
court’s analysis under § 3553(a), the consideration of
which this court has now foreclosed.
The Supreme Court has made clear that sentencing
judges retain wide discretion after they satisfy their
initial obligation to calculate the advisory guideline
range. Gall, 128 S. Ct. at 596. Kimbrough held that
this discretion extended to policy disagreements with
the crack/powder disparity, and the Supreme Court
soundly reaffirmed this principle in Spears v. United
States, 129 S. Ct. 840 (2009). To me, the panel’s approach
22 No. 08-3799
is inconsistent with Booker and Kimbrough. I share
Judge Evans’s hope that Congress takes a close look at
this issue. In the interim, in light of the lengthy sentences
at stake, hopefully the Supreme Court will resolve this
circuit split.
10-2-09