United States v. Gouge, Anthony L.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 16, 2005
Decided February 8, 2006
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1044
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Western District of Wisconsin.
v.
No. 04 CR 119
ANTHONY L. GOUGE,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Anthony Gouge pled guilty to a charge of distributing cocaine base in
violation of 21 U.S.C. § 841(a)(1). In his written plea agreement, Gouge
acknowledged that the government could prove that his relevant conduct involved as
much as 20 grams of crack. The presentence report recommended that Gouge’s
relevant drug quantity for sentencing purposes was 23 grams, based upon five sales
to confidential informants and the testimony of several witnesses before the grand
jury. Sentencing took place during the six-month interval between this court’s
decision in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and the Supreme
Court’s decision in the same case, United States v. Booker, 543 U.S. 220 (2005).
No. 05-1044 Page 2
Prior to sentencing, Gouge did not specifically object to the factual basis
underlying the PSR’s recommendation that he be held responsible for 23 grams of
crack; he argued instead that under this court’s Booker decision, a jury was required
to determine whether he was responsible for anything more than the 20 grams to
which he had stipulated in his plea agreement. This was his only objection to the
sentencing proceedings. The district court, anticipating the Supreme Court’s Booker
decision, fashioned a discretionary sentence utilizing the criteria found in 18 U.S.C.
§ 3553(a) and consulting the Sentencing Guidelines in an advisory capacity only.
The court’s discretionary sentence was 78 months—right in the middle of the
advisory guidelines range of 70-87 months.
On appeal Gouge contends for the first time that his sentence is unreasonable
under Booker because the applicable guidelines regime—which punishes
distribution of 1 gram of crack commensurate with the distribution of 100 grams of
powdered cocaine—is itself unreasonable. See U.S.S.G § 2D1.1(c)(4). He contends
that the 100:1 ratio is unsupported by any cogent crime prevention or
pharmaceutical rationale, impacts minorities disproportionately, is based upon
outdated and incorrect assumptions about the relative harm posed by the two forms
of cocaine, and is generally the subject of widespread criticism. Gouge argues that
any sentence premised upon such an unjustifiable sentencing disparity is
unreasonable.
Whatever merit may have existed in Gouge’s argument at the time he filed his
appeal has dissipated with this court’s decision in United States v. Gipson, 425 F.3d
335 (7th Cir. 2005), which considered and rejected the precise position Gouge
advances here. Gipson had argued, as does Gouge, that his sentence was
unreasonable within the meaning of Booker because of the “grossly disproportionate”
sentence disparity between crack and powder in the Sentencing Guidelines. Id., 425
F.3d at 337. Noting that this circuit had “routinely upheld the [crack/powder]
differential against constitutional attack . . . and, under the pre-Booker guideline
system, rejected wholesale downward departures from the guidelines on this basis,”
the court in Gipson found no error in the district court’s failure to account for the
crack/powder differential in fashioning a discretionary sentence. Id. Stated
differently, the court declined Gipson’s invitation to hold all guidelines sentences in
crack cases unreasonable by virtue of the crack/powder differential. Id.Our holding in Gipson disposes of the only argument on appeal. Accordingly,
Gouge’s sentence is AFFIRMED.