Spears v. United States

Cite as: 555 U. S. ____ (2009) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

STEVEN SPEARS v. UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 08–5721. Decided January 21, 2009

PER CURIAM.

Steven Spears was found guilty of conspiracy to distrib

ute at least 50 grams of cocaine base and at least 500

grams of powder cocaine, in violation of 21 U. S. C.

§§841(a)(1), (b)(1)(A), (b)(1)(B), 846. At sentencing, the

District Court determined that the drug quantities attrib

utable to Spears yielded an offense level of 38, that his

criminal history justified placing him in the Guidelines’

criminal history category IV, and that the resulting advi

sory Guidelines sentencing range was 324 to 405 months’

imprisonment. The District Court was of the view that

the Guidelines’ 100:1 ratio between powder cocaine and

crack cocaine quantities, see United States Sentencing

Commission, Guidelines Manual §2D1.1(c) (Nov. 2006)

(USSG),* yielded an excessive sentence in light of the

sentencing factors outlined in 18 U. S. C. §3553(a). Rely

ing in part on decisions from other District Courts, see

United States v. Perry, 389 F. Supp. 2d 278, 307–308 (RI

2005); United States v. Smith, 359 F. Supp. 2d 771, 781–

782 (ED Wis. 2005), which in turn relied on a report from

the Sentencing Commission criticizing the 100:1 ratio, see

United States Sentencing Commission, Report to Con

gress: Cocaine and Federal Sentencing Policy 106–107,

App. A, pp. 3–6 (May 2002) (hereinafter Report to Con

gress), the District Court recalculated Spears’ offense level

based on a 20:1 crack-to-powder ratio. That yielded an

——————

* The Sentencing Commission has since reduced the crack-to-powder

ratio. See USSG, Supp. App. C, Amdt. 706 (Nov. 2007).

2 SPEARS v. UNITED STATES

Per Curiam

offense level of 34 and a sentencing range of 210 to 262

months’ imprisonment. The District Court sentenced

Spears to 240 months in prison, the statutory mandatory

minimum. See United States v. Spears, 469 F. 3d 1166,

1173–1174 (CA8 2006) (en banc) (Spears I).

On cross-appeal, the Government argued that “the

district court erred by categorically rejecting the 100:1

quantity ratio and substituting its own ratio in calculating

Spears’s sentence.” Id., at 1174. The Eighth Circuit

reversed Spears’ sentence and remanded for resentencing,

holding that “neither Booker nor §3553(a) authorizes

district courts to reject the 100:1 quantity ratio and use a

different ratio in sentencing defendants for crack cocaine

offenses.” Id., at 1176. This Court vacated the judgment

of the Eighth Circuit, and remanded for further considera

tion in light of Kimbrough v. United States, 552 U. S. ___

(2007). Spears v. United States, 552 U. S. ___ (2008).

On remand, the Eighth Circuit again reversed Spears’

sentence and remanded for resentencing. 533 F. 3d 715,

716 (2008) (en banc) (Spears II). It concluded, again, that

the District Court “may not categorically reject the ratio

set forth by the Guidelines,” id., at 717, and “ ‘impermissi

bly varied by replacing the 100:1 quantity ratio inherent

in the advisory Guidelines range with a 20:1 quantity

ratio,’ ” ibid. (quoting Spears I, supra, at 1178). Spears

again petitioned for a writ of certiorari. Because the

Eighth Circuit’s decision on remand conflicts with our

decision in Kimbrough, we grant the petition for certiorari

and reverse.

In Kimbrough, we held that “under Booker, the cocaine

Guidelines, like all other Guidelines, are advisory only,”

552 U. S., at ___ (slip op., at 2), and that “it would not be

an abuse of discretion for a district court to conclude when

sentencing a particular defendant that the crack/powder

disparity yields a sentence ‘greater than necessary’ to

achieve §3553(a)’s purpose, even in a mine-run case,” id.,

Cite as: 555 U. S. ____ (2009) 3

Per Curiam

at ___ (slip op., at 21) (emphasis added). The correct

interpretation of that holding is the one offered by the

dissent in Spears II:

“The Court thus established that even when a particu

lar defendant in a crack cocaine case presents no spe

cial mitigating circumstances—no outstanding service

to country or community, no unusually disadvantaged

childhood, no overstated criminal history score, no

post-offense rehabilitation—a sentencing court may

nonetheless vary downward from the advisory guide

line range. The court may do so based solely on its

view that the 100-to-1 ratio embodied in the sentenc

ing guidelines for the treatment of crack cocaine ver

sus powder cocaine creates ‘an unwarranted disparity

within the meaning of §3553(a),’ and is ‘at odds with

§3553(a).’ The only fact necessary to justify such a

variance is the sentencing court’s disagreement with

the guidelines—its policy view that the 100-to-1 ratio

creates an unwarranted disparity.” 533 F. 3d, at 719

(opinion of Colloton, J.) (citations omitted).

Kimbrough considered and rejected the position taken

by the Eighth Circuit below. It noted that “a district

court’s decision to vary from the advisory Guidelines may

attract greatest respect when the sentencing judge finds a

particular case ‘outside the “heartland” to which the

Commission intends individual Guidelines to apply.’ ” 552

U. S., at ___ (slip op., at 20–21) (quoting Rita v. United

States, 551 U. S. 338, 351 (2007)). The implication was

that an “inside the heartland” departure (which is neces

sarily based on a policy disagreement with the Guidelines

and necessarily disagrees on a “categorical basis”) may be

entitled to less respect. Our opinion said, however, that

the “crack cocaine Guidelines . . . present no occasion for

elaborative discussion of this matter because those Guide

lines do not exemplify the Commission’s exercise of its

4 SPEARS v. UNITED STATES

Per Curiam

characteristic institutional role.” 552 U. S., at ___ (slip

op., at 21). Kimbrough thus holds that with respect to the

crack cocaine Guidelines, a categorical disagreement with

and variance from the Guidelines is not suspect.

That was indeed the point of Kimbrough: a recognition

of district courts’ authority to vary from the crack cocaine

Guidelines based on policy disagreement with them, and

not simply based on an individualized determination that

they yield an excessive sentence in a particular case. The

latter proposition was already established pre-Kimbrough,

see United States v. Booker, 543 U. S. 220, 245–246 (2005),

and the Government conceded as much in Kimbrough.

552 U. S., at ___, n. 13 (slip op., at 13, n. 13). That the

Government did not prevail in Kimbrough proves that its

concession—“that a district court may vary from the 100:1

ratio if it does so ‘based on the individualized circum

stance[s]’ of a particular case,” ibid.—understated the

extent of district courts’ sentencing discretion.

In drawing a distinction between “individualized, case

specific” consideration of the Guidelines’ ratio and cate

gorical rejection and replacement of that ratio, the Eighth

Circuit relied in part, Spears II, supra, at 717, on the

following passage from Kimbrough:

“The [district] court did not purport to establish a ra

tio of its own. Rather, it appropriately framed its final

determination in line with §3553(a)’s overarching in

struction to ‘impose a sentence sufficient, but not

greater than necessary’ to accomplish the sentencing

goals advanced in §3553(a)(2).” 552 U. S., at ___ (slip

op., at 22).

This says that it was “appropriate” for the District Court

in Kimbrough not to specify what ratio it was using, but

merely to proceed with §3553(a) analysis. The Eighth

Circuit read that to mean that district courts, in the

course of their individualized determinations, may not

Cite as: 555 U. S. ____ (2009) 5

Per Curiam

categorically disagree with the Guidelines ratio, and (con

sequently) may not substitute their own ratio for that of the

Guidelines. If it meant that, our vacating of the Eighth

Circuit’s judgment in Spears I would have been inexplica

ble, because that supposedly impermissible disagreement

and substitution was precisely the reason for Spears I’s

reversal of the District Court. See Spears I, 469 F. 3d, at

1175–1176. As a logical matter, of course, rejection of the

100:1 ratio, explicitly approved by Kimbrough, necessarily

implies adoption of some other ratio to govern the mine

run case. A sentencing judge who is given the power to

reject the disparity created by the crack-to-powder ratio

must also possess the power to apply a different ratio

which, in his judgment, corrects the disparity. Put simply,

the ability to reduce a mine-run defendant’s sentence

necessarily permits adoption of a replacement ratio.

To the extent the above quoted language has obscured

Kimbrough’s holding, we now clarify that district courts

are entitled to reject and vary categorically from the crack

cocaine Guidelines based on a policy disagreement with

those Guidelines. Here, the District Court’s choice of

replacement ratio was based upon two well-reasoned

decisions by other courts, which themselves reflected the

Sentencing Commission’s expert judgment that a 20:1

ratio would be appropriate in a mine-run case. See Perry,

389 F. Supp. 2d, at 307–308; Smith, 359 F. Supp. 2d, at

781–782; Report to Congress 106–107, App. A, pp. 3–6.

The alternative approach—adopted by the Eighth Cir

cuit—would likely yield one of two results. Either district

courts would treat the Guidelines’ policy embodied in the

crack-to-powder ratio as mandatory, believing that they

are not entitled to vary based on “categorical” policy dis

agreements with the Guidelines, or they would continue to

vary, masking their categorical policy disagreements as

“individualized determinations.” The latter is institution

alized subterfuge. The former contradicts our holding in

6 SPEARS v. UNITED STATES

Per Curiam

Kimbrough. Neither is an acceptable sentencing practice.

In opposing Spears’ present petition for a writ of certio

rari, the Government contends that the Eighth Circuit’s

opinion stands only for the noncontroversial proposition

that a remand for resentencing was warranted in this case

because the District Court did not properly consider all of

the §3553(a) sentencing factors. Brief in Opposition 12–

13. But the Government did not present that argument

below, and the Eighth Circuit’s opinion plainly did not rest

on that ground. It concluded instead that “the district

court may not categorically reject the ratio set forth by the

Guidelines.” Spears II, 533 F. 3d, at 717. The Eighth

Circuit has since read its own opinion to mean what it

says, see United States v. Judon, 284 Fed. Appx. 371, 372

(2008) (per curiam), and so do we. In any event, to the

extent the District Court cut short its sentencing analysis,

it did so only because it had already determined that a

mandatory minimum sentence was required, thus mooting

any further arguments for a reduced sentence. The deci

sion not to entertain pointless arguments hardly consti

tutes procedural error.

The dissent contends, post, at 1, that the Eighth Circuit

recognized Kimbrough’s core holding when it stated that

in conducting “an individualized assessment based upon

the particular circumstances of a defendant’s case, a dis

trict court may determine the 100:1 quantity ratio results

in a harsher sentence than necessary,” Spears II, supra,

at 717. But that was not Kimbrough’s holding; it was the

Government’s position in Kimbrough, which did not pre

vail. And it is expressly contradicted by Kimbrough’s

holding that district courts are entitled to vary from the

crack-cocaine guidelines in a mine-run case where there

are no “particular circumstances” that would otherwise

justify a variance from the Guidelines’ sentencing range.

The dissent believes that “[t]his petition involves the

arguably distinct issue whether district courts that do

Cite as: 555 U. S. ____ (2009) 7

Per Curiam

disagree with the policy underlying the Guidelines may

adopt their own categorical crack-powder ratios in place of

the ratio set forth in the Guidelines.” Post, at 1. But that

is in fact not distinct from the issue we addressed in

Kimbrough. To say that the judge who considers the 100:1

ratio excessive cannot apply a different ratio is to say that

the Kimbrough-sanctioned district-court disagreement

with the 100:1 ratio cannot honestly be given effect. It is

absurd to think that a sentence which is reasonable in

light of the statutory sentencing factors, see 18 U. S. C.

§3553(a), becomes unreasonable if the sentencing judge

chooses to specify his disagreement, and the degree of his

disagreement, with the 100:1 ratio, which is the entire

basis for his Guidelines departure.

The dissent says that “Apprendi, Booker, Rita, Gall, and

Kimbrough have given the lower courts a good deal to

digest over a relatively short period.” Post, at 3. True

enough—and we should therefore promptly remove from

the menu the Eighth Circuit’s offering, a smuggled-in dish

that is indigestible. Finally, the dissent points out that

other courts have followed the Eighth Circuit’s course, see

United States v. Russell, 537 F. 3d 6, 11 (CA1 2008);

United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008).

Both of those courts, like the Eighth Circuit, seized upon

the language from Kimbrough quoted above in order to

stand by the course they had adopted pre-Kimbrough—

and in the case of the First Circuit, despite this Court’s

having vacated and remanded, in light of Kimbrough, the

prior First Circuit judgment which had established that

course. See Pho v. United States, 552 U. S. ___ (2008). If

the error of those opinions is, as we think, evident, they

demonstrate the need to clarify at once the holding of

Kimbrough.

* * *

The petition for certiorari and the motion for leave to

8 SPEARS v. UNITED STATES

Per Curiam

proceed in forma pauperis are granted. The judgment of

the Court of Appeals is reversed, and the case is remanded

for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE KENNEDY would grant the petition for a writ of

certiorari and set the case for oral argument.

JUSTICE THOMAS dissents.

Cite as: 555 U. S. ____ (2009) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

STEVEN SPEARS v. UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 08–5721. Decided January 21, 2009

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO

joins, dissenting.

I dissent from the Court’s summary reversal in this

case. As explained by the majority here and the dissent

ing judges below, there are cogent arguments that the

Eighth Circuit’s decision was contrary to our decision last

Term in Kimbrough v. United States, 552 U. S. ___ (2007).

But I do not think any error is so apparent as to warrant

the bitter medicine of summary reversal, and I think there

are good reasons not to address the question presented at

this time.

In the decision below, the Court of Appeals recognized

Kimbrough’s core holding that district courts have author

ity to depart from the Guidelines based on policy concerns:

“In considering the overall goals of sentencing under [18

U. S. C.] §3553(a) and conducting an individualized as

sessment based upon the particular circumstances of a

defendant’s case, a district court may determine the 100:1

quantity ratio results in a harsher sentence than neces

sary.” 533 F. 3d 715, 717 (CA8 2008). This petition in

volves the arguably distinct issue whether district courts

that do disagree with the policy underlying the Guidelines

may adopt their own categorical crack-powder ratios in

place of the ratio set forth in the Guidelines.

There is at least some language in Kimbrough that

seems to support the Court of Appeals’ holding. In

Kimbrough, we noted with apparent approval that the

District Court “did not purport to establish a ratio of its

own.” 552 U. S., at ___ (slip op., at 22) (emphasis added).

2 SPEARS v. UNITED STATES

ROBERTS, C. J., dissenting

Rather, we held, the District Court “appropriately framed

its final determination in line with §3553(a)’s overarching

instruction to impose a sentence sufficient, but not greater

than necessary to accomplish the sentencing goals ad

vanced in §3553(a)(2).” Ibid. (internal quotation marks

omitted).

Two other Courts of Appeals agree with the Eighth

Circuit’s interpretation of this language. See United

States v. Russell, 537 F. 3d 6, 11 (CA1 2008) (emphasizing

“the importance of individualized, case-by-case sentencing

determinations, rather than a reliance on generalized

ratios”); United States v. Gunter, 527 F. 3d 282, 286 (CA3

2008) (“a district court may not employ a ‘rubber stamp’

approach that categorically rejects the crack/powder dis

parity without an individualized assessment of the

§3553(a) factors”). The majority cites no circuit court

decision contrary to that of the Eighth Circuit in this case.

This is not the stuff of summary reversal. The majority

may well be correct that its holding today follows from

Kimbrough, but it is not clear to me that this result was

part and parcel of the holding in that case, especially in

light of the language quoted above.

At the same time, I do not believe this case meets our

normal criteria for plenary consideration. As noted, there

is no split in the lower courts on the question whether a

district court may replace the crack-powder ratio in the

Guidelines with a categorical ratio of the court’s own

choosing. And, as explained above, I do not think the

Court of Appeals has “so far departed from the accepted

and usual course of judicial proceedings . . . as to call for

an exercise of this Court’s supervisory power.” S. Ct. Rule

10(a). In other words, this is exactly the sort of issue that

could benefit from further attention in the courts of ap

peals. We should not rush to answer a novel question

about the application of a one-year-old decision in the

absence of a pronounced conflict among the circuits.

Cite as: 555 U. S. ____ (2009) 3

ROBERTS, C. J., dissenting

Apprendi, Booker, Rita, Gall, and Kimbrough have given

the lower courts a good deal to digest over a relatively

short period. We should give them some time to address

the nuances of these precedents before adding new ones.

As has been said, a plant cannot grow if you constantly

yank it out of the ground to see if the roots are healthy.