United States v. Corner

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1033

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

V INCENT C ORNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:07-cr-00104-bbc—Barbara B. Crabb, Chief Judge.

S UBMITTED E N B ANC M ARCH 3, 2010—D ECIDED M ARCH 17, 2010

Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,

R IPPLE, K ANNE, R OVNER, W OOD , E VANS, W ILLIAMS,

S YKES, T INDER, and H AMILTON, Circuit Judges.

E ASTERBROOK, Chief Judge. Vincent Corner pleaded guilty

to possessing more than five grams of cocaine base, with

intent to distribute it. He was sentenced to 188 months’

imprisonment as a career offender under U.S.S.G. §4B1.1.

A panel concluded that the career-offender classification

was correct, 588 F.3d 1130 (7th Cir. 2009), and affirmed

the sentence in light of United States v. Welton, 583 F.3d

2 No. 08-1033

494 (7th Cir. 2009), which held that district courts are not

entitled to disagree with §4B1.1. The effect of Welton is

that, although judges may disagree with the Guidelines’

equation of crack cocaine to 20 or more times the

quantity of powder cocaine, see Kimbrough v. United States,

552 U.S. 85 (2007), they are bound by the crack/powder

ratio when the defendant also is a career criminal—because

28 U.S.C. §994(h) requires the Sentencing Commission to

ensure that the Guidelines for career offenders are at or

near the statutory maximum sentences, and the conver-

sion ratio affects the statutory maximum (and minimum)

sentences under 21 U.S.C. §841.

Kimbrough authorizes district judges to disagree with

the Sentencing Commission but not with statutes. We

held in Welton that two statutes in combination, rather

than the Sentencing Commission’s choices, require the

lengthy sentences for career offenders who distribute

crack cocaine. Section 841 treats 1 gram of crack as equiva-

lent to 100 grams of powder cocaine. The maximum

penalty for distributing five grams of crack is 40 years,

§841(b)(1)(B)(iii), while the maximum for five grams of

powder is 20 years, §841(b)(1)(C). Thus §994(h) directs

the Sentencing Commission to issue a Guideline that

the sentence of a career offender who distributes five

grams of cocaine base should be roughly twice the sen-

tence of a career offender who distributes five grams

of cocaine hydrochloride.

Corner filed a petition for rehearing en banc limited to

the question whether a district judge is entitled to

disagree with the career-offender Guideline. The United

No. 08-1033 3

States has confessed error and asked us to overrule

Welton. In the Supreme Court, the Solicitor General con-

fessed error in United States v. Vazquez, 558 F.3d 1224 (11th

Cir. 2009), on which Welton had relied. The Justices vacated

Vazquez and remanded for reconsideration in light of

the Solicitor General’s position, 2010 U.S. L EXIS 736

(U.S. Jan. 19, 2010)—a step that, though it does not en-

dorse the Solicitor General’s views, indicates receptivity

to them. The Solicitor General’s support for Corner’s

position, and the vacatur of Vazquez, occurred after

Welton and were not considered in that decision. Al-

though, as we observed in Buchmeier v. United States, 581

F.3d 561, 565–66 (7th Cir. 2009) (en banc), it is rarely

appropriate to overrule circuit precedent just to move

from one side of a conflict to another, reconsideration is

more appropriate when this circuit can eliminate the

conflict by overruling a decision that lacks support else-

where. With Vazquez vacated, this circuit stands alone,† and

†

At least four courts of appeals have concluded that sentencing

judges may disagree with the policy behind §4B1.1. See United

States v. Michael, 576 F.3d 323, 327–28 (6th Cir. 2009); United

States v. Clay, 524 F.3d 877, 878 (8th Cir. 2008); United States v.

Boardman, 528 F.3d 86 (1st Cir. 2008); United States v. Sanchez, 517

F.3d 651, 664–65 (2d Cir. 2008). Cf. In re Sealed Case, 548 F.3d

1085, 1087 (D.C. Cir. 2008), which assumes that this view is

sound. Welton cited United States v. Jimenez, 512 F.3d 1, 8 (1st Cir.

2007), as a decision holding that sentencing judges may not

disagree with §4B1.1, but Boardman shows that the first circuit

itself does not read the language in Jimenez that way. (The

crack/powder ratio was irrelevant in Jimenez because the

(continued...)

4 No. 08-1033

a fresh look at the subject is in order. See Owens v. United

States, 387 F.3d 607, 611 (7th Cir. 2004); United States v.

Carlos-Colmenares, 253 F.3d 276, 277–78 (7th Cir. 2001);

United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995). We

grant the petition for rehearing en banc.

United States v. Booker, 543 U.S. 220 (2005), holds that

the Sentencing Guidelines are advisory and that judges

may vary from their recommendations as long as they

respect all statutory requirements. Before Kimbrough most

circuits, including this one, thought that the 100-to-1 ratio

between crack and powder cocaine then used in the

Guidelines (the ratio was reduced in 2007 by Amendment

706) must be treated as a statutory rule, not only because

the 100-to-1 ratio comes from §841 but also because the

Sentencing Commission’s efforts to change the ratio in

the Guidelines had been rejected by statutes disap-

proving proposed amendments. See United States v.

Miller, 450 F.3d 270 (7th Cir. 2006). Kimbrough disagreed

with that understanding and concluded that the ratio in

the Guidelines is the work of the Sentencing Commission

rather than Congress, and that district judges may use

their own assessments of the appropriate ratio rather

than the Sentencing Commission’s.

When some circuits held, in the wake of Kimbrough,

that judges may vary from the Guidelines’ crack/powder

(...continued)

defendant distributed so much cocaine that the statutory

maximum sentence, and therefore the sentence recommended

by §4B1.1, would have been life imprisonment even if all of

his sales had been cocaine powder.)

No. 08-1033 5

ratio only if the facts of particular cases make its applica-

tion unjust, the Court responded that a sentencing

court’s power is general: “district courts are entitled to

reject and vary categorically from the crack-cocaine

Guidelines based on a policy disagreement with those

Guidelines.” Spears v. United States, 129 S. Ct. 840, 843–44

(2009). We understand Kimbrough and Spears to mean that

district judges are at liberty to reject any Guideline on

policy grounds—though they must act reasonably when

using that power. As we remarked in United States

v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009), “[t]he

allowable band of variance is greater after Booker than

before, but intellectual discipline remains vital. ‘[A]

motion to [a court’s] discretion is a motion, not to its

inclination, but to its judgment; and its judgment is to be

guided by sound legal principles.’ United States v. Burr, 25

F. Cas. 30, 35 (No. 14692d) (C.C. Va. 1807) (Marshall, C. J.).”

So long as a district judge acts reasonably, however, the

Sentencing Commission’s policies are not binding.

Our opinion in Welton relied on the Supreme Court’s

observation in Kimbrough that “Congress has shown that

it knows how to direct sentencing practices in express

terms. For example, Congress has specifically required the

Sentencing Commission to set Guidelines sentences for

serious recidivist offenders ‘at or near’ the statutory

maximum. 28 U.S.C. § 994(h).” 552 U.S. at 103. We under-

stood this to imply that U.S.S.G. §4B1.1, which imple-

ments §994(h), should be treated as a statute for the

purpose of Booker and Kimbrough. (As we recognized in

United States v. Knox, 573 F.3d 441, 449–50 (7th Cir. 2009),

§4B1.1 covers more offenses than §994(h) requires. To the

6 No. 08-1033

extent of the difference between the statute and the

Guideline, the latter reflects the Sentencing Commission’s

own policy and so is covered by Kimbrough and Spears on

any understanding.)

Further reflection has led us to conclude that the Justices’

reference to §994(h) in Kimbrough does not equate §4B1.1

with either §994(h) or the statutory maximum sentence

that the career-offender Guideline must be “at or near.”

The Court made two related points in Kimbrough: first,

the crack/powder ratio in the Guidelines was the choice

of the Commission rather than Congress; second, district

judges are entitled to disagree with the Commission’s

policy choices, as long as the judges follow all statutes.

The reference to §994(h) in Kimbrough concerned the

first of these points rather than the second; and it is

the second, reiterated in Spears, that controls the career-

offender issue. It follows that a district judge is

bound by the three-strikes provision in the Armed Career

Criminal Act, 18 U.S.C. §924(e), but not the three-strikes

provision in the career-offender Guideline.

Sentencing judges must implement all statutes, whether

or not the judges agree with them—but all §994(h) requires

is that the Sentencing Commission set the presumptive

sentencing range for certain serial criminals at or near

the statutory maximum. Guideline 4B1.1 in turn pro-

vides a benchmark that every judge must take into ac-

count. See Rita v. United States, 551 U.S. 338, 351 (2007); Gall

v. United States, 552 U.S. 38, 49 (2007). The need to consider

this reference point does not imply that the sentence

must be within the Guideline range—indeed, Rita adds

No. 08-1033 7

that a district judge must not begin with a presumption

that each case should be within the range. 551 U.S. at 351.

A sentencing judge needs to understand the Commission’s

recommendations, which reflect (among other things)

the goal of avoiding unwarranted disparities in how

different judges treat equivalent offenses and offenders.

18 U.S.C. §3553(a)(6); United States v. Bartlett, 567 F.3d 901,

907–09 (7th Cir. 2009). But Booker, Kimbrough, and Spears

conclude that a judge who understands what the Com-

mission recommends, and takes account of the multiple

criteria in §3553(a), may disagree with the Commission’s

recommendation categorically, as well as in a particular

case. Because §4B1.1 is just a Guideline, judges are as free

to disagree with it as they are with §2D1.1(c) (which sets

the crack/powder ratio). No judge is required to sentence

at variance with a Guideline, but every judge is at liberty

to do so.

Several statutes raise the sentences of recidivists. See

United States v. Wicks, 132 F.3d 383, 385 (7th Cir. 1997)

(listing some of these laws). Sentencing judges must

honor these statutes punctiliously. But §994(h) does not

set a floor under sentences; it sets a floor under one of the

Sentencing Guidelines. That the floor in §4B1.1 is linked

to the statutory maximum sentence for the crime of

conviction does not make §4B1.1 itself a statute; it

remains a Guideline. Booker, Kimbrough, and Spears hold

that the floors (and ceilings) in Guidelines are not legally

binding. We overrule Welton to the extent it holds that

§4B1.1 differs from other Guidelines. The decisions on

which Welton principally relied, including United States

v. Harris, 536 F.3d 798, 813 (7th Cir. 2008); United States

8 No. 08-1033

v. Clanton, 538 F.3d 652, 660 (7th Cir. 2008); and United

States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009),

likewise are overruled on this issue.

Corner’s sentence is vacated, and the case is remanded

for resentencing.

3-17-10