United States v. Reginald Davis

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-4101, 06-4376 & 07-1813

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A RMEAN K NOX, A NTHONY K NOX,

AND R EGINALD D AVIS,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04-CR-818—Amy J. St. Eve, Judge.

A RGUED S EPTEMBER 18, 2008—D ECIDED JULY 20, 2009

Before E ASTERBROOK, Chief Judge, and S YKES and

T INDER, Circuit Judges.

T INDER, Circuit Judge. Defendants Reginald Davis,

Anthony Knox, and Armean Knox 1 made a deal to buy

fourteen semi-automatic handguns for the bargain price

1

For clarity, we will refer to the Knox defendants as “An-

thony” and “Armean.”

2 Nos. 06-4101, 06-4376 & 07-1813

of 2 1/4 ounces of crack cocaine. As their unfortunate

luck would have it, the seller was an undercover agent.

After being arrested on various drugs and weapons

charges, each defendant pleaded guilty to conspiracy to

distribute more than 50 grams of crack. On appeal, the

defendants raise several challenges to the reasonable-

ness of their sentences, including that Kimbrough v.

United States, 128 S. Ct. 558 (2007), entitles them to

resentencing.

I. Background

A. Facts

On three separate occasions between June and Septem-

ber 2004, Davis sold between one-quarter and one-half

ounces of crack cocaine to an undercover agent with the

Bureau of Alcohol, Tobacco, and Firearms (“ATF”). During

each of these meetings, Davis expressed an interest in

purchasing handguns from the agent. At the third

meeting, Davis introduced the agent to Anthony, and the

two defendants negotiated a deal to pay $2000 cash for

one .45-caliber and thirteen .38-caliber guns. Armean

also met the agent at this meeting when he delivered the

crack for purchase.

On September 9, 2004, Davis and Armean met with the

agent again to discuss the guns purchase, and the agent

suggested that the defendants pay for the guns with 2

1/4 ounces of crack instead of $2000 cash. Davis and

Armean readily agreed to this payment term, since,

according to the defendants, that quantity of crack was

Nos. 06-4101, 06-4376 & 07-1813 3

worth only about $1000 to $1400. Davis indicated that he

could easily supply the requested 2 1/4 ounces, telling the

agent that “if you want two and a split that’s nothing.”

During this meeting, Davis called Anthony, who also

agreed to the change in payment.

On September 16, 2004, Anthony and Armean delivered

61.5 grams 2 of crack to the agent in exchange for the

fourteen guns. ATF agents arrested Anthony and

Armean on site immediately after they received the

guns, and Davis was later arrested in December 2004.

The government obtained an indictment charging

Davis, Anthony, and Armean with one count of con-

spiracy to possess with intent to distribute and to distrib-

ute more than 50 grams of crack cocaine, in violation

of 21 U.S.C. § 846, and several counts of intentionally

distributing crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Additionally, the indictment charged Anthony

and Armean each with one count of being felons in posses-

sion of firearms, in violation of 18 U.S.C. § 922(g)(1). The

indictment also charged Davis with conspiring with

another individual to possess with intent to distribute

and to distribute more than five grams of crack cocaine,

but the government later dismissed the charges against

that individual. The defendants pleaded guilty without

plea agreements. Each defendant pleaded guilty to the

conspiracy to distribute more than 50 grams of crack

cocaine, and Anthony and Armean pleaded guilty to

the firearms possession counts. The government subse-

2

61.5 grams equals 2.17 ounces.

4 Nos. 06-4101, 06-4376 & 07-1813

quently dismissed all of the distribution counts against

the defendants and the other conspiracy count against

Davis.

B. Sentencing Proceedings

The defendants were sentenced between December 2006

and March 2007. Under the Sentencing Guidelines, Davis

qualified as a career offender based on three of his prior

felony drug convictions, see U.S.S.G. § 4B1.1(a), resulting

in a criminal history category of VI and an offense level

of 37, see id. § 4B1.1(b)(A) (applying an offense level

of 37 for offenses with statutory maximums of life im-

prisonment); 21 U.S.C. § 841(b)(1)(A)(iii) (imposing a

maximum sentence of life imprisonment for drug

offenses involving 50 grams or more of crack). After a

three-level reduction for acceptance of responsibility,

see U.S.S.G. § 3E1.1, Davis’ total offense level was 34,

yielding an advisory guidelines sentencing range of 262-

327 months. This sentencing range was higher than what

Davis would have received had he been sentenced as a

non-career offender under the drug-offense guideline,

§ 2D1.1; although Davis’ criminal history category was

VI even before the application of § 4B1.1, his offense level

was higher under § 4B1.1.

At his sentencing hearing, Davis asked for a below-

guidelines sentence based on the Guidelines’ 100:1 dispar-

ity between sentences for crack- and powder-cocaine

Nos. 06-4101, 06-4376 & 07-1813 5

offenses,3 the ATF agent’s use of sentencing entrap-

ment and manipulation, and Davis’ cooperation with the

government. Davis also presented substantial evidence

of his unstable childhood and his family’s history of

substance abuse, as well as expert testimony of Davis’

mental illness.

The district court dismissed Davis’ argument based on

the severity of the crack/powder disparity, citing then-

binding circuit precedent precluding the court from

relying on that disparity as a basis for imposing a sen-

tence below the guidelines range. See United States v. Miller,

450 F.3d 270, 275 (7th Cir. 2006), abrogated by Kimbrough

v. United States, 128 S. Ct. 558 (2007). The court also

rejected Davis’ claims of sentencing entrapment, sentenc-

ing manipulation, and cooperation with the govern-

ment. The court did, however, give substantial credit

to Davis’ evidence of his difficult childhood and history

of mental illness. Concluding that these factors made it

reasonable to deviate from the Guidelines, the court gave

Davis a below-guidelines sentence of 220 months.

3

Under the drug-offense guideline applicable at the time of the

defendants’ sentencing hearings, an offense involving a given

quantity of crack triggered the same sentencing range as an

offense involving 100 times that quantity of powder cocaine.

See U.S. Sentencing Comm’n, Guidelines Manual § 2D1.1(c)(4)

(2005) (applying equal base offense levels to drug offenses

involving 50 grams of crack and 5 kg of powder cocaine). The

Sentencing Commission has since amended the drug-offense

guideline to reduce this crack/powder disparity. See

U.S.S.G. app. C, amend. 706 (Supp. 2007), available at http://

www.ussc.gov/2007guid/appc2007.pdf.

6 Nos. 06-4101, 06-4376 & 07-1813

Anthony, like Davis, qualified as a career offender

under § 4B1.1, resulting in a criminal history category of VI

and an offense level of 37. After a three-level reduction

under § 3E1.1 for acceptance of responsibility, Anthony’s

total offense level was 34, yielding an advisory guide-

lines sentencing range of 262-327 months. As in Davis’

case, this sentencing range was higher than what Anthony

would have received under § 2D1.1 as a non-career of-

fender; although Anthony’s criminal history category

was VI even before the application of § 4B1.1, his

offense level was higher under § 4B1.1.

At the sentencing hearing, Anthony argued for a below-

guidelines sentence based on the severity of the Guide-

lines’ 100:1 crack/powder disparity and the ATF agent’s

use of sentencing manipulation. The district court did not

accept these arguments and imposed a minimum-guide-

lines sentence of 262 months.

Armean, unlike his co-defendants, did not qualify as a

career offender; his sentence for the drug offense was

determined by § 2D1.1. Because the guns purchase in-

volved a quantity of crack between 50 and 150 grams,

Armean’s base offense level was 32.4 After a two-level

enhancement for the possession of a dangerous weapon,

4

A base offense level of 32 resulted from the district court’s

correct application of the drug quantity table of § 2D1.1 that

predated the Sentencing Commission’s 2007 amendment of

that guideline. Under the current version of § 2D1.1, a crack

quantity between 50 and 150 grams corresponds to a base

offense level of only 30. See U.S.S.G. § 2D1.1(a)(3), (c)(5).

Nos. 06-4101, 06-4376 & 07-1813 7

see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction

for acceptance of responsibility under § 3E1.1, Armean’s

total offense level was 31. His criminal history category

was IV, yielding an advisory guidelines sentencing

range of 151-188 months. The district court imposed a

guidelines sentence of 165 months.

C. Arguments on Appeal

On appeal, all three defendants argue that the district

court should have considered the Guidelines’

crack/powder disparity as a basis for reducing their

sentences. They claim that the Supreme Court’s decision

in Kimbrough v. United States, 128 S. Ct. 558, 564 (2007),

which held that the disparity is advisory and therefore

within a district court’s discretion to consider, entitles

them to resentencing. Davis and Anthony also argue that

the district court failed to sufficiently address their sen-

tencing entrapment and manipulation claims. Finally,

Davis raises several additional challenges to the reason-

ableness of his sentence, which we describe in greater

detail below.

II. Analysis

We review the district court’s sentencing decisions for

an abuse of discretion. Gall v. United States, 128 S. Ct. 586,

597 (2007); United States v. Clanton, 538 F.3d 652, 659

(7th Cir. 2008). After ensuring that the district court

committed no procedural error such as failing to

properly calculate the guidelines range or consider the

8 Nos. 06-4101, 06-4376 & 07-1813

sentencing factors of 18 U.S.C. § 3553(a), we examine the

substantive reasonableness of the sentence. Gall, 128 S. Ct.

at 597; Clanton, 538 F.3d at 659. In determining whether

a guidelines sentence is reasonable, the district court

should consider all of the § 3553(a) factors and “make

an individualized assessment based on the facts pre-

sented.” Gall, 128 S. Ct. at 597.

A. The Impact of Kimbrough and the Crack/Powder

Disparity on Career Offenders

1. The Effect of Kimbrough on Davis’ and

Anthony’s Sentences

After the defendants in this case were sentenced,

the Supreme Court held in Kimbrough v. United States,

128 S. Ct. 558, 564 (2007), that district courts may con-

sider the crack/powder disparity embedded in the drug-

offense guideline, § 2D1.1, as a basis for choosing a below-

guidelines sentence. The Court explained that a district

court may generally consider policy disagreements

with the advisory Guidelines, provided that the court

does not disregard statutes such as mandatory mini-

mums and maximums. See id. at 570-71. Since the Guide-

lines’ crack/powder disparity does not result from a

congressional mandate, see id. at 571-72, “it would not

be an abuse of discretion for a district court to conclude”

that the disparity “yields a sentence ‘greater than neces-

sary’ to achieve § 3553(a)’s purposes . . . .” Id. at 575.

Before Kimbrough, our circuit precedent prevented

district courts from considering the crack/powder

Nos. 06-4101, 06-4376 & 07-1813 9

disparity as a basis for choosing a below-guidelines

sentence. See United States v. Miller, 450 F.3d 270, 274-75

(7th Cir. 2006). To correct the prejudicial effects of Miller,

we have established remand procedures for crack

offenders sentenced prior to Kimbrough. Offenders who

did not raise a challenge to the crack/powder disparity

at sentencing are entitled to a limited remand,

allowing the district court to indicate whether it would

have selected a different sentence had it known of its

discretion under Kimbrough. United States v. Taylor, 520

F.3d 746, 747-49 (7th Cir. 2008). Offenders who did chal-

lenge the disparity at sentencing are entitled to a full

remand and resentencing. Clanton, 538 F.3d at 659.

We have previously granted these remands only to

offenders sentenced under the drug-offense guideline,

§ 2D1.1, as opposed to the career offender guideline,

§ 4B1.1. See id. at 659-60. Although career offenders are

subject to a 100:1 crack/powder sentencing disparity,

that disparity does not originate in the advisory drug-

offense guideline at issue in Kimbrough. Instead, it is the

operation of mandatory statutes that subjects career

offenders to the policy of harsher sentences for crack-

cocaine offenses. Congress has directed that career of-

fenders convicted of offenses “described in” certain,

enumerated statutes, including 21 U.S.C. § 841, be sen-

tenced “at or near the maximum term authorized” for

the offense. 28 U.S.C. § 994(h)(1)(B). To implement this

directive, the career offender guideline prescribes base

offense levels that track the statutory maximums of the

offense of conviction. U.S.S.G. § 4B1.1(b). For convic-

tions of drug offenses under 21 U.S.C. § 841, the

10 Nos. 06-4101, 06-4376 & 07-1813

applicable statutory maximums treat a given quantity of

crack cocaine the same as 100 times that quantity of

powder cocaine for sentencing purposes. 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 kg of powder cocaine). It is this

statutory penalty provision, incorporated into the Guide-

lines pursuant to another statute, 28 U.S.C. § 994(h),

wherein the 100:1 crack/powder disparity affecting

career offenders lies.

Relying on the statutory origin of the crack/powder

disparity embedded in § 4B1.1, we held in United States

v. Harris, 536 F.3d 798, 813 (7th Cir. 2008), that Kimbrough

had no effect on a career offender’s sentence. We

reasoned that, although a sentencing disparity might

occur under § 4B1.1 based on the type of cocaine

involved, that disparity “is the product of a discrepancy

created by statute.” Id. at 812-13. “While the sentencing

guidelines may be only advisory for district judges,

congressional legislation is not.” Id. 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 § 4B1.1 as a

career offender.”); Clanton, 538 F.3d at 660 (“[A] sentence

entered under the career offender guideline, § 4B.1.1, raises

no Kimbrough problem . . . .” (quoting Harris, 536 F.3d

at 813)).

Given our holding in Harris, it may seem that Davis

and Anthony, both career offenders sentenced under

Nos. 06-4101, 06-4376 & 07-1813 11

§ 4B1.1, are not entitled to resentencing in light of

Kimbrough. However, these defendants cite United States

v. Liddell, 543 F.3d 877 (7th Cir. 2008), in support of their

argument that a district court may rely on the

crack/powder disparity as a basis for imposing a sen-

tence below the career offender guidelines range. After

being sentenced as a career offender, Liddell argued on

appeal that the district court should have considered the

severity of the crack/powder disparity. Id. at 880, 882.

Citing Harris, the court first noted that Liddell’s argu-

ment was problematic because the only crack/powder

disparity that affected his sentence under § 4B1.1 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 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; see also United States v. Hearn, 549 F.3d 680, 684 (7th

Cir. 2008) (rejecting the defendant’s “more nuanced

argument based on Kimbrough” under a plain-error stan-

dard of review (quoting Liddell, 543 F.3d at 883)).

Liddell is difficult to reconcile with Harris, but it is not

necessary to resolve the tension between these cases

today because Davis and Anthony are entitled to

resentencing for a reason not present in either case. Unlike

the defendants in Harris and Liddell, the defendants

in this case pleaded guilty to conspiracy under 21 U.S.C.

§ 846 but not to the substantive offense under 21 U.S.C.

12 Nos. 06-4101, 06-4376 & 07-1813

§ 841. See Harris, 536 F.3d at 802 (conviction of distrib-

uting crack cocaine under § 841(a)); Liddell, 543 F.3d at

879 (guilty plea to possession with intent to distribute

under § 841(a)). It is true that drug distribution or posses-

sion with the intent to distribute was the object of the

Knox and Davis conspiracy, but that is of no con-

sequence here. As mentioned above, the congressional

directive that career offenders be sentenced “at or near”

the statutory maximum applies only to certain,

enumerated offenses of conviction. 28 U.S.C. § 994(h).

Although substantive distribution offenses under § 841

are among the listed offenses, conspiracy offenses under

§ 846 are not. Id. § 994(h)(1)(B). Moreover, the precision

with which § 994(h) includes certain drug offenses

but excludes others indicates that the omission of § 846

was no oversight.

Section 994(h)(1)(B) provides a narrow list of drug

offenses that require the “at or near the maximum” career

offender treatment, including distribution under § 841,

importation of certain controlled substances under 21

U.S.C. § 952(a), and manufacturing and distributing on

board vessels under 46 U.S.C. § 70503. The statute also

omits several significant drug offenses, including the

use of a communication facility to facilitate a drug

offense under 21 U.S.C. § 843(b) and simple possession

under 21 U.S.C. § 844. Perhaps the best example of the

statute’s precision is the inclusion of only those importa-

tion offenses involving the most harmful drugs. Section

994(h) includes 21 U.S.C. § 952(a), which prohibits the

importation of schedule I and II controlled substances

and narcotic drugs under schedules III, IV, and V, but

Nos. 06-4101, 06-4376 & 07-1813 13

carefully excludes 21 U.S.C. § 952(b), which prohibits

the importation of nonnarcotic schedule III, IV, and V

substances.

Also telling is § 994(h)’s inclusion of a conspiracy

offense other than § 846. The statute incorporates all

maritime drug offenses “described in . . . chapter 705 of

title 46.” 28 U.S.C. § 994(h)(1)(B). That chapter includes,

among other things, a penalty provision for “attempts and

conspiracies” to manufacture controlled substances on

board vessels. 46 U.S.C. § 70506(b). If Congress wanted to

include the Controlled Substances Act’s analogous § 846

conspiracy provision, it knew how to do so. And simply

reading § 846 offenses into § 994(h) would undermine

Congress’s intent to exclude certain drug offenses from

the statute’s reach. Since § 846 prohibits any attempt or

conspiracy “to commit any offense defined in this

subchapter,” incorporating § 846 into § 994(h) would

include through the back door as the object of a con-

spiracy substantive drug offenses, such as simple posses-

sion of a controlled substance in violation of 21 U.S.C.

§ 844, that Congress specifically omitted from the “at

or near the maximum” directive.

Based on the deliberate manner in which § 994(h)

includes specific drug offenses but excludes others,

Congress did not intend to include § 846 offenses

among those requiring sentences “at or near” the

statutory maximum. Because § 846 is not included in

this statutory mandate, § 994(h) does not limit a district

court’s discretion under Kimbrough to consider the

crack/powder disparity affecting a career offender con-

victed under § 846.

14 Nos. 06-4101, 06-4376 & 07-1813

True, the career offender guideline itself draws no

distinction between § 841 and § 846 offenses for sentencing

purposes. U.S.S.G. § 4B1.2 cmt. n.1 (defining the drug

offenses qualifying for career-offender treatment to

include “the offenses of aiding and abetting, conspiring,

and attempting to commit such offenses”). Relying on

its “general guideline promulgation authority under

28 U.S.C. § 994(a)-(f),” the Sentencing Commission has

gone beyond the specific offenses listed in § 994(h) and

included § 846 conspiracy offenses in § 4B1.1. U.S.S.G.

§ 4B1.1 cmt. bkgd. Courts have repeatedly recognized

that this exercise of the Commission’s authority under

§ 994 was valid. E.g., United States v. Damerville, 27 F.3d 254,

257 (7th Cir. 1994); United States v. Mendoza-Figueroa, 65

F.3d 691, 693-94 (8th Cir. 1995) (en banc). Indeed, the

Senate Report to § 994(h) provides that the statute is

“not necessarily intended to be an exhaustive list of

types of cases in which . . . terms at or close to

authorized maxima should be specified.” S. Rep. No. 98-

225, at 176 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,

3359; see also Mendoza-Figueroa, 65 F.3d at 694 (relying

on legislative history to conclude that § 994(h) “is ample

authority to include drug conspiracies as qualifying

offenses”). Moreover, since the statutory penalties for

conspiracy offenses under § 846 and substantive offenses

under § 841 are the same, the Commission had good

reason to go beyond the specific mandate of § 994(h) and

include conspiracy offenses in the career offender guide-

line. Damerville, 27 F.3d at 257; United States v. Jackson,

60 F.3d 128, 133 (2d Cir. 1995).

Still, although the Commission had the authority to

include drug conspiracy offenses under § 846 in the

Nos. 06-4101, 06-4376 & 07-1813 15

career offender guideline, nothing in the text of § 994(h)

requires the Commission to do so. See Damerville, 27 F.3d

at 257 (“Section 994(h) provides the minimum obligation

of the Commission and does not prohibit the inclusion

of additional offenses that qualify for such treatment.”);

United States v. Piper, 35 F.3d 611, 618 (1st Cir. 1994)

(explaining that only those offenses listed in § 994(h)

comprise “the irreducible minimum that the Commission

must do by way of a career offender guideline”);

United States v. Heim, 15 F.3d 830, 832 (9th Cir. 1994) (“The

Commission’s decision to go beyond the mandate of

§ 994(h) is . . . consistent with the legislative history to

§ 994(h).” (emphasis added)). So the Commission’s deci-

sion to include conspiracy offenses in the career offender

guideline—and thereby subject § 846 offenders to the

crack/powder disparity contained in the statutory maxi-

mums—reflects an exercise of discretion. See United

States v. Allen, 24 F.3d 1180, 1186 (10th Cir. 1994) (“Section

994(h) does not, by mandating enhancement for certain

crimes, preclude the Commission from enhancing others

if it is within the Commission’s grant of discretion to

do so.”). Such policy decisions made by the Commission

in developing the Guidelines are not binding on sen-

tencing courts. See Kimbrough, 128 S. Ct. at 570-71 (observ-

ing that no congressional act prevented sentencing

courts from disagreeing with the crack/powder disparity

embedded in § 2D1.1); United States v. Spears, 129 S. Ct. 840,

843 (2009) (per curiam) (Kimbrough recognized “district

courts’ authority to vary from the crack cocaine Guide-

lines based on policy disagreement with them . . . .”).

Since no congressional statute requires that a career

offender convicted of a conspiracy offense under 21 U.S.C.

16 Nos. 06-4101, 06-4376 & 07-1813

§ 846 be sentenced “at or near” the statutory maximum,

sentencing courts have the discretion under Kimbrough

to consider the crack/powder disparity affecting such

an offender’s sentence. It follows that Davis and

Anthony, who both pleaded guilty to conspiracy under

§ 846 but not to the substantive drug offense under § 841,

are entitled to a remand for resentencing in light of

Kimbrough.

2. The Effect of the 2007 Amendment Reducing

the Guidelines’ Crack/Powder Disparity on Davis’

and Anthony’s Sentences

Related to their Kimbrough argument, Davis and

Anthony argue that they are entitled to resentencing

under the Commission’s 2007 amendment to § 2D1.1,

which reduced the sentencing disparity between crack- and

powder-cocaine offenses. U.S.S.G. app. C, amend. 706

(Supp. 2007). We can easily dispense with this argument.

The Commission’s policy is that a defendant already

serving a sentence may not benefit from a guidelines

amendment unless it “ha[s] the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B). Since Davis’ and Anthony’s sentences

were determined by § 4B1.1, the 2007 amendment to

§ 2D1.1 does not lower their applicable guidelines

ranges. See United States v. Forman, 553 F.3d 585, 589 (7th

Cir. 2009) (per curiam) (“Amendment 706 provides no

benefit to career offenders.”); Clay, 524 F.3d at 878-79

(“Although the recent amendments to the sentencing

guidelines lowered the offense levels associated with

Nos. 06-4101, 06-4376 & 07-1813 17

crack in the drug quantity table in U.S.S.G. § 2D1.1, they

did not change the career offender provision in

§ 4B1.1 . . . .”). Further, the Commission’s policy on

this point is not one that we can simply ignore, since

Congress has declared that any sentence reductions

based on a guidelines amendment must be “consistent

with applicable policy statements issued by the Sen-

tencing Commission.” 18 U.S.C. § 3582(c)(2); see also

United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008)

(recognizing that a district court’s authority to reduce

sentences under § 3582(c)(2) is limited by the Com-

mission’s policy statements).

3. The Effect of Kimbrough and the 2007 Amendment

on Armean’s Sentence

Unlike his co-defendants, Armean did not qualify as a

career offender. Since his sentence was determined by

§ 2D1.1, Armean should be an obvious candidate for

resentencing in light of Kimbrough. However, Armean

failed to challenge the crack/powder disparity embedded

in § 2D1.1 both at his sentencing hearing and in his ap-

pellate brief. The latter omission would generally mean

that Armean has waived any benefit from Kimbrough,

since “[a] party waives any argument that . . . it fails to

develop on appeal.” Local 15, Int’l Broth. of Elec. Workers,

AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir. 2007)

(quotation and citation omitted)). Fortunately for

Armean, the government has conceded that Armean is

entitled to a Taylor limited remand in light of Kimbrough,

thereby “waiving waiver” of Armean’s Kimbrough claim.

18 Nos. 06-4101, 06-4376 & 07-1813

See, e.g., United States v. Pacheco-Diaz, 506 F.3d 545, 551

(7th Cir. 2007). We will accordingly grant Armean a

limited remand at which the district court should

indicate whether it would have sentenced Armean dif-

ferently had it known of its discretion under Kimbrough.

See Taylor, 520 F.3d at 748-49.

Although failing to brief his Kimbrough claim, Armean

has argued on appeal that he is entitled to a sentence

reduction under the 2007 amendment to § 2D1.1. That may

be true, but this appeal is not the proper vehicle for

Armean to raise this claim in the first instance; rather,

Armean should move for a reduced sentence in the

district court under 18 U.S.C. § 3582(c)(2). Armean will

have the opportunity to make this motion at his limited

remand, at which the district court should first decide

“whether to act favorably on [Armean’s] motion (if he

makes one, or on the judge’s own initiative, if [Armean]

does not) for relief under the Commission’s new crack

regime.” Taylor, 520 F.3d at 748. After resolving any § 3582

motion, the court should indicate whether it is inclined

to reduce Armean’s sentence even further in light of

Kimbrough. Id. at 749.

B. Sentencing Arguments Resolved—Davis

Although we conclude that Davis and Anthony are

entitled to a full remand and resentencing in light of

Kimbrough, we have also considered their sentencing

arguments that are unrelated to the crack/powder dispar-

ity. Because some of these arguments are meritless

Nos. 06-4101, 06-4376 & 07-1813 19

and were fully developed in the initial sentencing pro-

ceedings, we may dispense with them in this appeal.

Beginning with Davis’ individual arguments, he asserts

that other errors were committed at his sentencing. He

argues that the district court abused its discretion by

failing to adequately consider evidence that the ATF agent

engaged in sentencing entrapment and manipulation.

Davis also asserts that the court’s application of the

career offender guideline to his case was unreasonable

based on the minor nature of his prior felony convic-

tions and the unreliability of the court’s findings of Davis’

prior convictions. Finally, Davis challenges the district

court’s refusal to reduce his sentence based on his coopera-

tion with the government.

1. Sentencing Entrapment and Manipulation

Sentencing entrapment occurs “when a defendant who

lacks a predisposition to engage in more serious crimes

nevertheless does so ‘as a result of unrelenting govern-

ment persistence.’ ” United States v. White, 519 F.3d 342,

347 (7th Cir. 2008) (quoting United States v. Veazey, 491 F.3d

700, 710 (7th Cir. 2007)). The government may disprove

sentencing entrapment by simply showing that the defen-

dant was in fact predisposed to violate the law without

“extraordinary inducements.” Id.

Sentencing manipulation is distinct from entrapment

and occurs when the government procures evidence

“through outrageous conduct solely for the purpose of

increasing the defendant’s sentence under the Sentencing

20 Nos. 06-4101, 06-4376 & 07-1813

Guidelines.” United States v. Wagner, 467 F.3d 1085, 1090

(7th Cir. 2006). Because “this circuit clearly and consis-

tently has refused to recognize any defense based on

either ‘sentencing manipulation’ or on asserting ‘outra-

geous government conduct,’ ” White, 519 F.3d at 346,

Davis’ manipulation argument would seem to be a

nonstarter. However, Davis raises both sentencing entrap-

ment and manipulation not as defenses to criminal con-

duct, but as mitigating factors that the district court may

consider in choosing a reasonable sentence. See United

States v. Lakhani, 480 F.3d 171, 186 (3d Cir. 2007) (acknowl-

edging that the district court at sentencing “would have

been entitled to consider the Government’s pervasive

role in this case,” even though the jury had rejected the

defendant’s entrapment defense); cf. United States v. Hale,

448 F.3d 971, 989 (7th Cir. 2006) (rejecting a sentencing

entrapment argument under § 3553(a) on the ground that

the defendant had not shown “extraordinary induce-

ments”). Assuming that evidence of sentencing entrap-

ment and manipulation could be relevant to a district

court’s application of the § 3553(a) factors, the evidence

in this case was not so strong that the district court

abused its discretion in rejecting Davis’ entrapment and

manipulation arguments.

Davis argues that, by changing the payment term of the

guns purchase from $2000 cash to 2 1/4 ounces cocaine, the

ATF agent entrapped Davis into a drug offense that he

would not otherwise have committed. That change also

amounts to sentencing manipulation, says Davis, because

the drug offense triggered a harsher sentencing range

under the career offender guideline, which would not

Nos. 06-4101, 06-4376 & 07-1813 21

apply to a cash purchase of guns. See U.S.S.G. § 4B1.1(a)(2)

(indicating that the career offender guideline applies

only where “the instant offense of conviction is a felony

that is either a crime of violence or a controlled sub-

stance offense”).

We find these arguments to be without merit. As to

sentencing entrapment, Davis had sold crack to the

agent on three prior occasions, indicating that he did not

lack the predisposition to commit another crack deal. True,

the prior sales involved quantities below the 50-gram

threshold that triggered a higher statutory maximum for

Davis’ instant conviction. See 21 U.S.C. § 841(b)(1)(a)(iii).

But Davis was at all times agreeable to paying for the

guns with 2 1/4 ounces of crack, telling his co-defendants

that he could easily supply that quantity. The agent

did not have to use “extraordinary inducements” to

convince Davis to engage in this relatively high-volume

crack deal. White, 519 F.3d at 347. And while the 2 1/4

ounces solicited by the agent may have had a slightly

lesser value than the originally proposed $2000 cash, such

“bargain basement pricing” does not amount to sen-

tencing entrapment. United States v. Estrada, 256 F.3d 466,

473-74 (7th Cir. 2001).

As to sentencing manipulation, it is not enough that

the agent’s provision of handguns and solicitation of

larger crack quantities may have been “motivated in part

by the desire to increase [Davis’] sentence.” Wagner, 467

F.3d at 1090. Although the agent’s tactics had the effect

of increasing Davis’ guidelines sentencing range, it also

served the legitimate purpose of investigating the full

22 Nos. 06-4101, 06-4376 & 07-1813

extent of Davis’ criminal activity, including his ability to

deal in large quantities of crack. See id. The govern-

ment’s conduct in this case was not so outrageous as to

require leniency under § 3553(a).

2. Application of the Career Offender Guideline

Davis challenges the reasonableness of the district

court’s application of the career offender guideline. In

particular, Davis contends that sentencing him under

§ 4B1.1 is unreasonable because two of the three prior

drug felonies that qualified him as a career offender

occurred at a young age, involved relatively small

amounts of drugs, and resulted in relatively short periods

of incarceration. The problem for Davis, however, is that

the district court fully considered these factors when

examining Davis’ “extensive criminal history.” The court

simply discounted the relative brevity of Davis’ prior

sentences against the fact that “the sentences that you

have served certainly have not been a deterrent to your

conduct.” There was no abuse of discretion here.

Davis also challenges the district court’s conclusion

that he qualified as a career offender based on prior

convictions that were not proven beyond a reasonable

doubt. He argues that due process requires that sen-

tencing enhancements be based on only reliable facts, and

that prior convictions established by a mere prepon-

derance of the evidence are unreliable. However, rather

than developing a cogent due process claim, Davis’ brief

blends his argument for a reasonable doubt standard

with a discussion of the Sixth Amendment right to a

Nos. 06-4101, 06-4376 & 07-1813 23

jury trial. We have repeatedly held that the Sixth Amend-

ment does not require that prior convictions supporting

a career offender classification be found by a jury beyond

a reasonable doubt. See Clanton, 538 F.3d at 654 (citing

Almendarez-Torres v. United States, 523 U.S. 224 (1998));

United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.

2007). We do not see how Davis’ argument, though

couched in terms of due process and the reasonableness

of his sentence, survives this precedent.

3. Cooperation with the Government

In his final challenge to the reasonableness of his sen-

tence, Davis argues that the district court abused its

discretion by failing to consider his cooperation with

the government. Prior to pleading in this case, Davis

discussed a plea agreement where, in exchange for dis-

closing the details of the crime and serving as a witness,

the government would move for a reduced sentence

based on Davis’ “substantial assistance.” See U.S.S.G.

§ 5K1.1. The deal fell through, however, based on Davis’

desire to make other mitigation arguments at sentencing

and his failure to admit all of the details of the offense,

particularly that it involved crack cocaine. As a result,

the government declined to make a § 5K1.1 motion at

Davis’ sentencing.

We agree with Davis that, as a general matter, a district

court may consider a defendant’s cooperation with the

government as a basis for a reduced sentence, even if the

government has not made a § 5K1.1 motion. See United

24 Nos. 06-4101, 06-4376 & 07-1813

States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (reasoning

that a district court should consider “the contention that

a defendant made efforts to cooperate, even if those

efforts did not yield a Government motion for a down-

ward departure pursuant to U.S.S.G. § 5K1.1”); United

States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir. 2005) (con-

cluding that “a defendant’s assistance should be fully

considered by a district court at sentencing even if that

assistance is not presented to the court in the form of a

§ 5K1.1 motion”); cf. United States v. Blue, 453 F.3d 948,

954 (7th Cir. 2006) (recognizing the district court’s “obliga-

tion to weigh the defendant’s cooperation . . . against the

other statutory sentencing factors” where the govern-

ment had made a § 5K1.1 motion). However, we

disagree that the district court in this case failed to give

sufficient consideration to Davis’ substantial-assistance

argument. The court simply rejected that argument in

favor of the government’s claim that “there were certain

things that [Davis] would not admit that were essential

to [his] cooperation.” The court’s decision to give more

credit to the government’s view of the extent of Davis’

cooperation was not an abuse of discretion.

C. Sentencing Entrapment and

Manipulation—Anthony

In addition to the Kimbrough argument that we have

addressed above, Anthony adopts Davis’ arguments

that the district court failed to adequately consider evi-

dence of sentencing entrapment and manipulation. As

with Davis’ analogous claims, we find that Anthony’s

Nos. 06-4101, 06-4376 & 07-1813 25

sentencing entrapment and manipulation claims are

without merit. Along with Davis, Anthony negotiated

the guns purchase with the ATF agent and readily

agreed to the agent’s suggestion that the defendants pay

for the guns with crack instead of cash. The government

did not have to resort to “extraordinary inducements”

that would support a sentencing entrapment claim,

White, 519 F.3d at 347, and its conduct was not so outra-

geous to support a sentencing manipulation claim,

Wagner, 467 F.3d at 1090.

III. Conclusion

Because no congressional directive prohibited the

district court from considering Davis’ and Anthony’s

sentencing argument based on the crack/powder

disparity affecting career offenders convicted of drug

conspiracy offenses under 21 U.S.C. § 846, we V ACATE

these defendants’ sentences and R EMAND for resentencing

consistent with this opinion. As for Armean’s case, we

order a L IMITED R EMAND so that the district court may

follow the procedure described in United States v. Taylor,

520 F.3d 746, 748-49 (7th Cir. 2008), to address the effect

of both the 2007 Amendment to § 2D1.1 and Kimbrough on

Armean’s sentence. After resolving any motion for a

reduced sentence under 18 U.S.C. § 3582(c)(2) based on

the Amendment, the court should indicate whether it is

inclined to reduce Armean’s sentence under Kimbrough.

7-20-09