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