U.S. v. Spears

533 F.3d 715

UNITED STATES of America, Appellee/Cross-Appellant, v. Steven SPEARS, Appellant/Cross-Appellee American Civil Liberties Union Foundation Drug Law Reform Project; American Civil Liberties Union of Iowa; Douglas A. Berman; Michael M. O'Hear; David N. Yellen; David M. Zlotnick; Federal Public Defender of Iowa, Amici on Behalf of Appellant/Cross-Appellee.

No. 05-4468.

No. 06-1354.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2008.

Filed: June 23, 2008.

Douglas Roehrich, Sioux City, IA, for appellant/cross-appellee.

Shawn S. Wehde, Special Assistant U.S. Attorney, Sioux City, IA, for appellee/cross-appellant.

Mark Osler, Waco, TX, for Amici on behalf of appellant/cross-appellee.

Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.

RILEY, Circuit Judge.

After our earlier decision in this matter, United States v. Spears, 469 F.3d 1166 (8th Cir.2006) (en banc) (Spears I), the United States Supreme Court vacated and remanded the case for reconsideration in light of Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). See Spears v. United States, ___ U.S. ___, 128 S.Ct. 858, 169 L.Ed.2d 709 (2008). Upon reconsideration, we vacate Section II(C) of Spears I, and we reinstate the background and remainder of the Spears I analysis. Based upon the clarifications outlined below, we again reverse and remand for resentencing.

I. DISCUSSION

A. Clarification

In Spears I, we discussed recent precedent in which the Third Circuit concluded "district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker¹ sentencing process." See Spears I, 469 F.3d at 1175 (quoting United States v. Gunter, 462 F.3d 237, 249 (3d Cir.2006)). We expressly declined either to adopt or endorse the Third Circuit's determination. See id. According to Kimbrough, our dicta was wrong.

In light of Kimbrough, we now expressly adopt the determination that, "under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only. . . ." Kimbrough, 128 S.Ct. at 564. "A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is `greater than necessary' to serve the objectives of sentencing." Id. (citing 18 U.S.C. § 3553(a) (2000 ed. and Supp. V)). The Supreme Court therefore concluded, "In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses." Id.

B. Underlying Holding

In Spears's case, we did not need either to adopt or endorse the proposition outlined in Gunter and now Kimbrough because the district court did not just "consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses," Kimbrough, 128 S.Ct. at 564, in conjunction with a proper § 3553(a) analysis. Rather, the district court substituted its own ratio, and did not conduct any additional analysis under § 3553(a). The district court declared:

[O]nce I made the decision I was going to vary on the [United States v. Perry, 389 F.Supp.2d 278 (D.R.I.2005)] crack ratio basis, I didn't really look at the other § 3553(a) factors because to me it was a moot question. I'll only look at that issue should this sentencing be reversed on the 20-to-1 ratio.

Spears I, 469 F.3d at 1176 (internal alteration omitted). The district court therefore "impermissibly varied by replacing the 100:1 quantity ratio inherent in the advisory Guidelines range with a 20:1 quantity ratio." Id. at 1178 (emphasis added). Additionally, "the district court did not vary from the advisory Guidelines range based on an individualized, case-specific evaluation of the facts or of the defendant." Id. In considering the overall goals of sentencing under § 3553(a) and conducting an individualized assessment 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 necessary. See Kimbrough, 128 S.Ct. at 575. However, the district court may not categorically reject the ratio set forth by the Guidelines.

This determination is directly in line with the Third Circuit's reasoning in Gunter, where the court explained, "we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten." Gunter, 462 F.3d at 249 (emphasis added). Nothing in Kimbrough suggests the district court may substitute its own ratio for the ratio set forth in the Guidelines. Indeed, the Supreme Court in Kimbrough explained "the court did not purport to establish a ratio of its own." Kimbrough, 128 S.Ct. at 575.

II. CONCLUSION

We again affirm Spears's conviction, and reverse Spears's sentence and remand for resentencing consistent with this opinion.

MURPHY, Circuit Judge, concurring.

The Congressional sentencing ratio between powder and crack cocaine offenses was incorporated into the sentencing guidelines by the first United States Sentencing Commission. Although the Commission recently made some adjustments for crack sentences in its 2007 amendments by reducing base offense levels, the underlying guideline ratio between powder and crack remains the same. As an author² of the 2002 Commission report to Congress that recommended reducing the disparity in cocaine sentencing, I am aware of the large amount of evidence cited there which undercut any continued validity for the policy reasons on which the disparate ratio was originally based. In its decision in Kimbrough, the Supreme Court cited the Commission's report and authorized sentencing judges to vary downward from the advisory guidelines in crack cases on the basis of unwarranted disparity. 128 S.Ct. at 566-69. Since the Court's opinion in Kimbrough dealt only with guideline sentencing (as did its other recent sentencing decisions in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)), the much criticized ratio remains in place for all sentences affected by statutory mandatory minimums.

Sentencing courts are faced with a dilemma in trying to fashion fair and equitable sentences which are appropriate for the individual defendant, but which do not create unwarranted disparities with sentences for other defendants and other courts. See 18 U.S.C. § 3553(a)(6). Today's decision of our divided court reflects that dilemma with thoughtful opinions on both sides of the issue, but a satisfactory solution to the perceived unfairness of the great disparity in powder and crack sentencing can only be accomplished by Congress. Only Congress has the power to alter the cocaine sentencing ratio in the statutes which in turn affects the advisory guidelines. Although legislative proposals for change have been introduced, Congress has not yet been willing to act for change.

One of the most basic principles of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., and a major reason for its bipartisan support was to reduce sentencing disparity, to ensure that each federal judge would not set his or her own individual sentencing policy. See S.Rep. No. 98-225, at 41-46 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3224-3229; see also United States v. Mickelson, 433 F.3d 1050, 1053-55 (8th Cir.2006) (discussing reduction of sentencing disparity as rationale for Sentencing Reform Act). The approach advocated by the dissent would have just such a consequence of increasing sentencing disparity, with the potential for each judge to develop his or her cocaine policy ratio with dramatically different results within and between districts.

The Supreme Court counseled in Kimbrough that a sentencing court should not operate in a vacuum and "must take account of sentencing practices in other courts," 128 S.Ct. at 574, and that it should also consider the disparate impact of the statutory mandatory minimums as it weighs the "§ 3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself." Id. Rather than suggesting that a sentencing judge may develop his or her own policy ratio for the range of cocaine cases as the dissent proposes, in Kimbrough the Court approved a sentencing approach based on the "particular circumstances" of the defendant's case. Id. at 576.

The first step for the sentencing court in cocaine cases still is "properly calculating and considering the advisory Guidelines range"; after that the court should proceed to consider the individual circumstances of the crime and the defendant with reference to the § 3553(a) factors. Id. at 575. Recognizing the unfairness that the 100 to 1 ratio can have, the Court authorized district judges "to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence `greater than necessary' to achieve § 3553(a)'s purposes." Id. The Court did not, however, authorize district judges to develop their own policy ratio to be applied in every cocaine case. In fact, the Court approvingly noted that the district court it was reviewing

did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with § 3553(a)'s overarching instruction to impose a sentence sufficient, but not greater than necessary [. . .] to do justice in this case.

Id. (quotation omitted) (emphasis added). The role of the sentencing judge is not the same as that of a legislative policymaker. The sentencing focus must be on the "particular defendant" rather than on a whole category of cases. See id.

For these reasons, I concur in Judge Riley's opinion. Perhaps the specter of myriad cocaine sentencing policies with uneven results across the country will move Congress to...