United States v. Spears

533 F.3d 715, 2008 U.S. App. LEXIS 13270, 2008 WL 2485329

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 23, 2008
• Docket: 05-4468, 06-1354
• Status: Published

Opinions

RILEY, Circuit Judge.

After our earlier decision in this matter, United States v. Spears, 469 F.3d 1166 (8th Cir.2006) (en banc) (Spears J), 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 11(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-l 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 Gun-ter, 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.” Gwnter, 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.

1 . United. States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).