Cite as: 555 U. S. ____ (2009) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
STEVEN SPEARS v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 08–5721. Decided January 21, 2009
PER CURIAM.
Steven Spears was found guilty of conspiracy to distrib
ute at least 50 grams of cocaine base and at least 500
grams of powder cocaine, in violation of 21 U. S. C.
§§841(a)(1), (b)(1)(A), (b)(1)(B), 846. At sentencing, the
District Court determined that the drug quantities attrib
utable to Spears yielded an offense level of 38, that his
criminal history justified placing him in the Guidelines’
criminal history category IV, and that the resulting advi
sory Guidelines sentencing range was 324 to 405 months’
imprisonment. The District Court was of the view that
the Guidelines’ 100:1 ratio between powder cocaine and
crack cocaine quantities, see United States Sentencing
Commission, Guidelines Manual §2D1.1(c) (Nov. 2006)
(USSG),* yielded an excessive sentence in light of the
sentencing factors outlined in 18 U. S. C. §3553(a). Rely
ing in part on decisions from other District Courts, see
United States v. Perry, 389 F. Supp. 2d 278, 307–308 (RI
2005); United States v. Smith, 359 F. Supp. 2d 771, 781–
782 (ED Wis. 2005), which in turn relied on a report from
the Sentencing Commission criticizing the 100:1 ratio, see
United States Sentencing Commission, Report to Con
gress: Cocaine and Federal Sentencing Policy 106–107,
App. A, pp. 3–6 (May 2002) (hereinafter Report to Con
gress), the District Court recalculated Spears’ offense level
based on a 20:1 crack-to-powder ratio. That yielded an
——————
* The Sentencing Commission has since reduced the crack-to-powder
ratio. See USSG, Supp. App. C, Amdt. 706 (Nov. 2007).
2 SPEARS v. UNITED STATES
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offense level of 34 and a sentencing range of 210 to 262
months’ imprisonment. The District Court sentenced
Spears to 240 months in prison, the statutory mandatory
minimum. See United States v. Spears, 469 F. 3d 1166,
1173–1174 (CA8 2006) (en banc) (Spears I).
On cross-appeal, the Government argued that “the
district court erred by categorically rejecting the 100:1
quantity ratio and substituting its own ratio in calculating
Spears’s sentence.” Id., at 1174. The Eighth Circuit
reversed Spears’ sentence and remanded for resentencing,
holding that “neither Booker nor §3553(a) authorizes
district courts to reject the 100:1 quantity ratio and use a
different ratio in sentencing defendants for crack cocaine
offenses.” Id., at 1176. This Court vacated the judgment
of the Eighth Circuit, and remanded for further considera
tion in light of Kimbrough v. United States, 552 U. S. ___
(2007). Spears v. United States, 552 U. S. ___ (2008).
On remand, the Eighth Circuit again reversed Spears’
sentence and remanded for resentencing. 533 F. 3d 715,
716 (2008) (en banc) (Spears II). It concluded, again, that
the District Court “may not categorically reject the ratio
set forth by the Guidelines,” id., at 717, and “ ‘impermissi
bly varied by replacing the 100:1 quantity ratio inherent
in the advisory Guidelines range with a 20:1 quantity
ratio,’ ” ibid. (quoting Spears I, supra, at 1178). Spears
again petitioned for a writ of certiorari. Because the
Eighth Circuit’s decision on remand conflicts with our
decision in Kimbrough, we grant the petition for certiorari
and reverse.
In Kimbrough, we held that “under Booker, the cocaine
Guidelines, like all other Guidelines, are advisory only,”
552 U. S., at ___ (slip op., at 2), and that “it would not be
an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder
disparity yields a sentence ‘greater than necessary’ to
achieve §3553(a)’s purpose, even in a mine-run case,” id.,
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at ___ (slip op., at 21) (emphasis added). The correct
interpretation of that holding is the one offered by the
dissent in Spears II:
“The Court thus established that even when a particu
lar defendant in a crack cocaine case presents no spe
cial mitigating circumstances—no outstanding service
to country or community, no unusually disadvantaged
childhood, no overstated criminal history score, no
post-offense rehabilitation—a sentencing court may
nonetheless vary downward from the advisory guide
line range. The court may do so based solely on its
view that the 100-to-1 ratio embodied in the sentenc
ing guidelines for the treatment of crack cocaine ver
sus powder cocaine creates ‘an unwarranted disparity
within the meaning of §3553(a),’ and is ‘at odds with
§3553(a).’ The only fact necessary to justify such a
variance is the sentencing court’s disagreement with
the guidelines—its policy view that the 100-to-1 ratio
creates an unwarranted disparity.” 533 F. 3d, at 719
(opinion of Colloton, J.) (citations omitted).
Kimbrough considered and rejected the position taken
by the Eighth Circuit below. It noted that “a district
court’s decision to vary from the advisory Guidelines may
attract greatest respect when the sentencing judge finds a
particular case ‘outside the “heartland” to which the
Commission intends individual Guidelines to apply.’ ” 552
U. S., at ___ (slip op., at 20–21) (quoting Rita v. United
States, 551 U. S. 338, 351 (2007)). The implication was
that an “inside the heartland” departure (which is neces
sarily based on a policy disagreement with the Guidelines
and necessarily disagrees on a “categorical basis”) may be
entitled to less respect. Our opinion said, however, that
the “crack cocaine Guidelines . . . present no occasion for
elaborative discussion of this matter because those Guide
lines do not exemplify the Commission’s exercise of its
4 SPEARS v. UNITED STATES
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characteristic institutional role.” 552 U. S., at ___ (slip
op., at 21). Kimbrough thus holds that with respect to the
crack cocaine Guidelines, a categorical disagreement with
and variance from the Guidelines is not suspect.
That was indeed the point of Kimbrough: a recognition
of district courts’ authority to vary from the crack cocaine
Guidelines based on policy disagreement with them, and
not simply based on an individualized determination that
they yield an excessive sentence in a particular case. The
latter proposition was already established pre-Kimbrough,
see United States v. Booker, 543 U. S. 220, 245–246 (2005),
and the Government conceded as much in Kimbrough.
552 U. S., at ___, n. 13 (slip op., at 13, n. 13). That the
Government did not prevail in Kimbrough proves that its
concession—“that a district court may vary from the 100:1
ratio if it does so ‘based on the individualized circum
stance[s]’ of a particular case,” ibid.—understated the
extent of district courts’ sentencing discretion.
In drawing a distinction between “individualized, case
specific” consideration of the Guidelines’ ratio and cate
gorical rejection and replacement of that ratio, the Eighth
Circuit relied in part, Spears II, supra, at 717, on the
following passage from Kimbrough:
“The [district] court did not purport to establish a ra
tio of its own. Rather, it appropriately framed its final
determination in line with §3553(a)’s overarching in
struction to ‘impose a sentence sufficient, but not
greater than necessary’ to accomplish the sentencing
goals advanced in §3553(a)(2).” 552 U. S., at ___ (slip
op., at 22).
This says that it was “appropriate” for the District Court
in Kimbrough not to specify what ratio it was using, but
merely to proceed with §3553(a) analysis. The Eighth
Circuit read that to mean that district courts, in the
course of their individualized determinations, may not
Cite as: 555 U. S. ____ (2009) 5
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categorically disagree with the Guidelines ratio, and (con
sequently) may not substitute their own ratio for that of the
Guidelines. If it meant that, our vacating of the Eighth
Circuit’s judgment in Spears I would have been inexplica
ble, because that supposedly impermissible disagreement
and substitution was precisely the reason for Spears I’s
reversal of the District Court. See Spears I, 469 F. 3d, at
1175–1176. As a logical matter, of course, rejection of the
100:1 ratio, explicitly approved by Kimbrough, necessarily
implies adoption of some other ratio to govern the mine
run case. A sentencing judge who is given the power to
reject the disparity created by the crack-to-powder ratio
must also possess the power to apply a different ratio
which, in his judgment, corrects the disparity. Put simply,
the ability to reduce a mine-run defendant’s sentence
necessarily permits adoption of a replacement ratio.
To the extent the above quoted language has obscured
Kimbrough’s holding, we now clarify that district courts
are entitled to reject and vary categorically from the crack
cocaine Guidelines based on a policy disagreement with
those Guidelines. Here, the District Court’s choice of
replacement ratio was based upon two well-reasoned
decisions by other courts, which themselves reflected the
Sentencing Commission’s expert judgment that a 20:1
ratio would be appropriate in a mine-run case. See Perry,
389 F. Supp. 2d, at 307–308; Smith, 359 F. Supp. 2d, at
781–782; Report to Congress 106–107, App. A, pp. 3–6.
The alternative approach—adopted by the Eighth Cir
cuit—would likely yield one of two results. Either district
courts would treat the Guidelines’ policy embodied in the
crack-to-powder ratio as mandatory, believing that they
are not entitled to vary based on “categorical” policy dis
agreements with the Guidelines, or they would continue to
vary, masking their categorical policy disagreements as
“individualized determinations.” The latter is institution
alized subterfuge. The former contradicts our holding in
6 SPEARS v. UNITED STATES
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Kimbrough. Neither is an acceptable sentencing practice.
In opposing Spears’ present petition for a writ of certio
rari, the Government contends that the Eighth Circuit’s
opinion stands only for the noncontroversial proposition
that a remand for resentencing was warranted in this case
because the District Court did not properly consider all of
the §3553(a) sentencing factors. Brief in Opposition 12–
13. But the Government did not present that argument
below, and the Eighth Circuit’s opinion plainly did not rest
on that ground. It concluded instead that “the district
court may not categorically reject the ratio set forth by the
Guidelines.” Spears II, 533 F. 3d, at 717. The Eighth
Circuit has since read its own opinion to mean what it
says, see United States v. Judon, 284 Fed. Appx. 371, 372
(2008) (per curiam), and so do we. In any event, to the
extent the District Court cut short its sentencing analysis,
it did so only because it had already determined that a
mandatory minimum sentence was required, thus mooting
any further arguments for a reduced sentence. The deci
sion not to entertain pointless arguments hardly consti
tutes procedural error.
The dissent contends, post, at 1, that the Eighth Circuit
recognized Kimbrough’s core holding when it stated that
in conducting “an individualized assessment based upon
the particular circumstances of a defendant’s case, a dis
trict court may determine the 100:1 quantity ratio results
in a harsher sentence than necessary,” Spears II, supra,
at 717. But that was not Kimbrough’s holding; it was the
Government’s position in Kimbrough, which did not pre
vail. And it is expressly contradicted by Kimbrough’s
holding that district courts are entitled to vary from the
crack-cocaine guidelines in a mine-run case where there
are no “particular circumstances” that would otherwise
justify a variance from the Guidelines’ sentencing range.
The dissent believes that “[t]his petition involves the
arguably distinct issue whether district courts that do
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Per Curiam
disagree with the policy underlying the Guidelines may
adopt their own categorical crack-powder ratios in place of
the ratio set forth in the Guidelines.” Post, at 1. But that
is in fact not distinct from the issue we addressed in
Kimbrough. To say that the judge who considers the 100:1
ratio excessive cannot apply a different ratio is to say that
the Kimbrough-sanctioned district-court disagreement
with the 100:1 ratio cannot honestly be given effect. It is
absurd to think that a sentence which is reasonable in
light of the statutory sentencing factors, see 18 U. S. C.
§3553(a), becomes unreasonable if the sentencing judge
chooses to specify his disagreement, and the degree of his
disagreement, with the 100:1 ratio, which is the entire
basis for his Guidelines departure.
The dissent says that “Apprendi, Booker, Rita, Gall, and
Kimbrough have given the lower courts a good deal to
digest over a relatively short period.” Post, at 3. True
enough—and we should therefore promptly remove from
the menu the Eighth Circuit’s offering, a smuggled-in dish
that is indigestible. Finally, the dissent points out that
other courts have followed the Eighth Circuit’s course, see
United States v. Russell, 537 F. 3d 6, 11 (CA1 2008);
United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008).
Both of those courts, like the Eighth Circuit, seized upon
the language from Kimbrough quoted above in order to
stand by the course they had adopted pre-Kimbrough—
and in the case of the First Circuit, despite this Court’s
having vacated and remanded, in light of Kimbrough, the
prior First Circuit judgment which had established that
course. See Pho v. United States, 552 U. S. ___ (2008). If
the error of those opinions is, as we think, evident, they
demonstrate the need to clarify at once the holding of
Kimbrough.
* * *
The petition for certiorari and the motion for leave to
8 SPEARS v. UNITED STATES
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proceed in forma pauperis are granted. The judgment of
the Court of Appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY would grant the petition for a writ of
certiorari and set the case for oral argument.
JUSTICE THOMAS dissents.
Cite as: 555 U. S. ____ (2009) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
STEVEN SPEARS v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 08–5721. Decided January 21, 2009
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO
joins, dissenting.
I dissent from the Court’s summary reversal in this
case. As explained by the majority here and the dissent
ing judges below, there are cogent arguments that the
Eighth Circuit’s decision was contrary to our decision last
Term in Kimbrough v. United States, 552 U. S. ___ (2007).
But I do not think any error is so apparent as to warrant
the bitter medicine of summary reversal, and I think there
are good reasons not to address the question presented at
this time.
In the decision below, the Court of Appeals recognized
Kimbrough’s core holding that district courts have author
ity to depart from the Guidelines based on policy concerns:
“In considering the overall goals of sentencing under [18
U. S. C.] §3553(a) and conducting an individualized as
sessment 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 neces
sary.” 533 F. 3d 715, 717 (CA8 2008). This petition in
volves the arguably distinct issue whether district courts
that do disagree with the policy underlying the Guidelines
may adopt their own categorical crack-powder ratios in
place of the ratio set forth in the Guidelines.
There is at least some language in Kimbrough that
seems to support the Court of Appeals’ holding. In
Kimbrough, we noted with apparent approval that the
District Court “did not purport to establish a ratio of its
own.” 552 U. S., at ___ (slip op., at 22) (emphasis added).
2 SPEARS v. UNITED STATES
ROBERTS, C. J., dissenting
Rather, we held, the District Court “appropriately framed
its final determination in line with §3553(a)’s overarching
instruction to impose a sentence sufficient, but not greater
than necessary to accomplish the sentencing goals ad
vanced in §3553(a)(2).” Ibid. (internal quotation marks
omitted).
Two other Courts of Appeals agree with the Eighth
Circuit’s interpretation of this language. See United
States v. Russell, 537 F. 3d 6, 11 (CA1 2008) (emphasizing
“the importance of individualized, case-by-case sentencing
determinations, rather than a reliance on generalized
ratios”); United States v. Gunter, 527 F. 3d 282, 286 (CA3
2008) (“a district court may not employ a ‘rubber stamp’
approach that categorically rejects the crack/powder dis
parity without an individualized assessment of the
§3553(a) factors”). The majority cites no circuit court
decision contrary to that of the Eighth Circuit in this case.
This is not the stuff of summary reversal. The majority
may well be correct that its holding today follows from
Kimbrough, but it is not clear to me that this result was
part and parcel of the holding in that case, especially in
light of the language quoted above.
At the same time, I do not believe this case meets our
normal criteria for plenary consideration. As noted, there
is no split in the lower courts on the question whether a
district court may replace the crack-powder ratio in the
Guidelines with a categorical ratio of the court’s own
choosing. And, as explained above, I do not think the
Court of Appeals has “so far departed from the accepted
and usual course of judicial proceedings . . . as to call for
an exercise of this Court’s supervisory power.” S. Ct. Rule
10(a). In other words, this is exactly the sort of issue that
could benefit from further attention in the courts of ap
peals. We should not rush to answer a novel question
about the application of a one-year-old decision in the
absence of a pronounced conflict among the circuits.
Cite as: 555 U. S. ____ (2009) 3
ROBERTS, C. J., dissenting
Apprendi, Booker, Rita, Gall, and Kimbrough have given
the lower courts a good deal to digest over a relatively
short period. We should give them some time to address
the nuances of these precedents before adding new ones.
As has been said, a plant cannot grow if you constantly
yank it out of the ground to see if the roots are healthy.