In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2668
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JULIUS A RBERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 278—Rudolph T. Randa, Judge.
A RGUED M ARCH 31, 2010—D ECIDED JULY 16, 2010
Before M ANION and W ILLIAMS, Circuit Judges, and
D ARRAH, District Judge.
D ARRAH , District Judge. On February 27, 2009,
Julius Arberry pled guilty to one count of conspiracy
to distribute fifty grams or more of crack cocaine, five
kilograms or more of cocaine, and marijuana, in viola-
Honorable John W. Darrah, United States District Judge for
the Northern District of Illinois, is sitting by designation.
2 No. 09-2668
tion of 21 U.S.C. § 846 and 18 U.S.C. § 2. A sentencing
hearing was held on June 5, 2009, and was continued
until June 25, 2009. At both proceedings, defense counsel
asked the district court to apply a one-to-one cocaine-
powder ratio and sentence Arberry to the mandatory
minimum 120-month term of imprisonment. The court,
without mentioning the proposed one-to-one ratio, sen-
tenced Arberry to 151 months’ imprisonment, the low
end of the adjusted guideline range. Arberry now appeals
his sentence, claiming that the district court erred by
failing to address his argument as to the proper crack-
powder ratio.
A sentencing court must address “all of a defendant’s
principal arguments that ‘are not so weak as to not merit
discussion.’ ” United States v. Villegas-Miranda, 579 F.3d 798,
801 (7th Cir. 2009) (quoting United States v. Cunningham,
429 F.3d 673, 679 (7th Cir. 2005)). In Kimbrough v. United
States, 552 U.S. 85, 110 (2007) (Kimbrough), the Supreme
Court held that district courts may impose below-
guideline-range sentences when the crack/powder dispar-
ity results in a sentence greater than necessary to
achieve the purposes of § 3553(a). Subsequently, in Spears
v. United States, ___ U.S. ___, 129 S.Ct. 840, 834-44
(2009) (Spears), the Court held that district courts “are
entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagree-
ment with those Guidelines.” Arberry now argues that
the combination of these two principles—that the sen-
tencing court must consider all principal, nonfrivolous
arguments and that the court may impose a sentence
based on a lower crack/powder ratio—requires remand
for resentencing.
No. 09-2668 3
The Government makes two arguments in response:
(1) that application of the one-to-one ratio was not one
of Arberry’s principal arguments and (2) that the court
considered and reject Arberry’s argument. With respect
to the first argument, the Government notes that little
time or paper was spent on the issue. Application of the
one-to-one ratio was not raised in Arberry’s written
objections to the Presentence Investigation Report
(“PSR”), Arberry did not file a written sentencing memo-
randum, and the entire oral argument for the applica-
tion of the one-to-one ratio is contained in just over half
a page in the June 25 sentencing transcript. The Govern-
ment’s first two points are not persuasive. As Arberry
points out, the Guidelines call for harsher penalties for
crack offenses; and, thus, the PSR would include the
crack/powder disparity. Nor does the fact that Arberry
did not file a written sentencing memorandum support
the Government’s position.
This leaves the Government’s last point, that Arberry
did not devote a substantial amount of time in his oral
statement at sentencing to his one-to-one ratio argument.
At the June 5 hearing, Arberry’s attorney stated, essen-
tially, that the Government had no objection to the use
of the one-to-one ratio and that the court could apply it
if the court felt that it was “the right and just thing to do.”
(App. at 7.) At the second hearing, on June 25, Arberry’s
counsel did little more than remind the court that he
had raised the one-to-one issue at the previous hearing
and that the Government did not object. Defense counsel
stated, “I think that’s the fairest and most just route to
go here.” (App. at 8.)
4 No. 09-2668
However, several factors rebut the Government’s argu-
ment. First, Arberry raised the issue at both sentencing
hearings. Second, it was twice noted to the court that
the Government had no objection to applying the one-to-
one ratio. As Arberry now argues, an agreed-upon
reason for a reduced sentence likely needs less lawyering
than a disputed one. Third, the crack-to-powder ratio
selected by the court had significant effect on the
resulting guideline range. Fourth, under Kimbrough and
Spears, Arberry’s argument had clear legal merit. And,
finally, Arberry’s somewhat brief reference to the one-to-
one ratio must be considered in light of the present
high level of attention on the question of the appropriate
crack-to-powder ratio in sentencing. The Government
admits in its brief that the sentencing judge was cer-
tainly aware of the issue.
For these reasons, the application of the one-to-one
ratio was one of Arberry’s principal sentencing argu-
ments. Therefore, because the argument is nonfrivolous,
the district court was required to address it. See Cun-
ningham, 429 F.3d at 679.
The Government’s second contention is that the district
court did consider Arberry’s one-to-one argument. While
admitting that the judge did not use the words “one-to-one
ratio” in its sentencing discussion, the Government none-
theless argues that the record demonstrates that the
district court considered and reject the argument. The
Government asserts that the district court thoroughly
addressed the seriousness of the offense and rejected the
suggestion of a modified guideline range. Specifically, the
No. 09-2668 5
Government points to the court’s statement, “So when
I looked at this presentence report, the guideline range
is the correct one, as far as I was concerned.” (App. at 25.)
The Government concludes that this statement shows
that the court rejected a reduced range based on the
Kimbrough crack/powder argument.
This argument is not persuasive. The record does not
show that Arberry’s crack/powder argument was ad-
dressed.
For the foregoing reasons, the sentence is V ACATED , and
the case is R EMANDED to the district court for resentencing.1
1
We note that this ruling is consistent with the Fourth
Circuit’s recent opinion in United States v. Clark, No. 09-4256,
2010 WL 2464979 (4th Cir. June 17, 2010).
7-16-10