FILED
United States Court of Appeals
Tenth Circuit
March 3, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 05-3487
v. (D.C. No. 04-CR-20140-CM)
MAURICE TROTTER, a/k/a Mo, (District of Kansas)
Defendant–Appellant.
OPINION ON REMAND FROM
THE UNITED STATES SUPREME COURT
Before MURPHY, McKAY, and GORSUCH, Circuit Judges.
McKAY, Circuit Judge.
This case is before us on remand from the United States Supreme Court.
Defendant was convicted of distribution and possession of cocaine powder and
crack cocaine as well as conspiracy to possess with intent to distribute those
substances. See United States v. Trotter, 483 F.3d 694, 697 (10th Cir. 2007). On
appeal, we affirmed Defendant’s conviction and sentence. Id. at 703. We
rejected Defendant’s argument that the district court erred by failing to impose a
lower sentence based on the disparity in punishment between offenses involving
cocaine powder and offenses involving crack cocaine, holding that this argument
was foreclosed by our decision in United States v. McCullough, 457 F.3d 1150,
1171-72 (10th Cir. 2006). Id. The Supreme Court subsequently granted certiorari
and vacated and remanded this case for further consideration in light of
Kimbrough v. United States, 552 U.S. ____, 128 S. Ct. 558 (2007).
In Kimbrough, the Court discussed the Sentencing Commission’s criticisms
of the sentencing disparity between crack and powder cocaine offenses and the
Commission’s recent amendments to the Guidelines on crack offenses. 128 S. Ct.
at 566-569. The Court noted that the Commission “reported that the
crack/powder disparity produces disproportionately harsh sanctions, i.e.,
sentences for crack cocaine offenses ‘greater than necessary’ in light of the
purposes of sentencing set forth in § 3553(a).” Id. at 575. The Court therefore
held 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 purposes.” Id. The
Court held that the district court in the proceedings before it “properly homed in
on the particular circumstances of [defendant’s] case and accorded weight to the
Sentencing Commission’s consistent and emphatic position that the crack/powder
disparity is at odds with § 3553(a).” Id. at 576. The Court therefore held that
the Fourth Circuit had erred in vacating the district court’s imposition of a below-
Guidelines sentence. Id.
In the instant case, Defendant requested the district court to vary from the
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advisory Guidelines based on the § 3553(a) factors and the crack/powder
disparity. In response, the Government argued that “we’re all bound to follow
[the Guidelines setting forth base offense levels for crimes involving crack and
powder], whether we agree or disagree,” and that “nothing that Booker did has . .
. taken that away,” (R. Doc. 129 at 23). The court then sentenced Defendant at
the bottom of the applicable Guidelines range, holding that the § 3553(a) factors
did not warrant a variance. 1 The court did not explicitly address Defendant’s
argument that the crack/powder disparity warranted a downward variance from
the Guidelines.
We are unable to tell from the sentencing transcript whether the district
court’s rejection of Defendant’s argument was based on its conclusion that the
crack/powder disparity did not warrant a below-Guidelines sentence in
Defendant’s particular case—a permissible conclusion under Kimbrough—or on
its acceptance of the Government’s argument that the disparity could not
constitute a valid reason for varying from the Guidelines in any case—a position
1
Although the court actually stated that a departure was not warranted in
Defendant’s case, the sentencing transcript makes clear that the court was
referring to a variance rather than a departure. See United States v. Atencio, 476
F.3d 1099, 1101 n.1 (10th Cir. 2007) (“We now clarify that when a court reaches
a sentence above or below the recommended Guidelines range through application
of Chapters Four or Five of the Sentencing Guidelines, the resulting increase or
decrease is referred to as a ‘departure.’ When a court enhances or detracts from
the recommended range through application of § 3553(a) factors, however, the
increase or decrease is called a ‘variance.’”).
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that has been overruled by Kimbrough. We therefore REMAND this case for the
district court to clarify why it rejected Defendant’s request for a variance based
on the crack/powder disparity. If it rejected this request based on a belief that it
did not have discretion to specifically consider whether the disparity resulted in a
disproportionately harsh sentence, the court is to conduct resentencing in light of
Kimbrough.
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