United States v. Brewer

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3909
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Edward Frank Brewer, *
*
Appellant. *
___________

Submitted: June 18, 2010
Filed: October 21, 2010
___________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
___________

GRUENDER, Circuit Judge.

Edward Brewer was convicted after a jury trial of conspiracy to distribute crack
cocaine, distribution of crack cocaine, and possession with intent to distribute crack
cocaine. See 21 U.S.C. §§ 841(a)(1) and 846. The district court1 sentenced Brewer
to 370 months’ imprisonment and 10 years of supervised release. Brewer appeals his
convictions and sentence. For the following reasons, we affirm.

1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I. BACKGROUND

In September 2008, Kelly Meggers, an Iowa Division of Narcotics Enforcement
Special Agent, arranged to buy crack cocaine from Brewer, a suspected drug dealer,
with the help of a Drug Enforcement Administration (“DEA”) confidential source
(“CS”). The CS called Brewer and introduced him to Agent Meggers over the phone.
Agent Meggers arranged for the CS to meet Brewer on September 19, 2008, in order
to buy a bag of crack cocaine. During the conversation, Brewer warned that he always
has “a second set of eyes watch [his] back” during such deals.

On September 19, after strip searching the CS and equipping her with a digital
recording device, Agent Meggers provided the CS with prerecorded buy money and
drove her to the appointed location, a mall parking lot. A surveillance team consisting
of DEA agents and Cedar Rapids Police Department officers was already in place at
the parking lot. Brewer arrived in a white van and sold approximately 13.2 grams of
crack cocaine to the CS for $800.

Following the sale, Brewer drove the white van away from the mall. Having
learned ahead of time that Brewer’s driver’s license was suspended, Officer Dale
Moyle requested that a patrol officer in a marked car stop Brewer. Officer Jeff
Herbert pulled Brewer over. At least two other patrol cars arrived on the scene, and
Brewer was arrested for driving with a suspended license. During the stop, Officer
Chip Joecken recovered the $800 in prerecorded cash used in the undercover buy.

That same evening, Agent Meggers called Brewer to tell him that she was
pleased with the crack cocaine and to arrange another purchase the following week.
Despite what Brewer described as “the drama” of being arrested, he agreed to sell her
more crack. In a series of recorded phone calls, Meggers asked to buy “two of them”
at “8 a pop,” meaning that she wanted to purchase two $800 bags of crack cocaine.

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 During a September 23, 2009 phone call, Brewer directed Agent Meggers to go
to the same mall parking lot, where he told her she would find a cup on the ground.
Brewer instructed Meggers to retrieve a bag of crack cocaine hidden inside the cup
and to leave the money under a nearby rock. Before the transaction, surveillance
officers observed a purple Grand Am driven by Brewer’s girlfriend, Rosina Rhodes,
stop in a nearby Burger King parking lot. Rhodes opened the car door and picked up
a Burger King cup that was lying on the ground. Later, when Agent Meggers
approached the area of the parking lot identified by Brewer, she found a Burger King
cup with 27 grams of crack cocaine in it. Meggers left $1,600 in prerecorded buy
money under a nearby rock, as instructed.

On September 30, 2008, Agent Meggers met Brewer in the parking lot of an
apartment complex to buy more crack cocaine. When Meggers arrived, Brewer got
in her truck and, without speaking, pulled a bag containing approximately 29 grams
of crack cocaine out of his front pocket and placed it in the cupholder. Meggers paid
Brewer, after which he promptly exited her vehicle and walked away. Rhodes picked
Brewer up and drove away from the parking lot irregularly—doubling back over
streets and making U-turns—in an apparent attempt to avoid being followed.

In subsequent recorded phone calls, Agent Meggers arranged to buy more crack
cocaine from Brewer on October 9, 2008. Once again, surveillance officers positioned
themselves in various places in the mall parking lot to observe the transaction. Shortly
before noon, Rhodes parked her purple Grand Am in the lot. Twenty minutes later,
Brewer drove up. After speaking briefly with Rhodes, Brewer drove away. Rhodes
remained in her car, watching the area of the parking lot where the Burger King cup
had been left on September 23. Brewer then met Agent Meggers on the opposite side
of the mall. Brewer got into Meggers’s truck, and she drove him to a different part
of the parking lot. Brewer told her that he would reveal where the crack cocaine was
hidden after she paid him in full. Meggers balked at this request, but Brewer remained
steadfast. During their conversation, Brewer barely talked above a whisper and

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repeatedly turned up the radio. Agent Meggers later testified that Brewer was wearing
a Bluetooth headset, which he appeared to be using to speak with someone else.
Agent Meggers refused to pay without seeing the crack cocaine, and Brewer refused
to show her the crack before she gave him the money. After about twenty minutes,
Meggers drove Brewer back to his car.

Brewer was arrested as soon as he exited Meggers’s truck. The arresting
officers recovered two cell phones from Brewer. They also found a Bluetooth headset
on the ground nearby. Using cell phone records, Agent Meggers later discovered that
Brewer had been on the phone with Rhodes while he was in Meggers’s truck.

While Brewer was being arrested, several officers approached Rhodes, who had
been sitting in her car for nearly an hour. Rhodes consented to a search of her car and
told the officers they would find a handgun in the trunk. The officers found the gun,
which was loaded, in a case. The gun had a trigger lock on it. In a post-arrest
interview, Brewer admitted that he knew Rhodes had purchased the handgun and that
she always kept it in her trunk. Agent Meggers later searched the area of the parking
lot that Rhodes had been watching and found approximately 83 grams of crack
cocaine in a plastic shopping bag.

A federal grand jury returned a four-count indictment charging Brewer with
various drug offenses. The grand jury later returned a five-count superseding
indictment charging Brewer with conspiring with Rhodes to distribute fifty grams or
more of crack cocaine (Count I), distribution of five grams of more of crack cocaine
(Counts II, III, and IV), and possession with intent to distribute fifty grams or more
of crack cocaine (Count V).

Brewer moved to suppress the $800 seized during the September 19, 2008
traffic stop. Following a suppression hearing, the magistrate judge recommended

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denying Brewer’s motion. The district court adopted the magistrate judge’s report and
recommendation and denied Brewer’s motion to suppress.

The case proceeded to trial, and the jury found Brewer guilty on all counts. At
sentencing, the district court found that Brewer’s base offense level was 32. The
district court denied Brewer’s request for a two-level reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1, and applied a two-level enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1.2 The court also applied two-level
enhancements for role in the offense, see U.S.S.G. § 3B1.1(c), and for possession of
a firearm in connection with the offense, see U.S.S.G. § 2D1.1(b)(1). As a result, the
district court determined that Brewer’s total offense level was 38 and, with a criminal
history category of V, that Brewer’s advisory guidelines range was 360 months to life.
The court sentenced Brewer to 370 months’ imprisonment, to be followed by 10 years
of supervised release.

II. DISCUSSION

Brewer first challenges the denial of his motion to suppress. “We examine the
factual findings underlying the district court’s denial of the motion to suppress for
clear error and review de novo the ultimate question of whether the Fourth
Amendment has been violated.” United States v. Estey, 595 F.3d 836, 839-40 (8th
Cir.) (quoting United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009)), cert.
denied, 560 U.S. ----, 130 S. Ct. 3342 (2010). “In ‘reviewing the denial of a motion
to suppress, we must examine the entire record, not merely the evidence adduced at
the suppression hearing.’” United States v. Anderson, 339 F.3d 720, 723 (8th Cir.
2003) (quoting United States v. Martin, 982 F.2d 1236, 1240 n.2 (8th Cir. 1993)).

2
The obstruction-of-justice enhancement was based on the district court’s
finding that Brewer committed perjury when he testified that, among other things, he
was selling video games, not crack cocaine, to Agent Meggers.

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 Brewer argues that the police did not have probable cause to stop or arrest him
on September 19, 2008, and that the search of his vehicle incident to his arrest was
invalid. As an initial matter, we reject Brewer’s claim that the stop and arrest were
improper. We have held that “[i]f an officer determines that a person is driving on a
suspended license, then the officer has probable cause to arrest.” United States v.
Jones, 479 F.3d 975, 978 (8th Cir. 2007). Here, Officer Moyle saw Brewer drive
away from a drug transaction at the mall and, having already determined that Brewer
had a suspended license, see Iowa Code § 321.218, requested that a patrol officer stop
Brewer. Accordingly, we conclude that Officer Herbert had probable cause to stop
and arrest Brewer for driving with a suspended license. See Jones, 479 F.3d at 978.

Brewer’s second point is somewhat more nettlesome. Citing the Supreme
Court’s decision in Arizona v. Gant, 556 U.S. ----, 129 S. Ct. 1710 (2009), Brewer
argues that the search of his van was not a valid search incident to arrest because, after
he exited the van and was arrested, the arresting officers could not have reasonably
believed that he could access the interior of the van. Therefore, according to Brewer,
the $800 in prerecorded buy money seized during the search must be suppressed.

The Supreme Court has repeatedly held that “searches conducted outside the
judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” See, e.g., Gant, 129 S. Ct. at 1716
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception is a
search incident to a lawful arrest. Id. Following a lawful “custodial arrest,” a search
of the arrestee’s person incident to arrest “requires no additional justification.” United
States v. Robinson, 414 U.S. 218, 235 (1973). The search of a vehicle is different,
however—the Supreme Court held in Gant that “[p]olice may search a vehicle
incident to a recent occupant’s arrest only if the arrestee is within reaching distance
of the passenger compartment at the time of the search or it is reasonable to believe
the vehicle contains evidence of the offense of arrest.” Gant, 129 S. Ct. at 1723.

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 Brewer’s argument is premised on the assertion, which he makes for the first
time on appeal, that the police seized the cash from his van. In his motion to suppress,
Brewer asserted that the cash was found in his pants pocket.3 At the suppression
hearing, however, DEA Officer Moyle, who was part of the surveillance team at the
mall during the September 19 transaction, testified that the cash was seized from
Brewer’s van. The magistrate judge credited Officer Moyle’s testimony and found
that the cash was seized from the van.

As noted, we review the entire record, including the evidence adduced at trial,
in reviewing the denial of a motion to suppress. See Anderson, 339 F.3d at 723. The
Supreme Court has stated that when a district court’s factual “finding is based on his
decision to credit the testimony of one or two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear error.”
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). In this case, Officer
Moyle admitted in his testimony at the suppression hearing that he did not participate
in the stop, arrest, or search of Brewer on September 19, 2008. Officer Moyle thus
lacked firsthand knowledge about where the seized money was found. Officer
Joecken, who searched Brewer incident to the September 19 arrest, did not testify at
the suppression hearing. At trial, however, Officer Joecken testified that he found the
$800 in Brewer’s pants pocket. Brewer likewise testified at trial that the cash was
seized from his pocket. Thus, the two participants in the search—Officer Joecken and
Brewer—agreed that the $800 was seized from Brewer’s person, thereby contradicting
Officer Moyle’s testimony. The district court adopted the magistrate judge’s finding
that the cash was seized from Brewer’s van. After reviewing the entire record, we
conclude that this is the rare case where the district court’s factual finding based on
a decision to credit the testimony of a witness was clearly erroneous. Because the

3
The Supreme Court decided Gant after Brewer’s trial and before this appeal.
Brewer now claims that the money was seized from his van rather than from his
person.

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cash was seized from Brewer’s pants pocket, the holding in Gant concerning when the
police may search the passenger compartment of a vehicle incident to arrest does not
apply. Here, the officers had probable cause to arrest Brewer, and we conclude that
the search of his person was a valid search incident to arrest, see Robinson, 414 U.S.
at 234.

Brewer next argues that the evidence was insufficient to support the jury’s
verdict. “We review the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the verdict, and we will reverse only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” United States
v. McCraney, --- F.3d ----, 2010 WL 2852970, at *3 (8th Cir. July 22, 2010) (citing
United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir. 2006)).

Brewer does not argue that the Government failed to prove beyond a reasonable
doubt any specific element of any of the offenses for which he was convicted.
Instead, Brewer broadly contends that “the government witnesses did not tell the truth
and the government’s evidence is inconsistent,” and that the “cumulative effect” of
these alleged untruths and inconsistencies “establish[es] that the verdict should be set
aside.” We have held that “[c]redibility determinations by a jury are ‘virtually
unassailable on appeal.’” United States v. Nguyen, 608 F.3d 368, 376 (8th Cir. 2010)
(quoting United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008)). And we have
held that “we must presume that the trier of fact resolved any conflicts in favor of the
Government.” United States v. Littlewind, 595 F.3d 876, 882 (8th Cir. 2010) (citing
United States v. Water, 413 F.3d 812, 816 (8th Cir. 2005)). Because we will not
substitute our view of the evidence for the jury’s decision, see United States v.
Triplett, 104 F.3d 1074, 1080 (8th Cir. 1997), we reject Brewer’s sufficiency of the
evidence claim, see Nguyen, 608 F.3d at 376.4

4
In connection with this claim, Brewer argues that his attorney was
constitutionally ineffective for failing to present the “arsenal of evidence” at his
disposal, which, according to Brewer, “could have been used to challenge the

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 In any event, it is clear that the evidence against Brewer was compelling. Agent
Meggers testified at length about arranging and executing multiple controlled buys of
crack cocaine from Brewer; much of Meggers’s testimony was corroborated by audio
and visual recordings. Various law enforcement officials testified that they witnessed
Brewer’s interactions with the CS and Agent Meggers as well as Rhodes’s
involvement. And abundant physical evidence—including several bags of crack
cocaine, the prerecorded buy money, and the Burger King cup—tied Brewer to the
crack cocaine sales. It is beyond serious question that the evidence in this case was
sufficient to sustain Brewer’s convictions.

Brewer also argues that the district court abused its discretion in refusing to
instruct the jury that Brewer faced a twenty-year mandatory minimum sentence if
convicted on Counts I or V, and a ten-year mandatory minimum sentence if convicted
on Counts II, III, or IV. See United States v. Anderson, 533 F.3d 623, 632 (8th Cir.
2008) (“This court reviews the denial or acceptance of a proposed jury instruction for
abuse of discretion.” (citing United States v. Counce, 445 F.3d 1016, 1019 (8th Cir.
2006))). The district court is not required to instruct a jury about the sentencing
consequences of its verdict. Shannon v. United States, 512 U.S. 573, 575 (1994).
Indeed, “providing jurors sentencing information invites them to ponder matters that
are not within their province, distracts them from their factfinding responsibilities, and
creates a strong possibility of confusion.” Id. at 579; see also United States v.
Thomas, 895 F.2d 1198, 1200 (8th Cir. 1990) (“To inform a federal jury about a
defendant’s punishment would only introduce improper and confusing considerations
before it.”). Accordingly, we find no abuse of discretion in the district court’s refusal
to instruct the jury about the punishment Brewer faced if convicted.

government’s evidence.” Such claims “are usually best litigated in collateral
proceedings,” United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006),
and, as is generally true on direct appeal, the record in this case “is not sufficiently
developed to let us pass on the merits of [this] claim,” id. Thus, we decline to address
Brewer’s ineffective assistance of counsel claim. See id.

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 Brewer next challenges the district court’s decision to impose a two-level
enhancement for possession of a firearm based on its finding that Brewer possessed
the firearm in Rhodes’s trunk in connection with a drug trafficking offense. See
U.S.S.G. § 2D1.1(b)(1). We review the district court’s finding for clear error. United
States v. Braggs, 317 F.3d 901, 904 (8th Cir. 2003) (citing United States v. Atkins, 250
F.3d 1203, 1213 (8th Cir. 2001)).

The loaded handgun at issue here was recovered from a case in Rhodes’s trunk
and was equipped with a trigger lock. Brewer first argues that he never had
possession of the gun. “[P]ossession may be constructive, if it was reasonably
foreseeable that a co-conspirator would have possessed a weapon.” Braggs, 317 F.3d
at 904. Under the guidelines, co-conspirators are generally responsible for “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(A). Here, Brewer was
convicted, among other things, of conspiring with Rhodes to distribute crack cocaine
(Count I).5 And at Brewer’s sentencing hearing, Officer Steven Warner, who seized
the handgun from Rhodes’s trunk, testified that Brewer admitted in a post-arrest
interview that he knew that Rhodes owned a gun and that it was in the trunk of her
Grand Am on October 9. Because Brewer and Rhodes conspired to distribute crack
cocaine, Brewer’s knowledge that Rhodes had the loaded gun in her car during the
aborted October 9 transaction is sufficient to establish Brewer’s constructive
possession of the handgun. See Braggs, 317 F.3d at 904.

Brewer also argues that the handgun, which was indisputably present during the
October 9 transaction, was not connected to the offense. To carry its burden of
proving that the firearm enhancement should apply under § 2D1.1, “[t]he government

5
Rhodes was tried separately and, following a mistrial, pled guilty to one count
of using a communications device to facilitate a drug trafficking offense. See United
States v. Rhodes, No. 09-3911, 2010 WL 2890590 (8th Cir. July 26, 2010)
(unpublished per curiam).

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must simply show that it is not clearly improbable that the weapon was connected to
the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008);
U.S.S.G. § 2D1.1 cmt. n.3. “[T]he government need not show that the defendant used
or even touched [the] weapon to prove a connection between the weapon and the
offense.” Id. (quoting United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000)
(per curiam)).

While Brewer attempted to sell crack cocaine to Agent Meggers on October 9,
2008, Rhodes, sitting in her car, kept watch over Brewer’s nearby stash of crack
cocaine and stayed on the phone with Brewer, all while the loaded handgun remained
in the trunk of her car. Under the circumstances, we cannot say that the district court
clearly erred in finding that the gun was connected to Brewer’s drug trafficking
activities. See United States v. Jones, 327 F.3d 654, 657 (8th Cir. 2003) (concluding
that “it was not clearly improbable that the firearms possessed by defendant
facilitated, or had the potential to facilitate, the drug trafficking offense” because
“[t]he police found the firearms and ammunition in the trunk of the same car where
they found the cocaine base” (internal quotation marks omitted)); Peroceski, 520 F.3d
at 889 (“The gun need not even be operable for it to be connected to the offense.”
(citing United States v. Luster, 896 F.2d 1122, 1128-29 (8th Cir. 1990))); see also
United States v. Heldberg, 907 F.2d 91, 93 (9th Cir. 1990) (concluding that the
presence of an unloaded firearm in a locked briefcase in the defendant’s trunk was
sufficient to justify a two-level enhancement under § 2D1.1(b)(1)).

Finally, Brewer challenges the reasonableness of his sentence, arguing that the
district court should have granted a downward variance based on the sentencing
disparity between crack and powder cocaine. “We review the reasonableness of a
defendant’s sentence under a ‘deferential abuse-of-discretion standard,’ ensuring that
the district court committed no significant procedural error and that the sentence is
substantively reasonable.” United States v. Midkiff, --- F.3d ----, 2010 WL 2790937,
at *12 (8th Cir. July 16, 2010) (quoting Gall v. United States, 552 U.S. 38, 52 (2007)).

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 The Supreme Court held in Kimbrough v. United States, 552 U.S. 85 (2007),
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 [18 U.S.C.] § 3553(a)’s purposes,” id. at 110. See
also Spears v. United States, 555 U.S. ---, 129 S. Ct. 840, 843-44 (2009) (per curiam)
(“[W]e 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.”).
Following Kimbrough and Spears, we have consistently held that district courts are
not required to vary downward based on the crack/powder disparity in the advisory
guidelines. See, e.g., United States v. Woods, 603 F.3d 1037, 1040 (8th Cir. 2010);
United States v. Davis, 583 F.3d 1081, 1099 (8th Cir. 2009), cert. denied, 559 U.S. ---,
130 S. Ct. 1555 (2010). Here, the district court considered and rejected Brewer’s
request for a variance based on the crack/powder disparity. Thus, “[t]he district court
was well within its discretion not to vary downward.” See Davis, 583 F.3d at 1099.6

III. CONCLUSION

For the foregoing reasons, we affirm Brewer’s convictions and sentence.7

6
Brewer also argues that the district court committed a procedural error by
failing to adequately explain its decision not to vary downward based on the
crack/powder disparity. (Brewer does not argue that the district court believed that
it lacked the authority to vary based on the crack/powder disparity.) Because he raises
this claim for the first time on appeal, our review is for plain error. Brewer thus bears
the burden of showing, among other things, that “there is a reasonable probability [he]
would have received a lighter sentence but for the error.” See United States v. Bain,
586 F.3d 634, 640 (8th Cir. 2009) (per curiam) (citing United States v. Pirani, 406
F.3d 543, 552 (8th Cir. 2005) (en banc)). Brewer has not attempted to make such a
showing, so his plain error claim necessarily fails. See United States v. Chauncey, 420
F.3d 864, 878 (8th Cir. 2005).
7
Pending before us is Brewer’s motion to file a pro se supplemental reply brief.
We generally do not consider pro se arguments raised by defendants who are

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BRIGHT, Circuit Judge, concurring in part and dissenting in part.

I concur in the denial of the motion to suppress and affirmance of Brewer’s
convictions but dissent as to the sentence.

Who could have guessed that President Eisenhower’s decision nearly sixty
years ago to create a national system of interstate highways would have an effect on
sentencing in Iowa today? Well, it has. In the Northern District of Iowa, cases arising
on one side of the interstate go to one district court judge while cases arising on the
other go to a second judge. And one active judge uses a 1:1 ratio between crack and
powder cocaine when sentencing violators of crack cocaine laws while the other

represented by counsel on appeal. See, e.g., United States v. Moore, 481 F.3d 1113,
1114 n.2 (8th Cir. 2007). Because we granted Brewer’s earlier motion to file a pro
se supplemental brief, we exercise our discretion to grant his motion to file a
supplemental reply brief. However, after considering his supplemental briefs, we
conclude that the arguments he raises pro se are uniformly without merit. See United
States v. Williams, 599 F.3d 831, 834 n.3 (8th Cir.), cert. denied, 559 U.S. ---, 130 S.
Ct. 2134 (2010). We deny Brewer’s motion for production of documents and his
motion to supplement the record. In addition, on August 27, 2010, Brewer’s counsel
submitted a letter pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure
arguing that Brewer is entitled to resentencing under a retroactive application of the
Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). We
note that Rule 28(j) letters are to be used only to call our attention to significant
authorities unknown to the parties pre-argument, should refer to the relevant page of
the party’s brief or point argued orally, and should not contain argument. Fed. R.
App. P. 28(j). We disregard the submission to the extent it includes material outside
these limitations. See Davis v. U.S. Bancorp, 383 F.3d 761, 763 (8th Cir. 2004). In
any event, the letter raises no issues of import because the Fair Sentencing Act
contains no express statement that it is retroactive, and thus the “general savings
statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the
crime was committed. See United States v. Brown, No. 10-1791, 2010 WL 3958760,
at *1 (8th Cir. Oct. 12, 2010) (unpub.); United States v. Gomes, --- F.3d ----, 2010
WL 3810872, at *2 (11th Cir. Oct. 1, 2010) (per curiam); United States v. Carradine,
--- F.3d ----, 2010 WL 3619799, at *4-5 (6th Cir. Sep. 20, 2010).

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follows the sentencing guidelines – which here applied a 33:1 ratio.8 So in the
Northern District of Iowa, the location of the crime relative to the interstate is a
significant factor in crack cocaine sentencing. In my view, the difference in sentences
between similar offenders should not depend on which side of the interstate a crime
was committed or where the offender was arrested. See United States v. Ayala, 610
F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to
reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately
150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to
life.9 That’s the same recommendation as if Brewer had committed second-degree
murder. Unfortunately, equating crack cocaine with murder is not uncommon. See
Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336
(Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term
for a crack offense surpassed that of murder.”). Brewer requested a variance from the
harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and
he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a
1:1 crack/powder ratio.10

8
After the Sentencing Commission’s 2007 revisions to the Guidelines, the
crack/powder ratio varies between 25 to 1 and 80 to 1. Kimbrough v. United States,
552 U.S. 85, 106 (2007). The Commission is currently contemplating revisions to the
Guidelines pursuant to the Fair Sentencing Act of 2010.
9
Brewer’s base offense level was 32, his total offense level was 38, and his
criminal history category was V. By way of comparison, for the same amount of
powder cocaine, the guidelines recommend a sentence of approximately eight to nine
years.
10
Brewer faced a 20-year mandatory minimum sentence, and so he asked the
judge to vary down from 30 to 20 years. Still a harsh sentence, but in this case, a
sentencing court could go no lower absent Congressional action — which finally
occurred on July 28, 2010, when President Obama signed the Fair Sentencing Act of

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 The court imposed a 370-month sentence. That’s 30 years and 10 months.11
The district court denied Brewer’s request for a variance, stating “I did consider and
reject the request for a variance based on the disparity in punishment between crack
cocaine and cocaine. As I looked at the statutory factors under 18 U.S.C. 3553(a), I
determined that, on balance, this sentence was not out of the range of reasonableness
and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary
downward on the basis of the crack/powder disparity. But I believe the district
court’s decision does not reflect a reasoned and informed exercise of discretion.12 The
district court cavalierly applied a guideline which often does not comply with §
3553(a) in the mine-run case, treats Brewer like a murderer, and results in
unwarranted intra-district disparity. Sadly, the interstate and corresponding judicial
assignment made a substantial difference at Brewer’s sentencing.

2010. If this new law were applied, Brewer would face a 10-year mandatory
minimum. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372
(2010).
11
Brewer, by the way, was 32 years old when sentenced, so he will be out of
prison sometime near 2040, when he is 60 years old. At the current cost of
incarceration, about $26,000 per year, taxpayers will have spent around $780,000 to
imprison Brewer. See 74 Fed. Reg. 33,279 (July 10, 2009) (reporting that in 2008, the
average annual cost of incarceration for federal inmates was $25,895). Did I mention
that this sentence was for 150 grams of crack sold to government agents on four
occasions?
12
I note that sometimes our court does not even require sentencing judges to
respond to a defendant’s motion for a variance on the basis of the crack/powder
disparity. See United States v. Bowie, __ F.3d __, 2010 WL 3325606, at *12-14 (8th
Cir. 2010) (Bright, J. dissenting) (concluding the majority erred in affirming the
district court’s silence where the defendant properly sought a variance based on the
crack/powder disparity).

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 Although the Supreme Court’s recent sentencing jurisprudence emphasizes
district court discretion, see Gall v. United States, 552 U.S. 38, 59-60 (2007), and
particularly with respect to the crack/powder disparity, see Kimbrough v. United
States, 552 U.S. 85, 110 (2007); Spears v. United States, 129 S. Ct. 840, 843-44
(2009), surely the Supreme Court has not meant to approve a sentencing world in
which the assignment of a case to a specific judge becomes a meaningful and
significant factor at sentencing.13 The denial of a request for a variance on the basis
of the crack/powder disparity should require more than a simple “No.” How much
more? At least some explanation of how a sentence predicated on the crack cocaine
guidelines complies with the principal that a sentence be sufficient but not greater than
necessary. See 18 U.S.C. § 3553(a). Why should this be the rule? For one, relying
on the crack cocaine guidelines to recommend a sentence sufficient but not greater
than necessary is suspect. Compare Rita v. United States, 551 U.S. 338, 347-48
(2007) (explaining the process by which the Commission attempts to carry out the §
3553(a) objectives “wholesale”), with Kimbrough, 552 U.S. at 109 (stating that the
crack cocaine guidelines “do not exemplify the Commission’s exercise of its
characteristic institutional role”). For another, the need to avoid unwarranted disparity
should call for district courts to consider and explain the imposition of a sentence
inconsistent with other judges in the same federal district.

A. The Crack Cocaine Guidelines

The political climate surrounding the enactment of the Controlled Substances
Act of 1986 (CSA) provides the first glimpse at how Congress and the Sentencing
Commission created a crack cocaine sentencing scheme untethered to the goals of
sentencing. As described by one insider, the political climate was “frenzied.” Ryan

13
Having reviewed criminal appeals from the Northern District of Iowa, as well
as studied this court’s opinions, this judge anecdotally observes that since Booker it
appears one judge in this district frequently imposes below-guideline sentences while
the other does so very rarely.

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S. King & Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After
Booker at 8 (Jan. 2006), http://www.sentencingproject.org/doc/publications/
dp_sentencing_cc_afterbooker.pdf. The CSA moved forward with “breakneck speed
and little time for deliberation” in which “numbers were being pulled out of the air
with no empirical foundation.” Id. The process was a “political power game” where
“politicians tried to one-up each other with calls for more severe penalties.” Id. at 9
(quotation omitted).

The Sentencing Commission, notwithstanding the political power games
underlying crack cocaine sentencing, adopted the 100:1 statutory ratio in creating the
guidelines. See United States Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy at v (Feb.1995) (1995 Report). As
observed by the Supreme Court, unlike the sentencing guidelines as a whole, the
Commission “did not use [an] empirical approach in developing the Guidelines
sentences for drug-trafficking offenses.” Kimbrough, 552 U.S. at 96. This lack of an
empirical approach to the creation of guidelines for crack cocaine counsels against
according controlling, or even significant, weight to the guidelines. See, e.g., United
States v. Dorvee, ___ F.3d ___, 2010 WL 3023799, at *11 (2d Cir. Aug. 4, 2010)
(holding that deference to the Guidelines depends on the thoroughness of the
Commission’s analysis and the validity of its reasoning).

In its 1995 Special Report to Congress, the Sentencing Commission succinctly
explained the problem: “the present 100-to-1 quantity ratio is too great.” 1995 Report
at iii. The ratio “creates anomalous results by potentially punishing low-level (retail)
crack dealers far more severely than their high-level (wholesale) suppliers of the
powder cocaine that served as the product for conversion into crack.” Id. The
Commission determined, “[d]espite the unprecedented level of public attention
focused on crack cocaine, a substantial gap continues to exist between the anecdotal
experiences that often prompt a call for action and empirical knowledge upon which

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to base sound policy.” Id. at vi. But Congress did nothing and left the federal courts
to apply a guideline that had little persuasive force.

In 2002, the Commission again explained to Congress the unfairness of crack
cocaine sentencing. The Commission found that quantity-based penalties (1)
“overstate[] the relative harmfulness of crack cocaine” compared to powder cocaine;
(2) “sweep too broadly” and “apply most often to lower level offenders[;]” (3)
“overstate the seriousness of most crack cocaine offenses” and “fail to provide
adequate proportionality[;]” and (4) the “current penalties’ severity mostly impacts
minorities[.]” United States Sentencing Commission, Report to the Congress:
Cocaine and Federal Sentencing Policy 93, 97, 100, 102 (May 2002) (2002 Report).14

14
The disproportionate impact of the crack cocaine guidelines on minorities
should concern every federal judge, and provide another reason why guideline
sentences for crack cocaine offenders warrant special attention. See Texas Tough at
336 (“By the early 1990s, nearly 90 percent of crack prosecutions targeted blacks,
most of them low-level street dealers.”).
The literature overwhelmingly establishes that minorities, especially African-
American men, have unduly suffered from the harsh crack cocaine guidelines. “On
any given day, nearly one-third of black men in their twenties are under the
supervision of the criminal justice system – either behind bars, on probation, or on
parole.” Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in
African American Communities, 56 Stan. L. Rev. 1271, 1272 (2004) (Roberts); see
also Carol A. Brook, Racial Disparity Under the Federal Sentencing Guidelines, 35
Litig., Fall 2008, at 1, 15. (“African-Americans alone make up almost 40 percent of
the federal prison population, although they constitute only 13 percent of our
country’s population.”).
The disparity between Caucasian and African-American drug offenders cannot
be explained by rates of drug use: “[a]lthough whites have a higher rate of illegal
drug use, 60% of offenders imprisoned for drug charges in 1998 were black.” Roberts
at 1275. “The increase in the rates of incarceration of young black males is due
primarily to the focus of the ‘war on drugs’ on black drug users.” David H. Angeli,
A “Second Look” at Crack Cocaine Sentencing Policies: One More Try for Federal

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Still, neither Congress nor the Commission took action to remedy these significant
issues in crack cocaine sentencing.

In 2007, following the Booker “revolution,” the Commission attempted to
remedy crack cocaine sentencing by reducing the base offense level for crack offenses
by two levels. See U.S.S.G. App. C., amend. 706; see also Kimbrough, 552 U.S. at
99-100. “This modest amendment yields sentences for crack offenses between two
and five times longer than sentences for equal amounts of powder.” Kimbrough, 552
U.S. at 100. The Commission described its “amendment as only . . . a partial remedy
for the problems generated by the crack/powder disparity.” Id. (quotation omitted).
Consequently, the current crack guidelines, as amended in 2007, do not solve the
problems identified in 2002, leaving federal courts to apply guidelines that overstate
the harmfulness of crack cocaine, fail to provide adequate proportionality, and mostly
impact minorities.

Given this history, it is little wonder that even after 2007, the crack cocaine
guidelines recommend sentences that may not conform to § 3553(a) in the average
case. See Kimbrough, 552 U.S. at 110. Accordingly, sentencing courts should
carefully consider whether the crack guidelines recommend an appropriate sentence
(in many cases they may not) and exercise caution in applying guidelines that too
often yield unreasonable results. Here, treating the possession and delivery of 150

Equal Protection, 34 Am. Crim. L. Rev. 1211, 1212 (1997); see also Roberts at 1275
(“The War on Drugs is responsible for this level of black incarceration.”).
These startling statistics should give pause to any court considering relying on
the crack cocaine guidelines. Where the very creators of the guideline acknowledge
the disproportionate impact on minorities, a request to vary from those guidelines
merits careful consideration. Otherwise, federal courts run the risk of furthering the
pernicious effects experienced by minorities as a result of guidelines that originated
from political gamesmanship rather than a deliberate and thoughtful empirical
approach.

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grams of crack cocaine as equivalent to murder is simply unreasonable. But that is not
the only problem with Brewer’s sentence.

B. Unwarranted disparity

In Kimbrough, the Supreme Court determined that 18 U.S.C. § 3553(a)(6)15
would work to prevent the sort of disparity observed in the Northern District of Iowa.
In that case, the government argued that district courts should not be permitted to
deviate from the guidelines based on disagreement with the crack/powder ratio. 552
U.S. at 107. The government argued that allowing sentencing courts such discretion
could result in “defendants with identical real conduct” receiving “markedly different
sentences, depending on nothing more than the particular judge drawn for sentencing.”
Id. (quotation omitted).

The Court rejected this argument, explaining that under 18 U.S.C. § 3553(a)(6),
“district courts must take account of sentencing practices in other courts . . . . To reach
an appropriate sentence, these disparities must be weighed against the other § 3553(a)
factors and any unwarranted disparity created by the crack/powder ratio itself.” Id.
at 108 (emphasis added). The implication of Kimbrough is clear: district courts have
a responsibility to consider the sentencing practices of other courts; otherwise
differences in sentencing similar offenders could result from something as
meaningless as which side of the interstate an offense is committed.

Brewer properly sought a variance based on the crack/powder disparity. He
argued that a guideline sentence would create unwarranted disparity with other
Northern District of Iowa crack cocaine sentences and cited United States v. Gully,

15
That section provides that district courts shall consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

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619 F. Supp.2d 633 (N.D. Iowa 2009). In Gully, Judge Bennett thoroughly examined
the crack/powder disparity and concluded the appropriate ratio was 1:1. Id. at 644.
But here Judge Reade never accounted for the sentencing practice of her colleague and
Brewer’s sentence may depend more on the judge he drew for sentencing than the
factors in 18 U.S.C. § 3553(a).

The majority, by permitting district courts to say little or nothing in declining
to vary from the crack cocaine guidelines, too easily sacrifices parity on the altar of
discretion. To be sure, district courts are not required to vary from the crack
guidelines on the basis of the crack/powder disparity. But in light of the history of the
guidelines’ promulgation, their impact on minorities, and the Supreme Court’s remedy
for disparity as discussed in Kimbrough, an exercise of discretion that concludes the
crack/powder disparity does not warrant a variance requires more explanation than
was done in this case.

Although § 3553(a) does not “insist[] upon a full opinion in every case[,]” the
statute “does call for the judge to state . . . reasons.” Rita, 551 U.S. at 356 (quotation
omitted). Here, the lack of explanation for denying Brewer’s request for a variance
can only undermine the public trust. See id. (“Judicial decisions are reasoned
decisions. Confidence in a judge’s use of reason underlies the public’s trust in the
judicial institution.”). The sentencing practices in the Northern District of Iowa may
be those described in a recent report by the Justice Department: “More and more, we
are receiving reports from our prosecutors that in many federal courts, a defendant’s
sentence will largely be determined by the judicial assignment of the case; i.e. which
judge in the courthouse will conduct the sentencing. . . . This is extremely
problematic. . . . [T]he existence of these dichotomous regimes will, over time, breed
disrespect for the federal courts.” U.S. Dept. of Justice, Criminal Division, Report to
the United States Sentencing Commission at 2 (June 28, 2010).

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 I thus respectfully dissent. So long as differences in sentencing in the Northern
District of Iowa are probably traceable to the location of a highway, the people of
Iowa will question the propriety and fairness of sentencing. Even in this era of
sentencing discretion, the judges in the Northern District of Iowa in particular, and
across the country in general, have a responsibility to sentence drug offenders in a
consistent and fair manner. I suggest that in remedying the crack cocaine sentencing
disparity in the Northern District of Iowa, fairness favors Judge Bennett’s 1:1 ratio
over the ratios currently recommended by the guidelines. This court should vacate
Brewer’s sentence and remand for further consideration.

______________________________

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