United States v. Lewis

FILED
United States Court of Appeals
Tenth Circuit

October 29, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 09-3329
VICTOR LAVONE LEWIS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE OF KANSAS
(D.C. NO. 2:06-CR-20139-CM-1)

Melanie S. Morgan, Morgan Pilate, LLC, Olathe, Kansas, for Defendant -
Appellant.

Leon Patton, Assistant United States Attorney (Lanny D. Welch, United States
Attorney, with him on the brief), District of Kansas, Kansas City, Kansas, for
Plaintiff - Appellee.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

ANDERSON, Circuit Judge.
 Defendant and appellant, Victor Lavone Lewis, appeals his sentence of 168

months’ imprisonment, imposed following his guilty plea to several counts

involving the distribution of cocaine base (crack). Because we find his sentence

neither procedurally nor substantively unreasonable, we affirm.

BACKGROUND

On September 14, 2006, Mr. Lewis was charged by indictment with one

count of conspiring to distribute more than 50 grams of crack; two counts of

distributing more than five grams of crack; and one count of possessing crack

with the intent to distribute it. He was arrested on December 29, 2006, and

released on bond the following January. Mr. Lewis’s probation officer then

submitted a petition alleging that Mr. Lewis had violated the conditions of his

release by submitting urine samples indicating marijuana usage and by violating

his travel restrictions by being in Tulsa, Oklahoma, on February 13, 2007, where

he committed a traffic violation. The district court ordered the issuance of a

warrant, pursuant to which Mr. Lewis was arrested and his pretrial release was

revoked. As indicated above, he pled guilty on April 14, 2008. Because

Mr. Lewis’s crime involved crack cocaine, rather than powder cocaine, he was

subject to the anomalous crack cocaine sentencing provisions. We explain the

history of these provisions.

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 I. Development of Crack/Powder Disparity:

At the time Mr. Lewis was sentenced, the sentencing ratio of crack cocaine

to powder cocaine was 100:1. In other words, for purposes of drug quantities for

sentencing under the guidelines, one gram of crack triggered the same mandatory

penalties as one hundred grams of powder cocaine. “The 100:1 ratio yields

sentences for crack offenses three to six times longer than those for powder

offenses involving equal amounts of drugs.” Kimbrough v. United States, 552

U.S. 85, 94 (2007).

This ratio has resulted in a general tumult concerning its propriety. When

the crack/powder disparity was first introduced in the Anti-Drug Abuse Act of

1986, crack cocaine “was a relatively new drug . . . but it was already a matter of

great concern.” Id. at 95. For a variety of reasons, Congress believed crack was

significantly more dangerous than powder cocaine, an assumption that proved

eventually to be wrong. 1

1
The reasons Congress believed crack was more dangerous than powder
include the facts that:

(1) crack was highly addictive; (2) crack users and dealers were more
likely to be violent than users and dealers of other drugs; (3) crack
was more harmful to users than powder, particularly for children who
had been exposed by their mothers’ drug use during pregnancy; (4)
crack use was especially prevalent among teenagers; and (5) crack’s
potency and low cost were making it increasingly popular.

Kimbrough, 552 U.S. at 95-96 (citing United States Sentencing Commission,
Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002)).

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 Thus, the Sentencing Commission subsequently determined “that the

crack/powder sentencing disparity is generally unwarranted.” Id. at 97. While

not believing that it should eliminate entirely the disparity between crack and

powder sentences, the Commission “has several times sought to achieve a

reduction in the crack/powder ratio.” Id. at 99. In 1995, the Commission

proposed amendments to the guidelines replacing the 100:1 ratio with a 1:1 ratio,

but Congress, exercising its authority under 28 U.S.C. § 994(p), rejected the

amendments, while directing the Commission itself to propose revisions to the

crack/powder drug quantity ratio. 2

The Commission then issued reports in 1997 and 2002, “recommending that

Congress change the 100:1 ratio prescribed in the 1986 Act.” Kimbrough, 552

U.S. at 99. The 1997 Report proposed a 5-to-1 ratio, and the 2002 Report

recommended lowering the ratio “at least” to 20 to 1. Congress did not act on

either Report.

In the Commission’s 2007 Report, the Commission again encouraged

Congress to amend the 1986 Act to adjust the 100-to-1 ratio. “This time,

however, the Commission did not simply await congressional action. Instead, the

Commission adopted an ameliorating change in the Guidelines. The alteration,

which became effective on November 1, 2007 [Amendment 706], reduces the base

2
28 U.S.C. § 922(p) requires the Commission to submit proposed guidelines
amendments to Congress, and provides that such amendments become effective
unless “modified or disapproved by . . . Congress.”

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offense level associated with each quantity of crack by two levels.” Id. at 99-100

(citation omitted); see also Dillon v. United States, 130 S. Ct. 2683, 2688 (2010).

By virtue of Amendment 706, sentences for crack offenders are “between two and

five times longer than sentences for equal amounts of powder.” Kimbrough, 552

U.S. at 100. The Commission noted that “[a]ny comprehensive solution requires

appropriate legislative action by Congress.” Id. (quoting 2007 Report 10).

There have been increasingly urgent requests from other quarters to make

changes to the crack/powder ratio. Indeed, the United States Attorney General

Eric Holder recently stated:

It is the view of this Administration that the 100-to-1 crack-powder
sentencing ratio is simply wrong. It is plainly unjust to hand down
wildly disparate prison sentences for materially similar crimes. It is
unjust to have a sentencing disparity that disproportionately and
illogically affects some racial groups.

Attorney General Eric Holder at the D.C. Court of Appeals Judicial Conference

(June 19, 2009) (available at http://www.justice.gov/ag/speeches/2009/ag-speech-

090619.html). Additionally, Assistant Attorney General Lanny A. Breuer has also

recently remarked:

[W]e cannot ignore the mounting evidence that the
current cocaine sentencing disparity is difficult to justify based on the facts and science, in
inherently more addictive substance than powder cocaine. We know of no other
controlled substance where the penalty structure differs so dramatically because
of the drug’s form.
Moreover, the Sentencing Commission has documented that
the quantity-based cocaine sentencing scheme often punishes low-
level crack offenders far more harshly than similarly situated powder

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 cocaine offenders. . . . The impact of these laws has fueled the belief
across the country that federal cocaine laws are unjust.

Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder

Disparity: Hearing Before the Subcomm. on Crimes and Drugs of the S. Comm.

on the Judiciary, 111 th Cong. 1 (2009) (Statement of Lanny A. Breuer, Assistant

Attorney Gen. of the Criminal Division, United States Department of Justice) at

9.

Assistant A.G. Breuer recognized, however, that prosecutors and courts

must follow the current laws, subject to the courts’ ability to vary from the crack

guidelines, until Congress effects a change:

Until a comprehensive solution – one that embodies new
quantity thresholds and perhaps new sentencing enhancements – can
be developed and enacted as legislation by Congress and as amended
guidelines by the Sentencing Commission, federal prosecutors will
adhere to existing law. We are gratified that the Sentencing
Commission has already taken a small step to ameliorate the 100:1
ratio contained in existing statutes by amending the guidelines for
crack cocaine offenses. We will continue to ask federal courts to
calculate the guidelines in crack cocaine cases, as required by
Supreme Court decisions. However, we recognize that federal courts
have the authority to sentence outside the guidelines in crack cases or
even to create their own quantity ratio. Our prosecutors will inform
courts that they should act within their discretion to fashion a
sentence that is consistent with the objectives of 18 U.S.C. § 3553(a)
and our prosecutors will bring relevant case-specific facts to the
courts’ attention.

Id. at 11.

Congress finally took action recently, when it enacted the Fair Sentencing

Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). This Act reduces

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that crack/powder ratio to 18-1. It is not, however, retroactive and thus does not

apply to this case. It does, on the other hand, relegate this case to a relatively

short shelf-life, inasmuch as defendants being sentenced henceforth will be

sentenced under a different applicable ratio.

The explicit crack/powder ratio is, unfortunately, not the only source of

some confusion concerning the application of the crack sentencing guidelines.

The question arose, and divided the circuit courts of appeal, as to whether “a

sentence . . . outside the guidelines range is per se unreasonable when it is based

on a disagreement with the sentencing disparity for crack and powder cocaine

offenses.” United States v. Kimbrough, 174 Fed. Appx. 798, 799 (4 th Cir. 2006)

(unpublished) (per curiam), rev’d, 552 U.S. 85 (2007). The Supreme Court held

that a district judge “may determine . . . that, in the particular case, a within-

Guidelines sentence is ‘greater than necessary’ to serve the objectives of

sentencing. In making that determination, the judge may consider the disparity

between the Guidelines’ treatment of crack and powder cocaine offenses.”

Kimbrough, 552 U.S. at 91 (citation omitted). Thus, district courts are permitted

to vary from the advisory guideline sentence calculated with the 100:1 ratio.

Further confusion arose, however, as to whether Kimbrough contemplated

variances from the 100:1 ratio only when the sentencing court, looking at the

particular circumstances of the defendant and his offense under the rubric of

§ 3553(a), felt a variance was appropriate in the particular case before it, or

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whether sentencing courts could vary simply on the ground that the court

believed, as a policy matter, that the 100:1 ratio creates unwarranted disparities

among defendants. In Spears v. United States, 129 S. Ct. 840, 843 (2009), the

Supreme Court clarified “the point of Kimbrough.” Id. at 843. The Court

explained that Kimbrough represented “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.” Id. Thus, “district courts are entitled to

reject and vary categorically from the crack-cocaine Guidelines based on a policy

disagreement with those Guidelines.” Spears, 129 S. Ct. at 843-44. District

courts must, however, recognize that they have the authority to vary downward

based on the crack/powder disparity: “The district court must at least recognize

that it has the authority to vary downward based on the disparity [between powder

and crack].” United States v. Anderson, __F.3d ___, 2010 WL 3341228, at *7 (8 th

Cir. 2010) (citing Moore v. United States, 129 S. Ct. 4, 5 (2008) (per curiam)

(reversing decision based on finding that the district court did not recognize

authority to vary downward based on crack/powder disparity in the Guidelines).

Accordingly, with that background in mind, we turn to the district court’s

decision to sentence Mr. Lewis.

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 II. Sentencing of Mr. Lewis:

In preparation for Mr. Lewis’s sentencing, the United States Probation

Office prepared a presentence report (“PSR”), which calculated an advisory

sentencing range under the United States Sentencing Commission, Guidelines

Manual (“USSG”) (2008). After determining that Mr. Lewis’s offenses involved

crack totaling 4.5 kilograms or more, the PSR established a base offense level of

38. See USSG §2D1.1(c)(1). After adjustments, including a two-level

enhancement for possession of a firearm, the total offense level was calculated to

be 37. With a criminal history category of III, Mr. Lewis’s advisory guidelines

sentencing range was 262 to 327 months’ imprisonment.

Mr. Lewis objected to the drug quantity, arguing that the relevant quantity

of crack was between 500 and 1500 grams, which yielded a base offense level of

34. He also objected to the enhancement for possession of a firearm.

Additionally, Mr. Lewis filed a sentencing memorandum, in which he stated that

“defendants convicted of crack cocaine offenses . . . endure[] sentences 100 times

more harsh than their powder cocaine counterparts.” Sent. Mem. at 1-2. He

further argued that, under Kimbrough, a sentencing court “may consider the

disparity in the sentencing guidelines between crack cocaine and powder cocaine

in determining a reasonable sentence.” Sent. Mem. at 3. Mr. Lewis also alleged

that under Spears, a court “has the ability to impose a variant sentence based on

the disparity based on the District Court’s own policy disagreement with the

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guidelines.” Sent. Mem. at 4. He thus concluded that a sentencing court “must

now decide” whether, solely as a matter of policy, it disagrees with the way the

crack offense levels are calculated under the guidelines, and whether, “in all crack

cocaine sentencing cases,” it will eliminate the disparity by applying to crack

cocaine offenses the offense levels that are applicable to powder cocaine offenses.

Id. at 5-6. Mr. Lewis accordingly sought a downward variance from the advisory

guidelines range, which would result in a sentence of 120 months, the statutory

mandatory minimum.

At the sentencing hearing, the parties by agreement asked the court to

sustain Mr. Lewis’s objection to the PSR’s calculation of drug quantity, and

Mr. Lewis withdrew his objection to the firearm possession enhancement. The

district court therefore made findings regarding those two facts and, without

objection from either party, determined the total offense level to be 33. With

Mr. Lewis’s criminal history category of III, this yielded an advisory guidelines

range of 168 to 210 months’ imprisonment.

The district court then invited Mr. Lewis to comment on the sentence to be

imposed. He again argued that a variance was appropriate, making his offense

level the same as if he had been convicted of offenses involving powder cocaine.

The government opposed any variance, and argued for a sentence within the

guidelines range as already calculated, noting that the government had revoked

Mr. Lewis’s pretrial release because of repeated drug usage. The government also

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addressed particular factors in this case, including Mr. Lewis’s possession of a

firearm and his extensive criminal history. The government recognized that there

could be policy disagreements and that the court could, under Spears, impose a

variant sentence based on the sentencing disparity between crack and powder

cocaine. It further noted, however, that the facts of this case did not warrant a

variance.

In imposing sentence, the court recognized Mr. Lewis’s “lengthy criminal

history,” which included “convictions for battery on law enforcement officers and

obstruction.” Tr. of Sentencing Hr’g at 27, R. Vol. 2 at 30. The court also

considered Mr. Lewis to be a “significant distributor of crack” in his community.

Id. at 28, R. Vol. 2 at 31.

The court then refused to grant a downward variance, explaining:

In regards to the variance, the court for the record would state it
understands it has the right to issue a variance, it has the authority to
do so. The court’s considered the statutory factors as well as the law
that’s in effect at this time, and . . . I would find that . . . the law
right now is not that [the crack/cocaine disparity] should be one to
one. Presently, there’s legislation pending in congress that would
make that the case. But [government counsel] was correct, there’s
also legislation pending that would increase the penalties. Until
congress actually acts, the court would consider the law that’s
presently in effect. It’s true that there is some Department of Justice
spokes people, including the attorney general himself, who spoke out
in regards to their position as well as the administration’s position.
That’s something this court’s aware of. But again, in regards to the
weight the court gives that, their arguments, their statements are not
the law at this time. . . . In regards to the variance, well, I don’t
believe that there’s been a sufficient basis shown for this court to
grant a variance as it relates to the guideline range that the court

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 finds was accurately and correctly calculated. The court’s
considered the reasons and the basis offered by defendant in regards
to that, but again, at this time, upon review and consideration, it does
not grant the variance.

Id. at 30-31, R. Vol. 2 at 33-34.

In selecting the particular sentence for Mr. Lewis, the court told Mr. Lewis

that it was concerned with his criminal history and the nature of that history. The

court also noted Mr. Lewis’s continued drug use while on pretrial release. The

court then determined that a tentative sentence of 168 months would de sufficient,

but not greater than necessary, to satisfy the sentencing objectives, and the court

discussed the sentencing factors of 18 U.S.C. § 3553(a). When the court asked

Mr. Lewis if he had any objections to the court’s proposed findings of fact and

tentative sentence, defense counsel responded: “No, Your Honor. Well, we

object based on the argument that I had made previously concerning the propriety

of the variance, I think it would have been appropriate in this case, but we

understand the court’s . . . rationale.” Id. at 36.

The court then sentenced Mr. Lewis to 168 months’ imprisonment on each

of the four counts, to be served concurrently. This appeal followed, in which

Mr. Lewis argues “the District Court failed to properly consider the variance as a

matter of policy which constitutes an abuse of discretion and a procedurally [and

substantively] unreasonable sentence.” Appellant’s Br. at 4.

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 DISCUSSION

We review a criminal defendant’s sentence for reasonableness, deferring to

the district court under the “familiar abuse-of-discretion standard of review.”

Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness review has a

procedural and a substantive component. A court may commit procedural error in

imposing a sentence by “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence.” Id. at 51. In performing substantive

reasonableness review, we consider “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1215 (10 th Cir. 2008). A sentence imposed within the properly calculated

advisory range is entitled to a rebuttable presumption of reasonableness. United

States v. Sanchez-Suarez, 446 F.3d 1109, 1114 (10 th Cir. 2006).

Mr. Lewis alleges that the district court committed both procedural and

substantive error in failing to grant a downward variance as a matter of policy

based on the disparity between crack and powder sentences. As a procedural

matter, Mr. Lewis claims the district court’s procedural error was its failure, in

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calculating his sentence, to decide as a matter of policy, that a downward variance

from the crack guidelines was necessary. 3

I. Procedural reasonableness:

Mr. Lewis argues the district court imposed a procedurally unreasonable

sentence. As indicated above, procedural error occurs when a court “fail[s] to

calculate (or improperly calculat[es]) the Guideline range, treat[s] the Guidelines

as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based

on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51.

Mr. Lewis argues that the district court erred in this case because it failed

to follow a particular sequence in its sentencing. He argues that:

a Court must answer the following questions: first, in the Court’s
judgment based on the evidence regarding disparity, is there an
unwarranted disparity between the crack and powder cocaine
guidelines? Second, . . . what, in the sentencing court’s judgment, is
the correct ratio?
After going through this process, the Court returns to its
traditional analysis of § 3553(a) factors to determine whether, given
the facts and circumstances particular to the individual case in front
of it and in consideration of the overarching goals of sentencing[, the
court reached the appropriate sentence].

3
The government argues we should only review this issue for plain error, as
Mr. Lewis failed to raise this precise argument before the district court. We need
not decide whether the issue was preserved because, whether we apply a “plain
error” standard or simply inquire whether the court erred, the outcome would be
the same.

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Appellant’s Br. at 8. We discern no such rigid procedural or sequential

requirement in Kimbrough or Spears or our own case-law. Nor is a judge

required to state his or her opinion on the ratio, whether requested by counsel or

not. In broader terms, the district court has no obligation to duplicate the efforts

of the Sentencing Commission or Congress and decide what guidelines policy it

would impose if it were the sole decision-maker. Indeed, mandating such a

procedure or requiring from the judge such opinions on disparity or the correct

ratio would be the antithesis of the kind of discretionary sentencing courts have

traditionally enjoyed and may now exercise in sentencing crack cocaine

defendants.

Our court has recognized, consistent with Supreme Court precedent, that

district courts may permissibly depart or vary downward from the crack

guidelines, but they are not required to do so. As the Supreme Court stated in

Spears, district courts “are entitled” to vary from the crack guidelines based on a

policy disagreement with those guidelines. That language does not say that they

must vary. We noted this point in United States v. Caldwell, 585 F.3d 1347, 1355

(10 th Cir. 2009), cert. denied, 2010 WL 2516004 (2010), stating, “[n]othing in

Kimbrough mandates that a district court reduce a defendant’s sentence in order

to eliminate the crack/powder sentencing disparities.” (citing United States v.

Trotter, 518 F.3d 773, 774 (10 th Cir. 2008)); see also United States v. Bowie, ___

F.3d ___, 2010 WL 3325606, at *4 (8 th Cir. 2010) (“While the district court

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would have been within its discretion to consider the crack versus powder cocaine

disparity in sentencing [the defendant], the district court certainly was not

required to vary downward on this basis.”); United States v. Etchin, 614 F.3d

726, 740 (7 th Cir. 2010) (“Kimbrough permits district courts to deviate from the

crack cocaine guidelines but does not require them to do so.”); United States v.

Laurent, 607 F.3d 895, 904 (1 st Cir. 2010) (“Kimbrough took note of the extreme

sentencing disparity then existing under the guidelines and held that a district

court may depart downward based on policy disagreement with the guidelines’

disparity, but the Court did not require a departure or a variance.”) Thus, the

district court did not err in its calculation of Mr. Lewis’s advisory guidelines

sentence when it refused to vary, as a matter of policy, from the crack guidelines.

II. Substantive Reasonableness:

Having concluded that the district court determined a properly calculated

within-guideline sentence, we turn to the substantive reasonableness of that

sentence, bearing in mind that it is entitled to a rebuttable presumption of

reasonableness. “We may not examine the weight a district court assigns to

various § 3553(a) factors, and its ultimate assessment of the balance between

them, as a legal conclusion to be reviewed de novo. Instead, we must ‘give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the [sentence imposed].” United States v. Smart, 518 F.3d 800, 807-08

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(10 th Cir. 2008) (quoting Gall, 552 U.S. at 51). To determine the substantive

reasonableness of a sentence, we look at the totality of the circumstances. United

States v. Munoz-Nava, 524 F.3d 1137, 1146 (10 th Cir. 2008).

Mr. Lewis argues the sentence was substantively unreasonable because it

was longer than necessary to achieve the goals of 18 U.S.C. § 3553(a), and the

§ 3553(a) factors, particularly § 3553(a)(6), were not properly considered.

Section 3553(a)(6) states that the court, in determining the particular sentence to

be imposed, must 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). To the contrary, our review of the record

reveals that the district court did review the § 3553(a) factors, and concluded that

a variance was inappropriate in this particular case. The court noted Mr. Lewis’s

lengthy criminal history, including some crimes of violence, his possession of a

weapon, and his apparent disregard for the law, as demonstrated by the fact that

he used drugs several times while on pretrial release.

To the extent Mr. Lewis argues that the district court’s failure to vary based

upon the crack/powder disparity constitutes substantive unreasonableness, we

have already explained that the failure to vary for that purpose is not, by itself, a

demonstration of unreasonableness or error by the district court. Similarly, it is

not a ground for arguing that the sentence does not avoid disparities between

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defendants with similar records and who have committed similar offenses. There

is no mandate that we must treat crack and powder cocaine defendants equally.

In short, we conclude that the sentence imposed was substantively

reasonable, given the particular circumstances of Mr. Lewis’s case.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed in this case.

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