RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-5286
v.
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Defendant-Appellant. -
ADRIAN CONAN CURB,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 04-00182—Thomas A. Varlan, District Judge.
Argued: October 21, 2010
Decided and Filed: November 18, 2010
Before: MARTIN, COLE, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for
Appellant. Debra A. Breneman, ASSISTANT UNITED STATES ATTORNEY,
Knoxville, Tennessee, for Appellee. ON BRIEF: David E. Mills, THE MILLS LAW
OFFICE LLC, Cleveland, Ohio, for Appellant. Steven H. Cook, ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. This is a sentencing appeal that
reaches us somewhat stale. Defendant-appellant Adrian Conan Curb pleaded guilty on
February 28, 2005 to two crack-cocaine charges. The district court enhanced Curb’s
total offense level for his status as a career offender, the application of which he now
appeals. Additionally, Curb requests resentencing in light of the Supreme Court’s
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recognition of crack-to-powder cocaine sentencing disparities in Kimbrough v. United
States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2009), both of
which were issued after he was sentenced. We REVERSE the judgment and REMAND
for resentencing.
I. BACKGROUND
Curb was taken into custody on March 15, 1997 for possession of cocaine for
resale, a violation of Tennessee state law. Later, on April 7, he was again taken into
custody for aggravated assault, another Tennessee violation. Although he was seventeen
years old at the time of both arrests, Tennessee charged him as an adult, and convicted
him of both crimes in Anderson County Criminal Court in Clinton, Tennessee. He was
sentenced for both convictions on October 20.
On February 28, 2005, Curb pleaded guilty in United States District Court for the
Eastern District of Tennessee to one count of distribution of crack-cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of distribution of five grams or more
of crack-cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He was not sentenced
until nearly two years later on February 16, 2007. The Presentence Investigation Report
used at Curb’s sentencing hearing indicated that the career offender enhancement,
U.S.S.G. § 4B1.1 (2006), should apply to his total offense level. The Probation Office
found that Curb qualified as a career criminal offender because he was at least eighteen
years old when he committed the instant drug-related felonies, and he had been
previously convicted of a drug-related crime and a crime of violence.
Curb objected to the career offender enhancement, arguing that his prior
convictions were “related” pursuant to U.S.S.G. § 4A1.2 cmt. n.3, and, thus, should be
considered a single prior offense. The district court overruled Curb’s objection, found
that his two prior convictions were unrelated, and applied the career offender
enhancement to his total offense level. The court then calculated Curb’s Criminal
History Category and adopted the Report’s advisory Guidelines sentencing range of
twenty-one years and ten months to twenty-seven years and three months imprisonment.
No. 07-5286 United States v. Curb Page 3
The district court found further that Curb’s cooperation with government agents was not
sufficient to qualify him for a substantial assistance departure pursuant to U.S.S.G.
§ 5K1.1, but noted that Curb’s cooperation would be taken into account in the district
court’s review of the history and characteristics of the defendant. After reviewing the
applicable sentencing factors under 18 U.S.C. § 3553(a), the district court sentenced
Curb to twenty-one years and ten months of incarceration to be followed by eight years
of supervised release.
II. DISCUSSION
A. The Career Offender Enhancement
The district court categorized Curb as a career offender pursuant to U.S.S.G.
§ 4B1.1, which imposes higher Guidelines offense levels for certain repeat offenders.
For a defendant to qualify for the enhancement, a court must find:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a). Curb argues that he did not satisfy the third prong of “two prior
felony convictions.” At first blush, Curb’s argument might seem like a fool’s errand.
He has undeniably been convicted for one felony charge of aggravated assault and one
felony charge of cocaine possession. These would seem to sufficiently satisfy the third
prong. However, additional sections of the Guidelines inform us that whether Curb has
“as least two prior felony convictions” actually depends on whether he has previously
received separate sentences. The Guidelines do not make this conclusion readily
apparent, nor does the facially unambiguous section 4B1.1(a) direct us to look at other
sections for a deeper meaning. Nevertheless, whether Curb satisfied the third prong
depends on whether he had multiple, prior, separate sentences. We will attempt to
explain this rule.
No. 07-5286 United States v. Curb Page 4
For a defendant to qualify for the third prong of section 4B1.1(a), at least two of
the sentences for the defendant’s prior convictions must be “counted separately”
pursuant to section 4A1.1(a), (b), or (c). U.S.S.G. § 4B1.2(c). These sections do not
reference convictions at all. Instead they reference “prior sentence,” which is defined
by section 4A1.2(a). Furthermore, hidden among the comment notes of section 4B1.2,
the Guidelines expressly make the definitions listed in section 4A1.2 applicable to
section 4B1.1 for purposes of determining whether prior convictions are counted
separately. U.S.S.G. § 4B1.2 cmt. n.3. Therefore, to determine whether Curb had
qualifying prior convictions, we look to the definition of “prior sentence” in section
4A1.2(a).
Although we have made it this far through the Guidelines labyrinth, we are now
faced with another quandary. At the time Curb was sentenced, an earlier definition of
“prior sentence” from section 4A1.2(a)(1) was in effect that has since been amended by
Amendment 709. U.S.S.G. app. C, amend. 709 (2007). Curb argues that he does not
have multiple prior sentences based on the language of Amendment 709. For his
argument to succeed, we would have to find that Amendment 709 is clarifying and, thus,
retroactive for his sentence. If a Guidelines amendment is clarifying, it may be applied
retroactively “to discern the Sentencing Commission’s intent regarding the application
of a pre-amendment Guideline.” United States v. Geerken, 506 F.3d 461, 465 (6th Cir.
2007) (citing United States v. DeCarlo, 434 F.3d 447, 458-459 (6th Cir. 2006)). Several
of our sister circuits have decided this issue and held that Amendment 709 is substantive
rather than clarifying. See United States v. Alexander, 553 F.3d 591, 592-93 (7th Cir.
2009); United States v. Marler, 527 F.3d 847, 877 n.1 (9th Cir. 2008); United States v.
Wood, 526 F.3d 82, 87-88 (3d Cir. 2008); United States v. Godin, 522 F.3d 133, 136 (1st
Cir. 2008) (per curiam). Nevertheless, we need not decide whether Amendment 709 is
clarifying or substantive if Curb would still qualify as a career offender even if
Amendment 709 applied to his sentence.
Under the current language of section 4A1.2(a)(1), as revised by Amendment
709, “prior sentence” is defined as “any sentence previously imposed upon adjudication
No. 07-5286 United States v. Curb Page 5
of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of
the instant offense.” The Guideline elaborates further:
If the defendant has multiple prior sentences, determine whether
those sentences are counted separately or as a single sentence. Prior
sentences always are counted separately if the sentences were imposed
for offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing the second
offense). If there is no intervening arrest, prior sentences are counted
separately unless (A) the sentences resulted from offenses contained in
the same charging instrument; or (B) the sentences were imposed on the
same day. Count any prior sentence covered by (A) or (B) as a single
sentence.
U.S.S.G. § 4A1.2(a)(2) (emphasis added). The first question necessary to conclude
whether Curb had multiple prior sentences, therefore, is whether he had an intervening
arrest separating the offenses. If he did, our analysis ends here.
The Guidelines do not provide a definition for “arrest.” Curb argues that we
should rely upon Tennessee’s definition of arrest, which precludes juveniles from being
“arrested.” Tenn. Code Ann. § 37-1-113 (West 2010) (“A child may be taken into
custody . . . [p]ursuant to the laws of arrest,” but “[t]he taking of a child into custody is
not an arrest, except for the purpose of determining its validity under the Constitution
of Tennessee or the Constitution of the United States.”). However, unless Congress
plainly instructs us otherwise, we will not look to state law in interpreting the federal
Guidelines. United States v. Jackson, 401 F.3d 747, 749 (6th Cir. 2005).
Curb also argues that changes to federal law require us to find that he could not
have been arrested as a juvenile. He points to the 1974 revisions to The Federal Youth
Corrections Act, §§ 18 U.S.C. 5033, 5035, that replaced the phrase “[w]henever a
juvenile is arrested” with “[w]henever a juvenile is taken into custody” as proof that
federal law follows the same thesis as Tennessee law. Nevertheless, we have
encountered the specific language of these sections before, and treated custody of a
juvenile as an arrest. United States v. Doe, 226 F.3d 672, 679 (6th Cir. 2000)
(addressing “federal custody, i.e., a federal arrest on a federal charge” (emphasis
removed)). Therefore, for purposes of interpreting the Guidelines, Curb was arrested
No. 07-5286 United States v. Curb Page 6
when he was taken into custody as a minor. Because he was arrested once on March 15,
1997 and again on April 7, 1997, the first arrest was intervening. We need not reach the
remaining questions of section 4A1.2(a)(2).
Even pursuant to the language of Amendment 709, Curb would still qualify as
a career offender under section 4B1.1. We, therefore, do not reach the question of
whether it applied to him retroactively. Additionally, Curb does not argue that the
district court erred in its interpretation of the previous language of section 4A1.2.
Accordingly, his appeal regarding his career offender status fails.
B. Remand in Light of Kimbrough and Spears
Curb also requests remand in light of Kimbrough and Spears because the career
offender provisions incorporate, in his case, the infamous 100:1 crack-to-powder cocaine
ratio. Kimbrough, 552 U.S at 91, held that a district court “may consider the disparity
between the Guidelines’ treatment of crack and powder cocaine offenses,” and conclude
that for a crack-cocaine offense, “a within-Guidelines sentence is greater than necessary
to serve the objectives of sentencing.” Subsequently, Spears, 129 S. Ct. at 843-44, held
that “district courts are entitled to reject and vary categorically from the crack-cocaine
Guidelines,” even in a run-of-the-mill case. The government objects to remand because
Curb has failed to show that the district court made any procedural or substantive error
in imposing the sentence.
Curb’s contention that the 100:1 crack-to-powder ratio is entangled in the career
offender guideline, such that categorical disagreement with the ratio may also support
a district court’s rejection of the career offender enhancement, has found support in this
Court. See United States v. Michael, 576 F.3d 323, 326-28 (6th Cir. 2009) (holding that
“a district court may disagree with the 100:1 ratio as implicitly incorporated” in the
career offender guideline). On what grounds this Court may remand for resentencing
in light of Kimbrough and Spears, however, is a less-settled question.
In United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), the district court
sentenced the defendant-appellant based on an amended version of the Guidelines that
No. 07-5286 United States v. Curb Page 7
adjusted downward the prior 100:1 crack-to-powder cocaine ratio. Compare U.S.S.G.
§ 2D1.1(c)(6) (2006) (applying base offense level of twenty-eight to twenty grams of
cocaine base and two kilograms of cocaine) with U.S.S.G. § 2D1.1(c)(6) (2007)
(applying base offense level of twenty-eight to thirty-five grams of cocaine base and two
kilograms of cocaine). Even so, this Court in Johnson, 553 F.3d at 996, remanded for
resentencing, holding that “Spears applies with equal force . . . under the new crack-
cocaine Guidelines.” Johnson reasoned that remand was appropriate because this Court
had “no way of ascertaining [from the record below] whether the district judge would
have imposed the same sentence if he had known of his discretion to vary categorically
from the crack-cocaine Guidelines based on a policy disagreement.” Id.
Subsequently, United States v. Simmons, 587 F.3d 348, 363-64 (6th Cir. 2009),
held that an “express statement” from the district court about the policy behind the ratio
is required to justify remand. “[W]hen a district court observes that the Guidelines are
advisory and provides no indication that policy disagreements are not a proper basis to
vary, then a sentence within the Guidelines range remains presumptively reasonable on
appeal.” Id. at 364. While this rule overlaps with the rule in Johnson, it promulgates a
test that elides the Johnson court’s focus on its “inability to ascertain[],” Johnson, 553
F.3d at 996 n.1, what the district judge would have done in light of the authority
articulated in Kimbrough and Spears. Conflicts between published decisions must be
resolved in favor of the earlier-decided case. See Sowards v. Loudon Cnty., Tenn., 203
F.3d 426, 431 n.1 (6th Cir. 2000). Johnson, then, controls the standard for remand under
Kimbrough and Spears; Simmons must be harmonized with this Court’s prior ruling.
As in Johnson, we cannot know from the sentencing transcript whether the
district court would have imposed the same sentence on Curb had it been aware of its
authority to vary categorically from the career offender Guidelines based on a policy
disagreement with the 100:1 crack-to-powder ratio. The district court sentencing
transcript does not speak at all to that question. It shows only that the district court
understood that the Guidelines were advisory. Therefore, Johnson compels
resentencing.
No. 07-5286 United States v. Curb Page 8
Moreover, a close look at the facts in Simmons reveals a key difference in this
case. The defendant in Simmons directly raised the issue of the 100:1 ratio at sentencing.
Curb did not. The sentencings in both cases occurred before Kimbrough and Spears
brought the 100:1 ratio clearly to the forefront of the minds of sentencing courts.
However, in Simmons, the issue of the ratio was undeniably brought before the
sentencing court’s attention, and yet it chose to impose a within-Guidelines sentence
without making an “express statement.” The “express statement” rule from Simmons is
predicated upon the disparity issue being brought before the sentencing court in some
fashion so that it had the opportunity to consider it. Because it is not clear in this case
that the sentencing court ever had such an opportunity, Simmons does not apply.
Therefore, Johnson is the controlling authority, and resentencing is warranted.
III. CONCLUSION
This case has languished much too long. Nevertheless, we REVERSE the
judgment and REMAND this case to the district court for resentencing in light of the
Supreme Court’s recent decisions in Kimbrough and Spears.