In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1272
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HARRON L. N EWBERN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:09-cr-20036-MPM-DGB-1—Michael P. McCuskey, Chief Judge.
A RGUED A UGUST 3, 2010—D ECIDED JANUARY 24, 2011
Before B AUER, M ANION and SYKES, Circuit Judges.
P ER C URIAM. While executing a search warrant, police
found 18.2 grams of marijuana and 4.1 grams of crack
in plastic baggies in Tharron Newbern’s pockets.
Newbern later pleaded guilty to one count of possessing
crack cocaine with the intent to distribute. See 21 U.S.C.
§ 841(a)(1). Because he had four prior felony convictions
for drug offenses, Newbern qualified for the career-of-
fender sentencing enhancement. See U.S.S.G. § 4B1.1. The
2 No. 10-1272
district court sentenced Newbern to 188 months’ impris-
onment—at the bottom of his Guidelines range. On
appeal, Newbern reads United States v. Welton, 583 F.3d
494 (7th Cir. 2009), which controlled at the time of his
sentencing, as having prevented the district court
from deviating from the career-offender Guidelines
range based on any policy disagreement it may have
had with § 4B1.1. But, Newbern explains, shortly after
his sentencing, we overruled Welton in United States v.
Corner, 598 F.3d 411 (7th Cir. 2010). Based on this change
in circuit precedent, Newbern contends that a limited
remand is necessary so that the district court can say
whether it would have given him the same sentence if
it had been free to reject § 4B1.1 on any policy ground.
But Newbern misreads these two cases, and the narrow
policy argument foreclosed by Welton would not have
helped Newbern at sentencing. Thus, we affirm the
district court’s judgment.
I. BACKGROUND
After Newbern pleaded guilty, a probation officer
prepared a presentence report, first calculating that
under § 2D1.1 of the Sentencing Guidelines, Newbern’s
total offense level would be 22. With a three-level reduc-
tion for acceptance of responsibility, see U.S.S.G. § 3E1.1,
Newbern’s total would drop down to 19 and, when
combined with a criminal history category of V, produce
a Guidelines range of 57 to 71 months. But, because of
Newbern’s prior felony drug convictions, the probation
officer determined that Newbern qualified as a career-
No. 10-1272 3
offender under § 4B1.1. Furthermore, even with the
acceptance-of-responsibility reduction, Newbern’s
offense level jumped up to 31, because the statutory
maximum under 21 U.S.C. § 841(b)(1)(C) is 30 years for a
defendant with a prior felony conviction and whose
offense involved less than 5 grams of crack. (When the
offense involves less than 5 grams of cocaine—whether
the cocaine is crack or powder—the statutory maxi-
mum and the offense level under § 4B1.1 would be the
same for defendants with a prior felony. See 21 U.S.C.
§ 841(b)(1)(C); U.S.S.G. § 4B1.1.) As a career offender,
Newbern’s criminal history category also increased
from V to VI, yielding an adjusted Guidelines range of
188 to 235 months. Neither Newbern nor the govern-
ment objected to the probation officer’s calculations,
which the district court accepted.
At the sentencing hearing Newbern pressed the
district court to give him a below-Guidelines sentence
of 120 months, noting that his personal background,
education, and work history set him apart from other
defendants. Regarding his past drug convictions,
Newbern emphasized that all of the charges involved
relatively small amounts of drugs and that he had
never been charged with a violent crime. Even a sen-
tence of 120 months, Newbern pointed out, would still
be five years longer than any of his previous sen-
tences. Although Newbern did not challenge his status
as a career offender, he argued that he was not a
typical career offender and that it was not “worthwhile”
to put a man like him in prison for 15 years when
his personal characteristics showed great promise for
4 No. 10-1272
rehabilitation. He did not, however, raise any policy
arguments or ask the court to disagree with § 4B1.1 cate-
gorically.
Before announcing sentence, the district court dis-
cussed each of the sentencing factors under 18 U.S.C.
§ 3553(a). The court noted that Newbern’s conviction
involved a “chicken feed” amount of crack that was
“almost a nonexistent crime for [that] court.” If this
had been Newbern’s first offense, the court continued,
then it would have been inclined to give him probation.
But, the court explained, Newbern earned his status as a
career offender because he “can’t stay away from small-
time drug dealing,” as evidenced by his troubling “re-
volving door” pattern of drug offenses over 15 years,
and, the court added, in the federal system “it all
catches up with you.” The court denied Newbern’s
request for a below-Guidelines sentence, reasoning
that any sentence less than the “advisory Guidelines mini-
mum of 188 months would ignore the pattern, would
ignore the convictions, would ignore the revolving door
and the fact that [Newbern had] been to [prison] several
times.” Explaining that a sentence of 188 months was
“appropriate and reasonable” and reflected the serious-
ness of the crime, the court concluded: “You’re a career
offender. It’s not a four gram case. It’s a career offender
case of a repeat offender who’s been in prison several
times.” This appeal followed.
II. ANALYSIS
Newbern reads our holding in Welton broadly and
argues that at the time of sentencing Welton prevented
No. 10-1272 5
the district court from declining to follow the career-
offender Guidelines range for any “policy” reason. Be-
cause Corner overruled Welton two months after he was
sentenced, Newbern contends, a limited remand is war-
ranted to allow the district court to consider whether
it would have given him the same sentence if it had
known that “it had the discretion to disagree, reject, or
vary categorically from the career offender Guidelines
itself, and in this case in particular.” The government
counters that Welton’s holding was limited. According
to the government, although Kimbrough v. United States,
552 U.S. 85 (2007), allows courts to disagree with § 2D1.1
of the Guidelines based on the crack/powder disparity,
Welton held that courts could not use that disparity
to deviate from the career-offender Guidelines under
§ 4B1.1. But because Newbern was charged with less
than 5 grams of crack, the government explains, the
disparity did not affect his sentence. His offense level
under § 4B1.1 was based on the applicable statutory
maximum, which for Newbern’s small quantity was
the same regardless of whether his cocaine was crack
or powder. Thus, the government concludes, the dis-
parity objection foreclosed in Welton and later allowed
in Corner does not apply to Newbern’s case.
Newbern did not ask the district court to reject cate-
gorically the career-offender Guidelines based on this or
any other policy objection. Thus we review his sentence
only for plain error. United States v. Taylor, 520 F.3d 746,
747 (7th Cir. 2008); United States v. Paladino, 401 F.3d
471, 481 (7th Cir. 2005). As such, Newbern must show
that the previous unavailability of a policy-based reason
6 No. 10-1272
for disagreeing with the career-offender Guidelines
affected his substantial rights, and, if left uncorrected,
would seriously affect the “fairness, integrity, or public
reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993); Paladino, 401 F.3d at 481.
Newbern cannot do so because Welton did not affect
the length of his sentence. Welton did not prevent dis-
trict courts from considering all policy disagreements
with § 4B1.1 (as Newbern argues); it just foreclosed a
policy objection based on the crack/powder disparity.
As Welton put it: The 100:1 crack/powder “disparity em-
bedded in § 4B1.1” is not part of “the sentencing discre-
tion provided by Kimbrough.” 583 F.3d at 497. Welton
reasoned that the career-offender Guidelines pegs a de-
fendant’s sentence to the mandatory statutory maxi-
mums established by Congress, and thus disagreeing
with the disparity when it affects a § 4B1.1 case is equiva-
lent to disregarding those Congressional mandates. Id.
at 496-97. Welton therefore concluded that “a district
court may not rely on the 100:1 crack/powder disparity
embedded in § 4B1.1 as a basis for imposing a non-Guide-
line sentence.” Id. at 499. In all other respects, Welton
added, district courts are free to treat § 4B1.1 as advisory
under Kimbrough, so long as courts base their sentences
on the factors enumerated in § 3553(a). Id.
Kimbrough opened the door for policy disagreements
with the Guidelines and Welton closed it only to
preclude arguments based on crack/powder disparities
when those challenges stemmed from the statutory maxi-
mums embedded in § 4B1.1. Other policy concerns that
No. 10-1272 7
could be raised to challenge § 4B1.1 (such as an argu-
ment that its definition of a career offender is over-
broad or that recidivists should not be punished more
harshly) would not pose a challenge to the embedded
ratio disparity or the statutory maximums and, thus,
would have been available to Newbern at sentencing.
By overruling Welton’s narrow holding, Corner now
allows sentencing judges to vary from the career-offender
Guidelines based on a policy disagreement with the
crack/powder disparity when it affects a sentence. But
here, even if the district judge in this case would have
disagreed with that disparity when it affected a career-
offender Guidelines range, Newbern cannot establish
plain error because, as Newbern does not dispute,
the disparity had no effect on his Guidelines range. Ac-
cordingly, a limited remand would not help Newbern.
III. CONCLUSION
Therefore, the judgment of the district court is A FFIRMED.
1-24-11