United States Court of Appeals
For the First Circuit
No. 07-1790
UNITED STATES,
Appellee,
v.
ANTRON RUSSELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Besosa,* District Judge.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on brief, for
appellee.
James M. Fox for appellant.
August 6, 2008
*
Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. This case crystalizes the
difficulties confronted by defendants - and district court judges -
as they navigate the turbulent waters of Booker and its aftermath.
See United States v. Booker, 543 U.S. 220, 245 (2005). The
defendant, Antron Russell, has already been sentenced three times
following his guilty plea on a charge of distributing crack
cocaine. Prior to the Supreme Court's decision in Booker, Russell
was sentenced to 235 months of imprisonment, the bottom of the
applicable guideline range. After we remanded for resentencing in
light of Booker, he was sentenced to 151 months, a downward
variance based upon a 20:1 ratio that the district court
substituted for the 100:1 ratio under the then-applicable guideline
regime for offenses involving crack as opposed to powder cocaine.
We subsequently rejected the calculation of variances based upon
"the categorical substitution of a 20:1 crack-to-powder ratio for
the 100:1 ratio embedded in the sentencing guidelines" in United
States v. Pho, 433 F.3d 53, 64 (1st Cir. 2006). Accordingly,
Russell's sentence was vacated. Upon remand, he was sentenced to
180 months.
Russell now appeals that sentence, contending that it is
not reasonable. While his appeal was pending before us, the
Supreme Court decided Kimbrough v. United States, 128 S. Ct. 558
(2007), holding that "it would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant
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that the crack/powder disparity yields a sentence 'greater than
necessary' to achieve § 3553(a)'s purposes, even in a mine-run
case." Id. at 575. Russell seeks to parlay Kimbrough into a
fourth sentencing. Because we conclude that the district court
anticipated the holding in Kimbrough, considered the crack/powder
disparity as part of its individualized § 3553(a) analysis at the
most recent sentencing, and imposed a reasonable sentence, we
affirm.
I.
Russell was charged with possession with intent to
distribute cocaine base in excess of fifty grams, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A).1 He entered a guilty plea
pursuant to a plea agreement, stipulating that the quantity of
cocaine base involved in the offense and related conduct totaled
233.74 grams. In exchange, the government agreed to recommend the
lowest prison term within the applicable guideline range, advocate
for either a two- or three-level decrease for acceptance of
responsibility, and refrain from filing for a sentence enhancement
under 21 U.S.C. § 851 and seeking an official victim enhancement
under § 3A1.2 of the sentencing guidelines.
At the plea colloquy, the government reviewed the factual
basis for the plea. On March 8, 2003, local police learned that a
1
At the plea colloquy, the government characterized the drugs
as "cocaine base or crack cocaine" and used these two terms
interchangeably.
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man fitting Russell's description was planning to sell crack at a
McDonald's restaurant in Cranston, Rhode Island. At the scheduled
time, Russell arrived at the McDonald's parking lot in a car driven
by a woman. Police officers approached both sides of the car and
removed the driver. As this was happening, Russell reached over
from the passenger seat and drove the car forward and backward in
an attempt to escape. Three officers were struck by the car, and
the police ultimately opened fire on the car to stop it. Russell
was carrying 141.24 grams of crack cocaine in his pocket. At the
colloquy, Russell also admitted to selling additional quantities of
crack cocaine, totaling 92.5 grams, to undercover officers on three
prior occasions in late 2002 and early 2003.
At the first sentencing hearing, held on August 27, 2004,
the district court calculated Russell's applicable guideline
sentencing range.2 Based on the stipulated drug quantities,
Russell's base offense level was set at 34. The court found that
a three-level reduction for timely acceptance of responsibility and
a two-level victim-related enhancement for reckless endangerment,
pursuant to § 3C1.2, were appropriate, yielding a total offense
level of 33. Russell's 13 criminal history points placed him in
Criminal History Category ("CHC") VI, producing a guideline
sentencing range of 235 to 293 months.
2
These guideline calculations have remained consistent
throughout the three sentencing hearings in this case.
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Russell objected to the two-level enhancement for
reckless endangerment on the ground that, in light of Blakely v.
Washington, 542 U.S. 296 (2004), the government had not met its
burden of proving the facts predicate to the two-level enhancement
beyond a reasonable doubt. Id. at 303. The court rejected this
view, stating that there was no Blakely issue because "in the plea
colloquy the Government outlined all of the facts that are alleged
to support this enhancement" and Russell had agreed to that
outline. The court imposed a 235-month sentence, the lowest
sentence available within the guideline range.3
Russell appealed his first sentence based on the Blakely
issue. However, while the appeal was pending, the Supreme Court
decided Booker and the government conceded that a remand was
required for resentencing under an advisory guideline regime. We
accepted that concession and remanded.
In his written submissions and at the second sentencing
hearing, held on October 28, 2005, Russell asked the court to
impose a 120-month sentence – the applicable mandatory minimum.
Russell asserted that a 120-month sentence would better serve the
interest of rehabilitation than the much longer guideline sentence.
He also claimed that his criminal history score was overstated and
3
The court also sentenced Russell to five years of supervised
release, with special conditions requiring that he seek full-time
employment and participate in a substance abuse program. These
conditions remained consistent through each of the three
sentencings and Russell has not challenged them here.
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argued that the 100:1 ratio for crack versus powder cocaine
embedded within the sentencing guidelines was unjust. The
government countered by highlighting Russell's long list of adult
arrests and convictions and noting that the three short prison
sentences he had served previously had not deterred his criminal
conduct. The government also contended that "it should be left to
Congress, not the Courts, to modify or even abrogate in its
entirety the sentencing distinctions between crack cocaine and
powder cocaine," and noted that if different district courts used
different ratios to calculate post-Booker sentences for crack
cocaine, substantial sentencing disparities would arise. The
government advocated for the reimposition of a 235-month sentence.
The district court stated its categorical disagreement
with the 100:1 ratio in the sentencing guidelines. The court
stated that a 20:1 ratio, which would have produced a 151- to 188-
month guideline range in Russell's case, should be used to guide
the application of the advisory guidelines. The court then
considered the § 3553 factors and imposed a sentence of 151 months.
Russell appealed this sentence, arguing that it was
unreasonable even though it was substantially below the applicable
guideline sentencing range. The government cross-appealed, arguing
that the district court's categorical rejection of the 100:1 ratio
violated our holding in United States v. Pho, 433 F.3d 53 (1st Cir.
2006) – a case decided about two months after Russell's second
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sentence was imposed. We remanded for resentencing in light of Pho
without addressing the reasonableness of the sentence.
Russell filed a motion to continue his third sentencing
pending the Supreme Court's decision in United States v. Claiborne,
127 S. Ct. 551 (2006),4 and the final approval of amendments
proposed by the Sentencing Commission to the guidelines applicable
to crack cocaine offenses.5 The court denied the continuance, and
then explained at the third sentencing hearing on May 10, 2007,
that it had concluded that a continuance was unnecessary because it
has substantial discretion to vary from the guideline sentence,
notwithstanding our rejection of categorical ratio substitutions in
Pho. The court also concluded that it could take into account the
proposed crack cocaine guideline amendments in considering the
overall reasonableness of Russell's sentence. However, the court
4
Claiborne was vacated as moot when the defendant died. 127
S. Ct. 2245 (2007) (per curiam). The issues raised in the case
were then decided in Gall v. United States, 128 S. Ct. 586 (2007).
The Court held that appellate courts in reviewing a non-guideline
sentence may "take the degree of variance into account," but the
Court rejected "an appellate rule that requires 'extraordinary'
circumstances to justify a sentence outside the Guidelines." Id.
at 595.
5
The Sentencing Commission's alteration to the guidelines
became effective on November 1, 2007, reducing the base offense
level associated with each quantity of crack by two levels.
Kimbrough, 128 S. Ct. at 569. Accordingly, if the new guidelines
had been in effect when Russell was sentenced, his guideline
sentencing range would have been 188 to 235 months. See U.S.
Sentencing Guidelines Manual § 2D1.1(c) (Drug Quantity Table)
(Supp. 2008); id. ch. 5, pt. A (Sentencing Table)(Offense level 31,
CHC VI). His 180-month sentence thus falls below the revised
guidelines for his offense.
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explained that it had "undervalued" several aggravating factors at
the previous sentencing. The court particularly noted the large
amount of crack cocaine involved and Russell's violent escape
attempt, which had forced officers to fire their weapons in a busy
McDonald's parking lot, where children might have been endangered.
The court imposed a 180-month sentence.
Russell then filed this appeal, claiming that his
sentence was unreasonable. While the appeal was pending, the
Supreme Court decided Kimbrough. Russell argues that the Kimbrough
decision further supports his contention that his 180-month
sentence was unreasonably high. The government counters by
asserting that the district court anticipated the holding in
Kimbrough and properly considered all of the relevant factors in
making the individualized determination called for by § 3553(a).6
We agree.
II.
"We review the substantive reasonableness of a sentence
for abuse of discretion, but we first consider whether the court
6
The government also argues that any procedural error was
harmless beyond a reasonable doubt because it is unlikely that the
district court would impose a lower sentence if the case were
remanded. Because we conclude that there was no error, we need not
address the government's harmless error analysis. Also, the plain
error analysis we applied in our recent decision in United States
v. Matos, 2008 WL 2687385 (1st Cir. July 10, 2008), is
inapplicable. There the Kimbrough issue was not preserved. More
importantly, as we explain, here there was no Kimbrough error at
all by the sentencing judge.
-8-
below committed a 'significant procedural error, such as . . .
treating the Guidelines as mandatory.'" United States v.
DeCologero, 530 F.3d 36, 70 (1st Cir. 2008) (quoting Gall v. United
States, 128 S. Ct. 586, 597 (2007)). Accordingly, we turn first to
Russell's contention that the district court committed a procedural
error by failing to consider the crack/powder cocaine disparity as
explicitly permitted now by Kimbrough.
A. Pho and Kimbrough
In Pho, we held that "the district court erred as a
matter of law when it constructed a new sentencing range based on
the categorical substitution of a 20:1 crack-to-powder ratio for a
100:1 ratio embedded in the sentencing guidelines." 433 F.3d at
64. We explained that "sentencing decisions must be done case by
case and must be grounded in case-specific considerations, not in
general disagreement with broad-based policies enunciated by
Congress or the [Sentencing] Commission." Id. at 64-65. Our
holding was thus limited to a rejection of a categorical, policy-
based ratio substitution. We cautioned that "we [did] not intend
to diminish the discretion that, after Booker, district courts
enjoy in sentencing matters or to suggest that, in a drug-
trafficking case, the nature of the contraband and/or the severity
of a projected guideline sentence may not be taken into account on
a case-by-case basis." Id. at 65.
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In Kimbrough, the Supreme Court reversed a Fourth Circuit
decision that had taken a far more restrictive approach than we had
in Pho. The Fourth Circuit had held that "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.'" Kimbrough, 128 S. Ct. at 565 (quoting United
States v. Kimbrough, 174 Fed. Appx. 798, 799 (4th Cir. 2006) (per
curiam)). The Supreme Court rejected the Fourth Circuit's approach
because it made "the crack/powder disparity effectively mandatory."
Id. at 564. The Court held instead that a sentencing judge "may
determine . . . that, in a particular case, a within-Guidelines
sentence is 'greater than necessary' to serve the objectives of
sentencing," as set forth in 18 U.S.C. § 3553(a), and that "[i]n
making that determination, the judge may consider the disparity
between the Guidelines' treatment of crack and powder cocaine
offenses." Id.
Although the Kimbrough Court listed Pho as one of the
circuit court decisions that had taken the view that a "sentencing
court may not impose a sentence outside the Guidelines range based
on its disagreement with the crack/powder disparity," Kimbrough,
128 S. Ct. at 566 n.4, we respectfully question that assessment.7
7
The Supreme Court vacated our decision in Pho, along with the
decisions of other circuits that the Supreme Court deemed
incompatible with Kimbrough. We obviously accept that decision.
We remanded Pho to the district court for resentencing in light of
the Supreme Court's decision. However, our fidelity to the
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Indeed, there has been widespread misunderstanding of Pho in this
circuit. We rejected in Pho the categorical substitution by the
sentencing judge of a lower ratio – effectively, a constructive
guideline sentencing range – for all crack cocaine offenders.
However, we expressly preserved the discretion of the sentencing
judge to consider the "nature of the contraband and/or the severity
of a projected guideline sentence . . . on a case-by-case basis."
Pho, 433 F.3d at 65. This case-by-case, individualized analysis is
precisely the approach endorsed by the Supreme Court in Kimbrough.
In detailing the method used by the sentencing court in Kimbrough,
the Court approvingly noted that "the [sentencing] court did not
purport to establish a ratio of its own. Rather it appropriately
framed its final determination in line with § 3553(a)'s overarching
instruction to 'impose a sentence sufficient, but not greater than
necessary' to accomplish the sentencing goals advanced in
§ 3553(a)(2)." 128 S. Ct. at 575. Thus, at its core, Pho is
actually consistent with Kimbrough: both decisions emphasize the
importance of individualized, case-by-case sentencing
determinations, rather than a reliance on generalized ratios.
As we recently explained, "the Kimbrough Court's organic
reading of section 3553(a) suggests that a sentencing judge should
engage in a . . . holistic inquiry," by considering "a tapestry of
decisions of the Supreme Court does not preclude us from expressing
reservations about the Supreme Court's characterization of one of
our decisions.
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factors, through which runs the thread of [the] overarching
principle" of parsimony. United States v. Rodríguez, 527 F.3d 221,
228 (1st Cir. 2008). After Kimbrough, it is clear that the undue
harshness that may result from the 100:1 crack/powder ratio is
properly considered as one of those factors woven into the tapestry
as the district court considers what sentence is "sufficient, but
not greater than necessary" in each individual case.
B. Russell's Third Sentencing Hearing
The question, then, is whether the district court avoided
procedural error at Russell's third sentencing hearing by properly
considering all of the relevant factors – including the
crack/powder disparity – in making its § 3553(a) determination that
a 180-month sentence was "sufficient, but not greater than
necessary" in this particular case. Our review of the transcript
reveals no error.
At the hearing, the district court began by addressing
its rationale for denying Russell's motion for a continuance,
explaining that Pho did not substantially constrain its discretion:
So the reason that I really felt that, on that
ground, that I wasn't inclined to grant the
motion is that I feel that we have a
substantial discretion to impose a non-
guideline sentence, and what Pho said really
was that district courts should not get into
the business of defining a, sort of a uniform
or across-the-board policy basis with respect
to those kinds of sentences, but rather should
be doing them on a case-by-case basis, but
sort of left open, I think very clearly left
open [to] the discretion of the district court
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to formulate a sentence that is whatever the
Court feels is a reasonable sentence.
This view of Pho is, as we noted above, consistent with the Supreme
Court's later holding in Kimbrough. Indeed, we think that the
district court here presciently anticipated the guidance that the
Court would provide in Kimbrough. Later in the hearing, the court
stated:
[W]e have been told by the Court of Appeals
that the application of a rigid 20-to-1 ratio
was error and that that's not the way to go
about doing these sentences. And I think I've
said before, and sort of reflecting on this
over the last few years, I think the Court of
Appeals was probably right about that. And as
to the policy part of it, I think that our job
is to look at these cases on a real case-by-
case basis and try to come up with a sentence
that is appropriate.
The court clearly – and correctly – believed that it had
the authority to consider the crack/powder disparity as one factor
in that case-by-case analysis. Referencing the proposed amendments
to the crack sentencing guidelines, the court explained:
The history of these amendments is that
Congress has rejected them, although there's
some reason to believe they would accept this
one. But, again, as I'm looking at it, I'm
inclined to think that you can argue, I
suppose, that this is further evidence that
the guideline range in this case is not
reasonable. And you might have a lot of
arguments that sort of fit into that – a
number of arguments that you would make in
order to say it's not reasonable, including
various statements of the Sentencing
Commission about crack cocaine sentences over
the last few years, and this would just be an
additional item to support that argument.
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From my point of view, I feel that I've
got the discretion to put all of that into the
basket and try to figure out what a reasonable
sentence is under the advisory guideline
system.
So once again, I'm not sure I need to
see that amendment either be adopted or not be
adopted in order to figure out, from my point
of view, what I think a reasonable sentence
is.
The court concluded that a reasonable sentence for Russell was 180
months, 29 months longer than the 151-month sentence that the court
had imposed at the second sentencing but still well below the
bottom of Russell's guideline sentencing range.
Given the court's understanding of the discretion it
retained after Pho in fashioning an individualized sentence,
Russell's contention that the constraints of Pho produced the
longer sentence at his third sentencing is untenable. Rather, the
court explained that it had "undervalued" other factors at
Russell's second sentencing. The court described being "struck" by
three factors in reviewing the case:
One is that I think the quantity of cocaine
here was pretty substantial. And there were
several transactions, not just one. The
amount of money involved was substantial, and
I think these facts pointed to your role as a
dealer as somewhat more substantial than other
defendants that I've seen. . . .
The second thing that struck me is that
the Government did not file an 851 enhancement8
8
If the government had filed an information under 21 U.S.C.
§ 851 stating a prior drug felony conviction, Russell would have
been subject to an increased statutory mandatory minimum sentence
of 20 years. See 21 U.S.C. §§ 841(b)(1)(A), 851(a).
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in this case, which it certainly could
have . . . .
And then the third thing that struck me
was that, in rereading the facts of the case,
was the attempt to escape and the fact that
three officers were hit by the car, the fact
that this all occurred at a McDonald's
restaurant, a busy place. There could have
been children running around. And I think
that's a disturbing fact, even perhaps more
disturbing is the fact that the police
officers had to fire their weapons in response
to the attempt to escape.
These three factors led the court to conclude that "a somewhat
greater sentence than what [it had] previously imposed is
appropriate." Thus, the record of Russell's third sentencing
hearing reveals that the district court considered the
crack/cocaine disparity as well as a host of other individualized
factors in reaching a holistic assessment of the sentence called
for by § 3553. We perceive no procedural error.
C. Substantive Reasonableness
Having satisfied ourselves that the sentence is
procedurally sound, we proceed "to review the substantive
reasonableness of the sentence, taking into account the totality of
the circumstances . . . [and giving] 'due deference to the district
court's decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.'" United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008) (quoting Gall, 128 S. Ct. at 597).
Russell points to two factors that he contends should
have driven his sentence even lower. First, he argues that the
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district court did not adequately consider the crack/powder
disparity in arriving at his sentence. However, we have no reason
to question the adequacy of the size of the downward departure the
district court granted on the basis of the disparity here. The
record of all three sentencing hearings, read together, suggests
that there were no other substantial mitigating factors that could
explain the significant downward variance here. At the second
sentencing hearing, the only factor the court discussed that would
lead to a below-guideline sentence was the crack/powder disparity.
Similarly, at the third sentencing hearing, the only mitigating
factors specifically referenced by the court were the history of
proposed amendments to the crack/powder ratio in the guidelines and
the "yo-yo effect with respect to sentencing" that Russell had had
to endure as a result of the several remands in the case. Thus, it
appears that the crack/powder disparity accounts for the bulk of
the fifty-five-month downward variance in Russell's sentence.
Second, Russell contends that the district court failed
to adequately account for his personal circumstances in the third
sentencing. He describes those personal circumstances as having
"limited education and employment opportunities, marijuana and
alcohol addictions, and a young child." We fail to see how this
vague description places Russell so far from "the mine-run of
criminal defendants," see Martin, 520 F.3d at 95, as to require the
district court to impose a sentence even farther below the
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guideline range than the 180-month sentence it imposed. Russell's
arguments fall far short of undermining the substantive
reasonableness of his sentence.
Affirmed.
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