05-5879-cr
United States v. Keith Jones
UNITED STATES COURT OF APPEALS
F OR THE S ECOND C IRCUIT
August Term, 2006
(Argued: April 10, 2007 Decided: June 24, 2008)
Docket No. 05-5879-cr
U NITED S TATES OF A MERICA,
Appellee,
—v.—
K EITH J ONES,
Defendant-Appellant.
Before:
L EVAL, C ABRANES, and R AGGI, Circuit Judges.
Appeal from a judgment of the United States District Court for the Western District
of New York (David G. Larimer, Judge), sentencing defendant Keith Jones to 121 months’
imprisonment for unlawful possession of cocaine base in violation of 21 U.S.C. § 844(a).
Jones challenges (1) the sufficiency of the evidence supporting his conviction, and (2) the
reasonableness of his sentence. On the second point, he submits that the district court (a)
miscalculated his Sentencing Guidelines range by relying on seized currency to determine
1
the drug quantity relevant to his possession offense; and (b) gave controlling effect to the
Guidelines 100:1 ratio for assessing the relative seriousness of offenses involving powder
cocaine as compared to crack cocaine, resulting in a sentence in his case that is greater than
necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a).
A FFIRMED IN PART AND V ACATED AND R EMANDED IN PART.
R OBERT G. S MITH, Assistant Federal Defender (Jay S. Ovsiovitch, of counsel,
on the brief), Rochester, New York, for Defendant-Appellant.
T IFFANY L EE, Assistant United States Attorney (James P. Kennedy, Assistant
United States Attorney, on the brief), for Terrance P. Flynn, United
States Attorney for the Western District of New York, Rochester, New
York, for Appellee.
R EENA R AGGI, Circuit Judge:
Defendant Keith Jones appeals from a judgment of conviction entered on October 27,
2005, in the United States District Court for the Western District of New York (David G.
Larimer, Judge), after a jury trial at which Jones was found guilty of unlawfully possessing
more than five grams of a substance containing cocaine base (commonly known as “crack”
cocaine) in violation of 21 U.S.C. § 844(a). Presently serving the 121-month prison term
imposed in this case, Jones challenges his conviction on two grounds. First, he contends that
the trial evidence was insufficient as a matter of law to establish his possession of crack
cocaine. Second, he asserts that his sentence is unreasonable because the district court (a)
2
miscalculated his Sentencing Guidelines range by including in his relevant drug quantity an
amount of crack cocaine derived from the currency seized at the time of Jones’s arrest, which
was found to represent the proceeds of a crack sale; and (b) gave controlling effect to the
Guidelines 100:1 ratio for assessing the relative seriousness of crimes involving powder
cocaine as compared to crack cocaine, resulting in a prison term in his case that is greater
than necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a). For the reasons
stated in this opinion, we reject Jones’s challenge to the sufficiency of the evidence and
affirm the district court judgment insofar as it convicts him for cocaine possession. We also
reject Jones’s challenge to the district court’s finding of drug quantity. Nevertheless, because
the sentencing record is ambiguous as to whether the district court’s understanding of its
discretion to impose a non-Guidelines sentence was as now clarified in Kimbrough v. United
States, 128 S. Ct. 558 (2007) and Gall v. United States, 128 S. Ct. 586 (2007), we vacate the
sentence component of the judgment and remand the case to the district court for the limited
purpose of resentencing consistent with Kimbrough and Gall.
I. Factual Background
Because Jones raises a sufficiency challenge to his conviction, we briefly summarize
the record evidence in the light most favorable to the government. See, e.g., Jackson v.
Virginia, 443 U.S. 307, 319 (1979); accord United States v. Klein, 476 F.3d 111, 112 (2d Cir.
3
2007).
A. The Search Leading to Jones’s Arrest
On March 13, 2004, Rochester police executed a search warrant at 991 North Street,
Apartment 2, authorizing the seizure of drugs and drug paraphernalia.1 Upon entering the
subject apartment, the police encountered Keith Jones standing in the hallway. In plain view
in the living room they saw various of Jones’s personal effects including a copy of his birth
certificate and two photographs, one of Jones with friends, and one of Jones’s daughter. No
other persons were present in the apartment, nor did it appear that anyone resided there. Only
the living room had any furniture; the two bedrooms were empty, and the kitchen contained
no food.
While the officers found no signs of residency, they did find significant evidence
indicating that the subject apartment was a “gatehouse,” i.e., a location “used solely for the
purpose of distribution of a controlled substance,” in this case, crack cocaine. Trial Tr. at 16.
Throughout the kitchen, which smelled of burnt acetone, officers found white residue caked
onto counter tops, cooking pots, and utensils. They collected 22 grams of this residue, which
laboratory analysis confirmed to be crack cocaine. In the kitchen, officers also found four
discarded bundles of cellophane wrapping and duct tape, materials often used to package
1
On appeal, Jones does not contest the validity of this warrant, which was obtained
after a confidential informant purchased gram quantities of crack cocaine at the subject
premises on February 17 and 28, 2004.
4
kilogram quantities of powder cocaine, which can be “cooked” into crack. They further
seized two boxes of baking soda, which is frequently cooked with powder cocaine to create
crack. From a cabinet in the hallway where Jones had been standing, the officers seized eight
rounds of ammunition, as well as a digital scale, a razor blade, and plastic sandwich bags;
the last three items are all commonly used in the packaging and distribution of drugs.
Finally, the officers recovered $883 in cash, of which $783 was found beneath a pillow on
a living room couch and $100 was found in plain view on the bathroom floor. When
confronted with this evidence of apparently substantial narcotics activity, Jones stated: “I
don’t know nothing about that, I’m just selling a little – a little bit. I don’t know nothing
about no kilo wrappers.” Id. at 85.
B. Trial
As a result of the seizures made in the subject apartment, Jones was charged in the
Western District of New York with unlawful possession of ammunition, see 18 U.S.C.
§§ 922(g)(1), 924(a)(2); possession of more than five grams of crack with intent to distribute,
see 21 U.S.C. § 841(a)(1) & (b)(1)(B); and unlawful simple possession of the same quantity
of crack, see id. § 844(a). After a three day trial, the jury found Jones guilty of simple crack
possession and acquitted him on the other two charges.
C. Sentencing
Because the jury specifically found Jones to have possessed more than five grams of
crack, he was subject to an enhanced statutory sentence of “not less than 5 years and not
5
more than 20 years.” Id.; see also, e.g., United States v. Gonzalez, 420 F.3d 111, 123-25 (2d
Cir. 2005) (noting our earlier holding that drug quantity is not a “mere sentencing factor[]”
but rather an “element[] of aggravated offenses,” which must be decided by a jury). Insofar
as the Sentencing Guidelines were relevant to the district court’s determination of where
within this statutory range to sentence Jones, see 18 U.S.C. § 3553(a)(4) & (5), the Probation
Department, in its Pre-Sentence Report, recommended that the district court find Jones to
have possessed approximately 55 grams of crack, a total derived from (1) the 22 grams of
crack residue recovered from the kitchen of the subject apartment; (2) the 7 grams of crack
purchased by a police informant on February 17 and 28, 2004; and (3) the 25.75 grams of
crack that Jones likely sold to realize the $883 seized from the subject apartment.2
The district court declined to find Jones to have possessed the 7 grams of crack
purchased by the confidential informant, but it otherwise followed the Probation
Department’s recommendations for calculating relevant drug quantity. Based on Jones’s
possession of approximately 47 grams of crack, the district court identified his Guidelines
offense level as 30, which, with a criminal history category of III, yielded a sentencing range
2
The Probation Department recommended using the price paid for crack by the
confidential informant to determine the drug quantity that Jones likely sold for $883. The
Department did not recommend that the court attribute any drug possession to Jones from the
seized wrapping materials, which appeared consistent with four kilograms of powder
cocaine.
6
of 121 to 151 months’ incarceration.3
At his sentencing hearing on October 24, 2005, Jones protested the drug quantity
finding. In addition, he requested a non-Guidelines sentence on the ground that the
Guidelines 100:1 ratio for offenses involving powder as compared to crack cocaine
overstated the seriousness of his crime and resulted in a sentencing range greater than
necessary to effectuate the goals stated in 18 U.S.C. § 3553(a). In rejecting this argument,
the district court offered the following explanation for its decision to sentence Jones within
the Sentencing Guidelines range:
Congress has made a determination, and the Guideline Commission has also
made a determination – which I guess we can debate – that crack cocaine
should be dealt with harshly.
But that’s what it is, and I think the court in general is wise to follow that
directive and not substitute its own view. Crack cocaine, of those that receive
it and get addicted to it, destroy their own lives and they do certainly affect
others that commit other crimes.
...
There has been a history of drug use and abuse [by the defendant]. There was
a prior conviction involving drugs – admittedly some time ago, back in 1972,
that was a misdemeanor.
But I guess most disturbing also, there was the robbery conviction that Mr.
Jones was on parole for when this even happened. That’s especially of
concern.
3
Had Jones been found to have possessed more than 50 grams of crack as the
Probation Department recommended, his offense level would have been 32, which, with a
criminal history category of III, would have resulted in a recommended sentencing range of
151 to 188 months.
7
So this looked like, you know, a search of a premises where drug dealing
occurred. In fact, there’s evidence of that, that two or three weeks before this
search and arrest of Mr. Jones there were two buys out of that house for not an
insubstantial quantity of drugs. And I just think all of this suggests that a
guideline sentence is appropriate in this case, and I will impose such a
sentence.
Sentencing Tr. at 20-21. Nevertheless, “recogniz[ing] the severity of the drug calculations
for crack cocaine as opposed to powdered cocaine,” id. at 22, the district court imposed a
sentence at the low end of Jones’s Guidelines range: 121 months’ incarceration, three years’
supervised release, a $750 fine, and a $100 special assessment.
Jones filed a timely notice of appeal challenging both his underlying conviction and
the reasonableness of his sentence.
II. Discussion
A. Sufficiency of the Evidence to Prove Possession
Jones asserts that, “[c]ontrary to the jury’s finding, the government failed to establish
beyond a reasonable doubt that [he] knowingly and intentionally possessed in excess of five
grams [of] a mixture or a substance containing cocaine base.” Appellant’s Br. at 28.
Specifically, Jones contends that the government’s evidence, at most, showed that he was
present inside an apartment where more than five grams of cocaine base was found; it did not
establish his “dominion and control over the cocaine base,” facts necessary to prove
possession. Id. at 29.
A defendant making a sufficiency challenge “bears a heavy burden” because the law
8
requires us to view the evidence “in the light most favorable to the government” and to
uphold a conviction if “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 391; accord United
States v. Rodriguez, 392 F.3d 539, 544 (2d Cir. 2004) (internal quotation marks omitted)
(emphasis in original). While Jones is certainly correct that his “mere presence” in an
apartment where crack was found would be legally insufficient to establish his possession
of that contraband, United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988), we conclude that
the evidence introduced at trial amply supported the requisite jury finding that he “knowingly
[had] the power and the intention . . . to exercise dominion and control over” the seized
crack. United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996) (internal quotation marks
omitted) (alteration in original); see United States v. Paulino, 445 F.3d 211, 222 (2d Cir.
2006) (stating that defendant’s constructive possession over drugs found in his closet turned
on his “knowledge” that “he had the physical power to place things in and remove them from
the closet” and “his intent to exercise it with respect to the contraband”).
Notably, Jones was the only person present in a locked apartment, in which crack
residue was in plain sight in the kitchen. On more than one occasion, we have ruled that a
defendant’s presence alone in a room where contraband was in plain view was sufficient to
support a jury inference that he exercised dominion and control over it. See United States
v. Finley, 245 F.3d 199, 203 (2d Cir. 2001); United States v. Gordils, 982 F.2d 64, 71-72 (2d
Cir. 1992); see also United States v. Bonham, 477 F.2d 1137, 1138 (3d Cir. 1973) (“Where
9
a person is the sole occupant of a room and has the right to exclude all others from it, it may
logically be inferred that he has knowing dominion and control over objects so situated in his
room that he is likely to be aware of their presence.”). While Jones was arrested in the
apartment hallway rather than in the kitchen, the totality of the evidence nevertheless
permitted the jury to infer that, at least for the time that he was the single occupant of the
apartment, he knowingly and intentionally controlled the drugs plainly visible therein.
Specifically, compelling evidence established that the apartment was used for a single
purpose: to package and distribute drugs. There were no signs of residency, and nothing was
found in the apartment linking other persons to the premises. On the other hand, several of
Jones’s personal effects were in plain view, notably, his birth certificate and two
photographs. These circumstances, viewed most favorably to the government, by themselves
supported a jury inference that, at the time officers entered the apartment, the premises and
its contents were in Jones’s sole control.
Further supporting this conclusion was the currency found on the bathroom floor and
concealed behind a sofa pillow. Consistent with the cash nature of retail drug trafficking,
this currency strongly suggested Jones’s recent involvement in one or more crack sales at the
apartment. Indeed, Jones admitted that he sold “a little” crack at the same time that he tried
to distance himself from the larger manufacturing activity plainly evidenced in the apartment.
Trial Tr. at 85. Thus, whatever reservations the jury may have had with respect to arguments
that Jones also controlled ammunition not in plain view or intended to distribute the seized
10
crack residue, the totality of the evidence certainly permitted the jury reasonably to conclude
that Jones was not coincidentally present in the apartment but, rather, was there as a knowing
participant in the premises’ obvious drug operations and, as such, exercised sufficient
dominion and control over drugs plainly visible therein to be guilty of their possession.
Accordingly, we reject as without merit Jones’s sufficiency challenge to his conviction
for crack possession.
B. Reasonableness Challenge to Sentence
1. Standard of Review
In the aftermath of United States v. Booker, 543 U.S. 220 (2005), we review sentences
only for “reasonableness,” id. at 262, a deferential standard limited to identifying abuse of
discretion regardless of whether a challenged sentence is “inside, just outside, or significantly
outside the Guidelines range,” Gall v. United States, 128 S. Ct. at 591; see Kimbrough v.
United States, 128 S. Ct. at 576; United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.
2008). Reasonableness review proceeds in two steps: first, we must “ensure that the district
court committed no significant procedural error,” and second, if we find the sentence to be
“procedurally sound,” we must “take into account the totality of the circumstances” and
“consider the substantive reasonableness of the sentence.” Gall v. United States, 128 S. Ct.
at 597; see United States v. Williams, 524 F.3d 209, 214 (2d Cir. 2008).
In Gall, the Supreme Court noted various procedural errors that can render a sentence
unreasonable: (1) “failing to calculate (or improperly calculating) the Guidelines range,” (2)
11
“treating the Guidelines as mandatory,” (3) “failing to consider the [18 U.S.C.] § 3553(a)
factors,” (4) “selecting a sentence based on clearly erroneous facts,” or (5) “failing to
adequately explain the chosen sentence – including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 128 S. Ct. at 597. In the absence of any such
procedural error, Gall instructs that substantive reasonableness reduces to a single question:
“whether the District Judge abused his discretion in determining that the § 3553(a) factors
supported” the sentence imposed. Id. at 600 (describing inquiry as the “only question for the
Court of Appeals” where “the District Court committed no procedural error”). While these
principles are not new to reasonableness analysis in this circuit, Gall, Kimbrough, and Rita
v. United States, 127 S. Ct. 2456 (2007), provide useful instruction for their application.
With respect to the second procedural error identified in Gall — which is relevant to
this appeal, see infra Part II.B.3 (discussing district court’s reliance on Guidelines 100:1 ratio
for powder cocaine relative to crack cocaine) — the Supreme Court has now explained that,
as a necessary corollary to the constitutional proscription on treating the Guidelines as
mandatory, sentencing courts “may not presume that the Guidelines range is reasonable.”
Gall v. United States, 128 S. Ct. at 596-97; see Rita v. United States, 127 S. Ct. at 2465
(noting that “the sentencing court does not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply”). In short, while a sentencing court is statutorily obligated
to give fair consideration to the Guidelines before imposing sentence, see 18 U.S.C. §
3553(a)(4); United States v. Williams, 524 F.3d at 215 (holding district court committed
12
procedural error by using “sentence for which the case could have been plea-bargained in
Westchester County,” rather than Guidelines range, as “initial benchmark”), in the end, it
must make an “individualized assessment” of the sentence warranted by § 3553(a) “based
on the facts presented,” Gall v. United States, 128 S. Ct. at 597. Indeed, the sentencing
court’s claim on our deference derives, in part, from its unique ability to make such
assessments. As Gall emphasized, district courts have two distinct institutional advantages
over appellate courts in determining what sentence best achieves the purposes of § 3553(a)
in a given case: (1) district courts impose scores of sentences each year, and (2) a district
judge is in a superior position to find facts relevant to sentencing and to judge their import
under § 3553(a). See id. at 597-98. In the latter respect, district courts hear all the evidence
relevant to sentencing, make credibility determinations, and interact directly with the
defendant. See id. at 597. In the process, they “gain[] insights not conveyed by the record”
that are often critical to identifying a just sentence. Id. (internal quotation marks omitted).4
Gall and Rita further instruct that the same constitutional concerns that proscribe
district courts from according a presumption of reasonableness to Guidelines ranges prohibit
4
The last point may well have been undervalued in a mandatory Guidelines regime
focused on identifying and quantifying every possible sentencing factor. Even before
Booker, however, the Supreme Court recognized the importance of district court discretion
to identify those cases that did not fall within the Guidelines’ “heartland.” See Koon v.
United States, 518 U.S. 81, 98-99 (1996). Such recognition acknowledges that, in imposing
sentences, district judges work with the benefit of insights and judgments – into persons,
crimes, and the communities where crimes occur – that are not less valuable simply because
they are sometimes unquantifiable.
13
reviewing courts from presuming the unreasonableness of non-Guidelines sentences. See id.;
Rita v. United States, 127 S. Ct. at 2466-67 (explaining why appellate courts may presume
reasonableness of Guidelines sentences but may not presume unreasonableness of non-
Guidelines sentences). This admonition informs appellate review of all sentencing
challenges. See Kimbrough v. United States, 128 S. Ct. at 577 (Scalia, J., concurring)
(observing that Sixth Amendment prohibits appellate courts from applying rules or standards
of review that effectively place a “thumb on the scales” in favor of Guidelines sentences).5
For example, in reviewing a district court’s explanation of a sentence for
reasonableness at either the procedural or substantive step of analysis, Gall holds that an
appellate court may not demand “extraordinary” circumstances to justify non-Guidelines
sentences. Gall v. United States, 128 S. Ct. at 595. Nor may it employ a “rigid mathematical
5
Like the Sixth Circuit, sitting en banc in United States v. Vonner, we think “[o]ne
theme runs through” Rita, Gall, and Kimbrough:
Booker empowered district courts, not appellate courts and not the Sentencing
Commission. Talk of presumptions, plain error and procedural and substantive
rules of review means nothing if it does not account for the central reality that
Booker breathes life into the authority of district court judges to engage in
individualized sentencing within reason in applying the § 3553(a) factors to the
criminal defendants that come before them. If there is a pattern that emerges
from Rita, Gall, and Kimbrough, it is that the district court judges were
vindicated in all three cases . . . . [T]he central lesson from these decisions [is]
that district courts have considerable discretion in this area and thus deserve
the benefit of the doubt when we review their sentences and the reasons given
for them.
516 F.3d 382, 392 (6th Cir. 2008) (en banc).
14
formula” based on “the percentage of a departure as the standard for determining the strength
of the justifications required for a specific sentence.” Id. Such review standards are not
simply unhelpful to identifying unreasonable sentences; they are constitutionally suspect,
“com[ing] too close to creating an impermissible presumption of unreasonableness for
sentences outside the Guidelines.” Id.
These principles are necessarily borne in mind in considering Gall’s “uncontroversial”
observation that a major variance from the Guidelines range “should be supported by a more
significant justification than a minor one.” Id. at 597. Such a requirement does not presume
that the non-Guidelines sentence is unreasonable. See Irizarry v. United States, 128 S. Ct.
—, —, 2008 WL 2369164, *4 (June 12, 2008) (“Any expectation subject to due process
protection . . . that a criminal defendant would receive a sentence within the presumptively
applicable guideline range did not survive our decision in [Booker].”). It simply recognizes
that reasonableness review must “take into account the totality of the circumstances,” which
necessarily includes “the extent of any variance from the Guidelines range.” Id. To the
extent that the Guidelines “seek to embody the § 3553(a) considerations,” and reflect at least
“a rough approximation of sentences that might achieve § 3553(a)’s objectives,” Rita v.
United States, 127 S. Ct. at 2464-65, the more a sentence varies from the Guidelines range,
the less obvious it may be to a reviewing court why the district court concluded that such a
variance was necessary to comply with § 3553(a). In these circumstances, the district court’s
identification of a significant justification “assures reviewing courts (and the public) that the
15
sentencing process is a reasoned process.” Id. at 2469.
The Supreme Court has clearly signaled that district courts enjoy considerable
discretion in identifying the grounds that can justify a non-Guidelines sentence.6 In
Kimbrough, it specifically rejected an argument that had found some favor in appellate
courts, including our own, see, e.g., United States v. Castillo, 460 F.3d 337 (2d Cir. 2006)
(discussed infra at Part II.B.3.b), that a district court could not rely on a policy disagreement
with the Sentencing Commission to explain a non-Guidelines sentence. See Kimbrough v.
United States, 128 S. Ct. at 570 (citing government’s acknowledgment that “courts may vary
[from Guidelines ranges] based solely on policy considerations, including disagreements with
the Guidelines” (alteration in original)); cf. Rita v. United States, 127 S. Ct. at 2465
(observing that district court may consider arguments that “Guidelines sentence itself fails
properly to reflect § 3553(a) considerations”). While the Court observed that “closer review
6
Such broad discretion comports with 18 U.S.C. § 3661, which states: “No limitation
shall be placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” Even before Booker, the Supreme
Court specifically cited § 3661 in concluding that the law afforded reviewing courts no basis
“to invent a blanket prohibition against considering certain types of evidence at sentencing.”
United States v. Watts, 519 U.S. 148, 152 (1997); see also United States v. Concepcion, 983
F.2d 369, 387 (2d Cir. 1992) (“It had been established long before the advent of the
Guidelines that the sentencing court could properly take into account any information known
to it.”). The only limit pertains to invidious factors. See, e.g., United States v. Kaba, 480
F.3d 152, 156 (2d Cir. 2007) (“A defendant’s race or nationality may play no adverse role
in the administration of justice, including at sentencing.” (internal quotation marks omitted)).
16
may be in order when the sentencing judge varies from the Guidelines based solely on the
judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even
in a mine-run case,” Kimbrough v. United States, 128 S. Ct. at 574, it appeared to limit this
possibility to cases involving Guidelines based on the Commission’s traditional empirical
and experiential study, see id. at 575 (noting that, because district court’s disagreement was
with crack Guidelines that were not based on empirical and experiential study, case
“present[ed] no occasion for elaborative discussion” of possible “closer review” of district
court’s explanation for sentence).7
7
Kimbrough and Gall both emphasize that, after Booker, the Guidelines’ claim on
judicial respect derives from the fact that the Sentencing Commission “has the capacity
courts lack” to frame Guidelines on the basis of “empirical data and national experience,
guided by a professional staff with appropriate expertise.” Kimbrough v. United States, 128
S. Ct. at 574 (internal quotation marks omitted); see Gall v. United States, 128 S. Ct. at 594
(noting that, to the extent that the Guidelines represent “the product of careful study based
on extensive empirical evidence derived from the review of thousands of individual
sentencing decisions,” the sentencing judge “must explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a particular case with sufficient
justifications”); see also Rita v. United States, 127 S. Ct. at 2464-65 (observing that, in light
of the Commission’s “ongoing” revisions to the Guidelines, based on review of criminal
sentences and “advice from prosecutors, defenders, law enforcement groups, civil liberties
associations, experts in penology, and others[,] . . . . it is fair to assume that the Guidelines,
insofar as practicable, reflect a rough approximation of sentences that might achieve
§ 3553(a)’s objectives”).
At the same time, however, the Court recognized that, to the extent certain Guidelines
“do not exemplify the Commission’s exercise of its characteristic institutional role,” that fact
could obviate the need for closer review of non-Guidelines sentences based on policy
disagreements in “mine-run” cases. Kimbrough v. United States, 128 S. Ct. at 575; see also
Gall v. United States, 128 S. Ct. at 594 n.2 (recognizing that “not all of the Guidelines are
tied to . . . empirical evidence” and referencing Kimbrough for “effect” of this fact “on a
17
In sum, these references to “closer review” and “significant justification” cannot be
construed as a signal to view non-Guidelines sentences with inherent suspicion or to establish
a higher standard of review than abuse of discretion for some non-Guidelines sentences.
While an appellate court may certainly consider the extent of a Guidelines variance as well
as any policy concerns informing it in reviewing the totality of circumstances bearing on the
reasonableness of a challenged sentence, what it may not do is review the district court’s fact
finding for anything other than clear error. See Gall v. United States, 128 S. Ct. at 600
(identifying error in Court of Appeals’ employment of “analysis that more closed resembled
de novo review of the facts”). Nor may it reject a variance simply because the resulting
sentence differs from that which the reviewing court might have imposed if it had been
district judge’s authority to deviate from the Guidelines range”); United States v.
Verkhoglyad, 516 F.3d at 129 n.4 (recognizing, without deciding, that sentencing variance
from probation Guidelines formulated without reference to empirical and experiential
evidence might not warrant closer review); U.S. Sentencing Commission, Supplementary
Report on the Initial Sentencing Guidelines and Policy Statements (1987) (noting that the
initial version of the Guidelines was based on “average current practice” and so “[did] not
duplicate current practice and [was] not intended to do so”); Stephen Breyer, Federal
Sentencing Guidelines Revisited, 11 Fed. Sent'g Rep. 180, 181 (1999) (observing that the
Commission’s efforts to set sentencing ranges that accurately reflected the objectives of
§ 3553(a) were hampered by the Commission's “lack[] of empirical data that [(1)]
convincingly linked length of sentence to the prevention of crime.” or (2) “permit[ted] it
confidently to assert that a certain amount of punishment would lead to ‘rehabilitation’”);
Illene Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines,
80 J. Crim. L. & Criminology 883, 923 (setting forth, based on the author’s experience as a
member of the U.S. Sentencing Commission, the various reasons why the “[sentencing]
ranges promulgated in the first iteration” of the Guidelines did not “correlat[e] [with] the past
practice data reviewed” by the Commission).
18
entrusted with that responsibility. See id. at 597 (“The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.”).
Sentencing is not, after all, a precise science. See generally Irizarry v. United States,
128 S. Ct. at ---, 2008 WL 2369164 at *5 (noting that “[s]entencing is a fluid and dynamic
process” (internal quotation marks omitted)). Rarely, if ever, do the pertinent facts dictate
one and only one appropriate sentence. Rather, the facts may frequently point in different
directions so that even experienced district judges may reasonably differ, not only in their
findings of fact, but in the relative weight they accord competing circumstances. Such
reasonable differences necessarily mean that, in the great majority of cases, a range of
sentences — frequently extending well beyond the narrow ranges prescribed by the
Guidelines — must be considered reasonable.
This is not to suggest that district courts have a blank check to impose whatever
sentences suit their fancy. The statutory mandate of § 3553 — which includes the
requirement for respectful consideration of the Guidelines, see id. § 3553(a)(4) — necessarily
channels district court sentencing discretion. Nevertheless, assuming that a district court
satisfies its § 3553 obligations and commits no other procedural error, the duty of a
reviewing court is not to identify the “right” sentence but, giving due deference to the district
court’s exercise of judgment, to determine whether the sentence imposed falls within the
broad range that can be considered reasonable under the totality of the circumstances. See
19
Gall v. United States, 128 S. Ct. at 597 (holding that appellate court “must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the [challenged] variance”). In short, in determining substantive reasonableness,
a reviewing court will set aside only those outlier sentences that reflect actual abuse of a
district court’s considerable sentencing discretion.8
With these review principles in mind, we consider Jones’s particular challenges to the
reasonableness of his sentence.
2. Miscalculation of the Guidelines
Jones contends that his sentence is procedurally unreasonable because the district
court committed significant procedural error by miscalculating his Sentencing Guidelines
range. See Gall v. United States, 128 S. Ct. at 597; United States v. Toohey, 448 F.3d 542,
546 (2d Cir. 2006). Specifically, Jones faults the district court for including within the drug
quantity used to determine his Guidelines base offense level an amount of crack cocaine that
could have been purchased with the cash seized at the time of Jones’s arrest. He further
submits that more than a preponderance of the evidence was necessary to permit an inference
8
District courts’ exercise of their discretion in imposing non-Guidelines sentences
is critical to the ongoing development of responsible Guidelines. As the Supreme Court
noted in Rita, the district court’s “reasoned sentencing judgment, resting upon an effort to
filter the Guidelines’ general advice through § 3553(a)’s list of factors, can provide relevant
information to both the court of appeals and ultimately the Sentencing Commission. The
reasoned responses of these latter institutions to the sentencing judge’s explanation should
help the Guidelines constructively evolve over time, as both Congress and the Commission
foresaw.” Rita v. United States, 127 S. Ct. at 2469.
20
of drug possession to be drawn from the seized money. We are not persuaded by these
arguments.
a. Drug Quantity May Be Inferred from Cash Proceeds of Drug
Trafficking
A Sentencing Guidelines calculation must begin with an identification of the
defendant’s relevant conduct, which in the case of a drug possession offense includes the
quantity of drugs controlled by the defendant, whether as a principal or as an aider and
abettor. See generally United States v. Shonubi, 103 F.3d 1085, 1088-89 (2d Cir. 1997)
(discussing Guidelines’ focus on “relevant conduct,” rather than “convicted conduct”);
U.S.S.G. § 1B1.3 (discussing relevant conduct). The quantity of drugs attributable to a
defendant is a question of fact. As such, if the evidence – direct or circumstantial – supports
a district court’s preponderance determination as to drug quantity, we must sustain that
finding. Further, in reviewing a legal challenge to a quantity finding we are mindful of the
Guidelines’ express instruction that where there has been no seizure of narcotics, or where
the quantity seized does not reflect the true scale of the offense, a sentencing judge should
“approximate” the relevant drug quantity, see id. § 2D1.1, Application Note 12, based on
a preponderance of the evidence, see id. § 6A1.3 (Policy Statement), comment.
Consistent with this Guidelines principle, we reject defendant’s argument that, as a
matter of law, drug quantity cannot be inferred from seized currency. We hold that where,
as in this case, seized currency appears by a preponderance of the evidence to be the proceeds
21
of narcotics trafficking, a district court may consider the market price for the drugs in which
the defendant trafficked in determining the drug quantity represented by that currency. While
this appears to be the first time that we specifically approve such a drug quantity inference
in a published opinion, the conclusion is hardly novel as evidenced by our summary approval
of such cash-based drug quantity findings in a number of non-precedential orders. See
United States v. Smith, 253 F. App’x 69, 71 (2d Cir. 2007) (affirming sentence where district
court converted “$4,500 in cash seized from [the defendant’s] bedroom wastepaper basket
to an equivalent drug amount of 45 grams of [crack]” for purposes of U.S.S.G. § 2D1.1);
United States v. Nelson, No. 97-1162, 1997 WL 774409, *2 (2d Cir. Dec. 17, 1997) (noting
defendant’s possession of “large sums of cash which can be converted to drug quantities for
purposes of sentencing”).
Indeed, our eight sister circuits that have addressed the issue have uniformly
concluded that a sentencing court may derive drug quantity from seized currency that appears
to be the proceeds of illegal trafficking. See United States v. Keszthelyi, 308 F.3d 557, 576-
78 (6th Cir. 2002) (upholding conversion of currency to drug quantity and observing that
“government must prove by a preponderance of the evidence both the amount of money
attributable to drug activity and the conversion ratio – i.e., the price per unit of drugs”);
United States v. Otis, 127 F.3d 829, 836 (9th Cir. 1997) (upholding conversion of currency
to drug quantity where “evidence connect[ed] the money to drug-related activities” and
“[t]here was evidence of the going rate for cocaine in Chicago which supported the
22
conversion rate”); United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997) (upholding
district court’s “conversion of $90,000 into five kilograms of cocaine”); United States v.
Tokars, 95 F.3d 1520, 1542 (11th Cir. 1996) (holding “that money attributable to the drug
transactions may be converted to the equivalent amount of drugs for purposes of determining
the drug quantity”); United States v. Rios, 22 F.3d 1024, 1026-27 (10th Cir. 1994) (same);
United States v. Watts, 950 F.2d 508, 514 (8th Cir. 1991) (same); United States v. Hicks, 948
F.2d 877, 881-82 (4th Cir. 1991) (same); United States v. Gerante, 891 F.2d 364, 368-70 (1st
Cir. 1989) (same).
We now formally reach the same conclusion and hold that a district court may use
money attributable to drug transactions to determine the quantity of drugs relevant to
sentencing.
b. No Higher Standard than Preponderance of the Evidence Is
Necessary to Infer Drug Quantity from Cash Proceeds
Jones argues that, if seized cash is used to determine drug quantity, our decision in
United States v. Shonubi demands that the inference be supported by more than a
preponderance of the evidence. See Appellant’s Br. at 26. His argument misreads our
precedent. In Shonubi, we observed that, because the then-mandatory Guidelines system
“prescribes punishment for unconvicted conduct at the same level of severity as convicted
conduct,” courts must “proceed carefully” in establishing standards for proving relevant
conduct, United States v. Shonubi, 103 F.3d at 1089, and should look for “specific evidence”
23
of any unconvicted drug quantity that “will significantly enhance a sentence,” id. at 1089-90
(citing United States v. Gigante, 94 F.3d 53, 56-57 (2d Cir. 1996)). But, as we subsequently
clarified in United States v. Cordoba-Murgas, 233 F.3d 704 (2d Cir. 2000), the quoted
language from Shonubi “was merely dictum. In light of this Court’s continual application
of the preponderance of the evidence standard, it is incorrect to construe the Shonubi
language as authorizing the use of a higher standard of proof,” id. at 708; accord United
States v. Bennett, 252 F.3d 559, 565 (2d Cir. 2001) (reiterating that Shonubi standards
statement was dictum).
Jones’s argument for a more rigorous standard of proof not only lacks support in our
precedent, but is precluded by the Supreme Court’s decision in United States v. Watts, 519
U.S. 148. Watts held that even acquitted conduct may be treated as relevant for purposes of
Guidelines calculations “so long as that conduct has been proved by a preponderance of the
evidence.” Id. at 157; accord United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005).
Of course, after Booker, there is even less reason for judicial imposition of enhanced
standards of proof to the determination of Guidelines ranges that are, in the end, only
advisory. See generally United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005)
(holding that “[j]udicial authority to find facts relevant to sentencing by a preponderance of
the evidence survives Booker”); United States v. Vaughn, 430 F.3d at 525 (same).
Accordingly, like our sister circuits, we hold that a district court may equate seized
currency to a quantity of drugs, at least when a preponderance of the evidence indicates that
24
the currency was used to purchase drugs.
c. The Record Supports the District Court’s Preponderance
Finding that Jones Possessed a Quantity of Crack
Commensurate with the Cash Seized at the Time of His Arrest
Because a district court’s determination of drug quantity is a finding of fact, our
review is limited to clear error. See United States v. Powell, 404 F.3d 678, 681 (2d Cir.
2005). We identify no such error in the district court’s preponderance finding that the $883
recovered from the subject apartment indicated Jones’s prior possession and sale of
approximately 25.75 grams of crack cocaine in addition to the 22 grams of crack actually
seized from the apartment.
First, the district court reasonably found that Jones possessed the seized money. Jones
contends that no such inference was possible given the lack of “specific evidence, such as
fingerprints or a statement,” indicating his knowledge or control of the currency. Appellant’s
Br. at 27. For essentially the same reasons that we rejected Jones’s sufficiency challenge to
the jury’s finding beyond a reasonable doubt that he possessed the seized drugs, we reject his
challenge to the sentencing court’s preponderance finding that he possessed the seized cash.
Although Jones was not arrested with $883 in his hands nor discovered in the living room
or bathroom where these monies were found, the cash – minimally concealed behind a sofa
pillow and in plain view on a bathroom floor – was certainly readily accessible to him as the
sole occupant of the subject premises. The only use of the uninhabited premises was plainly
25
crack trafficking, and Jones admitted that he sold crack. Indeed, when the curious location
of the money is considered in light of this obvious and singular use of the premises, it
appears not only more likely than not that Jones knew of the seized money, but also more
likely than not that Jones had recently acquired the money in the course of crack transactions
conducted in the apartment in which Jones was arrested. See generally United States v.
Rizzo, 349 F.3d 94, 98 (2d Cir. 2003) (“At sentencing, disputed factual allegations must be
proven by the government by a preponderance of the evidence — meaning they are more
likely than not true.” (internal citation omitted)). Under these circumstances, the district
court acted well within its discretion in making a preponderance finding that Jones possessed
the seized money.
Second, the district court reasonably found that the seized money represented the
proceeds of drug trafficking. Indeed, Jones does not seriously suggest otherwise, nor could
he given evidence that (1) the subject apartment served only as a crack “gatehouse,”
uninhabited and essentially unfurnished except with items that facilitated the manufacture
and distribution of crack; (2) significant crack residue was plainly visible throughout the
kitchen, but no crack bundles were found on the premises despite the presence of discarded
packaging and the scent of burnt acetone, circumstances strongly suggesting recent crack
manufacture; (3) crack had been purchased at the subject apartment a few weeks earlier by
a confidential informant; (4) Jones admitted selling crack; (5) at the time of the seizure, Jones
had no other means of employment that could be a legitimate source of the money; and (6)
26
the money was found concealed behind a sofa pillow and in plain view on the bathroom
floor. These circumstances, viewed in the light most favorable to the government, permitted
the sentencing court to find that the seized monies were, more likely than not, narcotics
proceeds.
Third, the district court reasonably found that the seized $883 would have purchased
25.75 grams of crack cocaine. It based this calculation on the price the government’s
confidential informant had paid for crack cocaine recently purchased from the subject
premises. See United States v. Rios, 22 F.3d at 1026-27 (upholding conversion of currency
to drug quantity based upon price previously paid by confidential informant to defendant for
drugs). Because the confidential informant had twice purchased 3.5 grams of crack cocaine
for $120, the district court reasonably found that Jones would have been able to sell crack
for approximately $34 per gram, so that the seized $883 evidenced Jones’s prior possession
and sale of 25.75 grams of crack.
In sum, the district court did not clearly err in finding that a preponderance of the
evidence established Jones’s possession of both the 22 grams of crack actually seized from
the subject apartment and an additional 25.75 grams of crack of which the seized $883 were
the likely proceeds. Based on these findings, it correctly concluded that Jones’s possession
of a total of approximately 47 grams of crack resulted in a Guidelines base offense level of
30, see U.S.S.G. § 2D1.1 (providing for level 30 to apply to crimes involving 35 to 50 grams
of cocaine base), which, coupled with a criminal history category of III, provided a
27
Guidelines sentencing range of 121 to 151 months’ incarceration. Accordingly, we reject as
without merit Jones’s argument that his sentence is infected by any procedural error in the
calculation of his Guidelines range.
3. Reliance on the Guidelines 100:1 Ratio to Determine the Seriousness
of Jones’s Crack Possession
a. Defendant’s Reasonableness Challenge
Jones asserts that, even if the district court properly calculated his Guidelines range,
his sentence, although at the bottom of that range, was still “greater than necessary” to reflect
the seriousness of his crime or to serve the other sentencing objectives specified in § 3553(a).
As a challenge to the substantive reasonableness of a sentence, such an argument confronts
significant hurdles. This court has stated that, “in the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of sentences that would be
reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d
Cir. 2006); accord United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008). Moreover,
in Rita v. United States, the Supreme Court observed that “where [the sentencing judge] and
[Sentencing] Commission both determine that the Guidelines sentence[] is an appropriate
sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its
‘not greater than necessary’ requirement).” 127 S. Ct. at 2467. We do not reach Jones’s
substantive reasonableness challenge, however, because we identify a preliminary procedural
concern that warrants remand.
28
Jones submits that the district court committed significant procedural error by giving
determinative effect to the Guidelines because they reflected a policy determination by both
Congress and the Commission that crimes involving one gram of crack cocaine should be
viewed to be as serious as those involving one hundred grams of powder cocaine. See
U.S.S.G. § 2D1.1 (2006). To address this argument, we must first briefly review the crack
Guidelines and recent precedent relevant to their application by district courts.
b. The Crack Guidelines
Because the history and provenance of the crack Guidelines have been exhaustively
described by our court in United States v. Castillo, 460 F.3d at 344-51, and by the Supreme
Court in Kimbrough v. United States, 128 S. Ct. at 566-69, we here highlight only those parts
relevant to our decision.
In the Anti-Drug Abuse Act of 1986, Congress created “a two-tiered scheme of five-
and ten-year mandatory minimum sentences for drug manufacturing and distribution
offenses.” Id. at 566. In distinguishing the “major” traffickers who would be subject to the
ten-year term from the “serious” traffickers who would be eligible for five-year terms,
Congress relied exclusively on “the weight of the drugs involved in the offense.” Id. at 566-
67. Treating one gram of crack as the equivalent of 100 grams of powder cocaine, the Act
applies a five-year mandatory minimum term to any defendant accountable for five grams
of crack or 500 grams of powder, see 21 U.S.C. § 841(b)(1)(B)(ii), (iii); and a ten-year
29
mandatory minimum term to any defendant accountable for 50 grams of crack or 5,000 grams
of powder, see id. § 841(b)(1)(A)(ii), (iii). In developing Guidelines for drug offenses, the
Sentencing Commission “employed the 1986 Act’s weight-driven scheme,” so that the drug
quantity table in U.S.S.G. § 2D1.1(c), inter alia, mimicked the Act’s 100:1 ratio for offenses
involving cocaine powder and crack cocaine. Kimbrough v. United States, 128 S. Ct. at 567
(observing that “[t]he statute itself specifies only two quantities of each drug, but the
Guidelines go further and set sentences for the full range of possible drug quantities using
the same 100-to-1 quantity ratio” (internal quotation marks omitted)).
Over time, the Commission that authored § 2D1.1(c) became one of its leading critics.
See id. at 568 (“Based on additional research and experience with the 100-to-1 ratio, the
Commission concluded that the disparity fails to meet the sentencing objectives set forth by
Congress.” (internal quotation marks omitted)). After failing in several attempts to amend
the Guidelines 100:1 ratio, see United States v. Castillo, 460 F.3d at 346-50 (describing
Commission efforts), the Commission recently implemented an across-the-board two-point
reduction of the base offense level for crack offenses effective November 1, 2007. See
Amendments to the Sentencing Guidelines for the United States Courts, 72 Fed. Reg. 28,571-
28,572 (2007); see also Kimbrough v. United States, 128 S. Ct. at 569 (noting that “[t]his
modest amendment yields sentences for crack offenses between two and five times longer
than sentences for equal amounts of powder”). On December 11, 2007, the Commission
unanimously voted to apply this amendment retroactively, so that defendants sentenced under
30
the former crack Guidelines are now eligible for a reduction in their sentences. See United
States v. Regalado, 518 F.3d 143, 150 (2d Cir. 2008); U.S.S.G. § 1B1.10(c); see also 18
U.S.C. § 3582(c)(2) (“[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission . . . upon motion of the defendant or the Director of the Bureau of
Prisons, or on its own motion, the court may reduce the term of imprisonment . . . .”).
c. Precedent Relevant to Post-Booker Application of the Crack
Guidelines
Jones submits that the district court felt itself bound by the Guidelines’ assessment of
the relative seriousness of crimes involving crack cocaine as compared to powder cocaine,
so that it never made its own “individualized assessment” of the seriousness of his crime.
Gall v. United States, 128 S. Ct. at 597. If this was, in fact, the district court’s view, it was
subsequently mandated by this court. In United States v. Castillo, we ruled that “district
courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds.” 460
F.3d at 340. We reiterated the limitation in United States v. Park: “[I]t would be error for a
sentencing judge to impose a non-Guidelines sentence on the basis of a disagreement with
Congress’s policy judgment regarding the 100:1 ratio.” 461 F.3d 245, 250 (2d Cir. 2006).
The Supreme Court concluded otherwise in Kimbrough, effecting a sea change in our
jurisprudence. See United States v. Regalado, 518 F.3d at 147 (observing that “until
Kimbrough and Gall, this Circuit tended to discourage district courts from deviating from the
31
crack cocaine Guidelines”); see also United States v. Jimenez, 512 F.3d 1, 8 (1st Cir. 2007)
(“The legal landscape anent the crack/powder disparity changed significantly on December
10, 2007, when the Supreme Court held that a district court can deviate from a properly
calculated guideline sentencing range on the basis of that disparity.”). In Kimbrough, the
Court rejected the Justice Department’s argument that “Guidelines adopting the 100-to-1
ratio are an exception to the general freedom that sentencing courts have to apply the §
3553(a) factors . . . . because the ratio is a specific policy determination that Congress has
directed sentencing courts to observe.” Kimbrough v. United States, 128 S. Ct. at 570
(internal quotation marks, brackets, and citations omitted). It ruled that, in fashioning “an
appropriate sentence,” a sentencing court must weigh the “§ 3553(a) factors and any
unwarranted disparity created by the crack/powder ratio itself.” Id. at 574. The Court thus
concluded 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 § 3553(a)’s purposes, even in a mine-run case.” Id. at 575.
Recognizing that our precedent may have unduly restricted district courts in their
ability to assess for themselves the seriousness of particular crack offenses, we recently
fashioned a remand mechanism for crack sentencing cases on appeal at the time Kimbrough
was decided. See United States v. Regalado, 518 F.3d at 148-49. We ruled that even
“[w]here a defendant has not preserved the argument that the sentencing range for the crack
cocaine offense fails to serve the objectives of sentencing under § 3553(a), we will remand
32
to give the district court an opportunity to indicate whether it would have imposed a non-
Guidelines sentence knowing that it had discretion to deviate from the Guidelines to serve
those objectives.” Id. at 149.9
d. The Need to Vacate and Remand Jones’s Case for Resentencing
Because Jones specifically argued in the district court that application of the
Guidelines’ powder/crack disparity would result in a sentence greater than necessary to serve
the objectives of § 3553(a) in his case, his procedural challenge to the mandatory application
of these Guidelines is preserved for appeal, so that our review is not limited to plain error as
in Regalado. See id. at 148-49. Having carefully reviewed the sentencing record, we find
it ambiguous in revealing the error charged by Jones. On the one hand, the district court’s
statement that the Guidelines’ “harsh[]” treatment of crack offenses is “what it is, and I think
the Court in general is wise to follow that directive and not substitute its own view,”
Sentencing Tr. at 20-21, might be construed to accord an impermissible presumption of
reasonableness to the Guidelines sentencing range, see Gall v. United States, 128 S. Ct. at
596-97, and to overlook the court’s discretion to reject the 100:1 ratio as a fair measure of
the seriousness of Jones’s offense, see Kimbrough v. United States, 128 S. Ct. at 575. On
9
Where a defendant sentenced pursuant to the former crack Guidelines has waived
his right to appeal, neither Kimbrough, Regalado, nor the amended Guidelines “constitute
grounds for finding [that] appeal waiver unenforceable.” United States v. Lee, 523 F.3d 107,
107 (2d Cir. 2008). We had no occasion in Lee to consider such a defendant’s ability to file
a motion in the district court pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence in
light of the retroactive 2007 amendments.
33
the other hand, ensuing statements could be construed to indicate the district court’s
independent assessment that, in Jones’s case, a Guidelines sentence best served the objectives
of § 3553(a): the court detailed various harms attributable to crack; it noted the defendant’s
history of drug abuse; and it expressed particular concern at his demonstrated recidivism.
It then concluded “all of this suggests that a guideline sentence is appropriate in this case.”
Sentencing Tr. at 21.
The fact that the record is somewhat ambiguous as to the district court’s
understanding of the presumption limitation identified in Rita and Gall and the variance
discretion recognized in Kimbrough is not surprising given that the district judge sentenced
Jones without the benefit of these decisions. Any confusion on these points would be
understandable given that prior to Kimbrough and Gall, a number of courts, our own
included, misapprehended the scope of a district court’s authority to reject the Guidelines
100:1 ratio as an accurate measure of the seriousness of a particular crack offense. See
United States v. Castillo, 460 F.3d at 361; see also id. at 353 (noting that, even after Booker,
a number of district courts, “while expressing discomfort or dismay about the heightened
sentences for crack offenses,” reasonably concluded “that it was up to Congress to set
sentencing policy and that they could not deem this disparity ‘unwarranted’ within the
meaning of the federal sentencing statute, given Congress’s repeated refusal to approve a
lower ratio”); United States v. Eura, 440 F.3d 625, 633 (4th Cir. 2006) (“[I]t simply would
go against two explicit Congressional directives to allow sentencing courts to treat crack
34
cocaine dealers on the same, or some different judicially-imposed, plane as powder cocaine
dealers.”); United States v. Pho, 433 F.3d 53, 63 (1st Cir. 2006) (“[T]he district court’s
categorical rejection of the 100:1 ratio impermissibly usurps Congress’s judgment about the
proper sentencing policy for cocaine offenses.”). Thus, while we generally assume a district
court’s understanding of its various sentencing options, in the somewhat “unusual
circumstances” of this case, where the district court’s explanation for its decision to impose
a Guidelines sentence is ambiguous as to its understanding of an area of law only recently
clarified by the Supreme Court, we conclude that justice is best served by vacating Jones’s
sentence and remanding his case for further proceedings consistent with Kimbrough and
Gall. Cf. United States v. Regalado, 518 F.3d at 148 (holding that “unusual circumstances
surrounding application of the crack Guidelines in [this] Circuit after Booker and before
Castillo justify a narrow and limited exception to our general rule that sentencing courts are
presumed to know and follow the applicable sentencing law”); see United States v. Thorpe,
191 F.3d 339, 342-44 (2d Cir. 1999) (ordering that sentence be vacated and case remanded
where judge’s sentencing remarks evidenced ambiguity as to correct understanding of
available sentencing option).
In deciding to remand, we are mindful that to secure the objectives of § 3553(a),
district courts, no less than the Sentencing Commission, must fully exercise their proper
sentencing authority. See Rita v. United States, 127 S. Ct. at 2463 (“[T]he sentencing
statutes envision both the sentencing judge and the Commission as carrying out the same
35
basic § 3553(a) objectives, the one, at retail, the other at wholesale.”). While the
Commission has “the capacity courts lack to base its determinations on empirical data and
national experience, guided by a professional staff with appropriate expertise,” Kimbrough
v. United States, 128 S. Ct. at 574 (internal quotation marks omitted), the district court has
the singular advantage of actual and extensive sentencing experience, see Gall v. United
States, 128 S. Ct. at 598. Moreover, the district judge “has access to, and greater familiarity
with, the individual case and the individual defendant before him than the Commission or
the appeals court.” Rita v. United States, 127 S. Ct. at 2469. For this reason, it is the district
court’s particular trust to ensure the “uniform and constant” principle of the federal
sentencing tradition, specifically, that “every convicted person [be considered] as an
individual and every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518
U.S. at 113. Consistent with this district court duty, Congress has long decreed that “[n]o
limitation shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661; see
United States v. Eberhard, 525 F.3d at 177; United States v. Watts, 519 U.S. at 152; United
States v. Concepcion, 983 F.2d at 387. Thus, just as we may not bar a district court from
considering facts simply because they were also considered by the Commission, see
Kimbrough v. United States, 128 S. Ct. at 558, the district court “may not presume” the
36
reasonableness of the Commission’s Guidelines sentencing ranges, see Gall v. United States,
128 S. Ct. at 596-97. Rather, in every case, the district court “must make an individualized
assessment” of the appropriate sentence “based on the facts presented” and the factors
detailed in § 3553(a). Id. at 597.
In remanding this case to ensure that Jones’s sentence is informed by such an
individualized assessment, we signal no criticism of the able and conscientious district judge.
Nor do we express any view as to what sentence Jones should receive on remand or whether
it should fall within or outside his Guidelines range. On remand, the district judge will be
in the best position to choose among all available sentencing options and to state with a
clarity hopefully facilitated by Kimbrough and Gall the reasons for the option he chooses.
See United States v. Thorpe, 191 F.3d at 344. Our decision to remand is further reinforced
by the fact that the Guidelines applicable to Jones’s offense have been retroactively amended
in his favor while his case was on appeal. See United States v. Vazquez, 53 F.3d 1216, 1228
(11th Cir. 1995) (holding that where applicable Guidelines are retroactively amended while
defendant’s sentence is on appeal, case should be “remanded to the district court to determine
in its discretion whether or not an adjustment was warranted in light of an ameliorative
amendment”); United States v. Connell, 960 F.2d 191, 197 (1st Cir. 1992) (ordering remand
because “[w]hen, after a defendant has been sentenced, a guideline amendment occurs under
circumstances in which the defendant becomes eligible for, but not automatically entitled to,
a reduced sentence, we think it is preferable that the matter of sentence reduction be
37
considered in the first instance by the sentencing court, not by an appellate court”).
III. Conclusion
To summarize, we conclude that (1) the trial evidence was sufficient to support the
jury’s guilty verdict on the crack possession count of conviction; (2) the district court did not
miscalculate Jones’s Guidelines range by including within the relevant drug quantity an
amount of crack that Jones could have sold for the cash seized at the time of his arrest; and
(3) ambiguities in the sentencing record respecting the district court’s understanding of its
authority not to follow the Guidelines 100:1 ratio in determining the seriousness of Jones’s
crack offense warrant a plenary remand so that the court can resentence the defendant
consistent with this opinion and those of the Supreme Court in Kimbrough v. United States
and Gall v. United States, and with due regard for recent retroactive changes to the applicable
Sentencing Guidelines.
A FFIRMED IN P ART; V ACATED AND R EMANDED IN P ART.
38