NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2008
Decided January 5, 2009
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1802
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 07‐CR‐135‐S‐01
KYLIN LITTLE,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Kylin Little pleaded guilty to distributing crack, 21 U.S.C. § 841(a)(1), and being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court sentenced him to 95
months’ imprisonment, which was within the guidelines range. Little appeals his sentence,
arguing that the Sentencing Guidelines that went into effect in November 2007 create
unwarranted sentencing disparities among defendants convicted of crack offenses because
No. 08‐1802 Page 2
the equivalency ratios between crack and cocaine powder vary for different offense levels.
We affirm Little’s sentence.
After Little entered his guilty plea, the probation officer determined that Little was
responsible for distributing 10.31 grams of crack, resulting in a base offense level of 24. The
presentence investigation report recommended a two‐level increase in Little’s offense level
to account for the firearms conviction, and a three‐level decrease for acceptance of
responsibility. His total offense level of 23 combined with his criminal history category of V
resulted in a recommended guidelines range of 84 to 105 months’ imprisonment.
Before the sentencing hearing, Little submitted a Sentencing Memorandum and
Motion for Downward Variance in which he argued for a below‐guidelines sentence. Little
contended that the 2007 guidelines created unfair variations in the powder‐to‐crack cocaine
sentencing ratio. Little submitted a chart comparing the amounts of powder and crack
cocaine that would put a defendant within each offense level. He determined that, among
the different offense levels, there was a wide range in the relative amounts of powder and
crack cocaine that would warrant the same guidelines sentence. For instance, according to
offense level 26, a defendant would receive the same guidelines range for possessing 500
grams of powder cocaine as a second defendant responsible for only 20 grams of crack (a
25:1 ratio). But according to offense level 24 (which applied to the amount of crack that
Little possessed), a defendant would receive the same guideline range for having 400 grams
of powder cocaine as another defendant responsible for just 5 grams of crack (an 80:1 ratio).
Little concluded that the variance among these ratios caused “unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct.” Little requested that the court use a 25:1 ratio (the lowest among all the offense
levels) in his case. Applying that ratio, he reasoned that 10.31 grams of crack was
equivalent to 257.75 grams of powder cocaine (10.31 × 25), producing an offense level of 20.
See U.S.S.G. § 2D1.1. Adjusting for the firearm offense, acceptance of responsibility, and his
criminal history score, Little urged the district court to calculate a guidelines range of 57 to
71 months. Little then asked the court to take into account the 18 U.S.C § 3553(a) factors and
impose a sentence of 51 to 63 months.
At the March 2008 sentencing hearing, the district court accepted the PSR’s
guidelines calculations and sentenced Little to a 95‐month prison term, in the middle of the
guidelines range. In determining the sentence, the court said that it was “discouraged” by
Little’s history of violence against women and noted that he did not “show any sign of
really being about to change.” The court explained that it had taken into account the
§ 3553(a) factors and concluded that a sentence in the middle of the guidelines range “is
sufficient and necessary to hold you accountable for your criminal conduct, to protect the
community, and afford you opportunities for correctional treatment.” Finally, the court
explained that Little was not entitled to a lower sentence based on the differences among
the powder‐to‐crack sentencing ratios in the guidelines. The court elaborated that “I do not
No. 08‐1802 Page 3
believe there is a basis for a variance in this instance. I realize [defense counsel] has pointed
out that there is a huge variance at some levels of the chart, but it is not—that same great
discrepancy does not carry all the way through the chart, and I think in this case, Mr. Little
has already gotten the benefit of the lowered guideline and I’m not persuaded that a
variance would be appropriate in his case.”
Little challenges his sentence, contending that the crack sentencing guidelines create
unwarranted sentencing disparities among crack offenders, and that the district court did
not adequately explain its reason for rejecting this argument. He does not, however, argue
that the varying equivalency ratios are unconstitutional. Cf. Mistretta v. United States, 488
U.S. 361, 412 (1989); United States v. Westbrook, 125 F.3d 996, 1010, 1010 n.16 (7th Cir. 1997)
(collecting cases). And although he criticizes how the Sentencing Commission arrived at
those equivalency ratios, he does not claim that the Commission violated its authority in
enacting them. Cf. United States v. Ebbole, 917 F.2d 1495, 1501 (7th Cir. 1990). Instead he
presses his view that, because the powder‐to‐crack cocaine ratios are not the same
throughout the 2007 guidelines, that variation creates an “unwarranted sentencing
disparity” among drug offenders and reflects an “unsound judgment” of the Sentencing
Commission. Little characterizes this argument as a challenge to the reasonableness of his
sentence. Therefore, he concludes, to avoid unwarranted sentencing disparities (as 18
U.S.C. § 3553(a) requires), the court needed to use a 25:1 equivalency ratio. This
interpretation of § 3553(a) is a question of law, which we review de novo. See United States v.
Hollins, 498 F.3d 622, 629 (7th Cir. 2007).
One of the goals of the guidelines is to avoid “the wide disparity on sentences
imposed by different federal courts for similar criminal conduct by similar offenders.”
U.S.S.G. § 1A1.1 Pt.A(3); see also United States v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007).
But the object of sentencing is not to eliminate all disparities, just those that are
unwarranted. See United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). The
Sentencing Commission enacted the new guidelines out of concern that earlier versions of
the guidelines, which adopted an across‐the‐board 100:1 powder‐to‐crack cocaine ratio,
punished crack offenses too harshly and produced unwarranted sentencing disparities. See
Amendments to the Sentencing Guidelines for the United States Courts, 72 Fed. Reg. 28573
(2007); see also Kimbrough v. United States, 128 S. Ct. 558, 569 (2007). Accordingly, these new
guidelines uniformly reduced by two levels the base offense levels for all crack offenses
and, consequently, altered the equivalency ratios at different offense levels. See
Amendments to the Sentencing Guidelines for the United States Courts, 72 Fed. Reg. 28573
(2007); see also Kimbrough, 128 S. Ct. at 569. The Supreme Court has recognized that the 2007
guidelines reduce unwarranted sentencing disparities, even while incorporating different
powder‐to‐crack cocaine ratios at different offense levels. Kimbrough, 128 S. Ct. at 573
(observing that the guidelines “now advance a crack/powder ratio that varies (at different
offense levels) between 25 to 1 and 80 to 1”).
No. 08‐1802 Page 4
The different equivalency ratios in the guidelines do not violate § 3553(a)(6) because
that section requires avoidance only of unwarranted disparities in sentences, not ratios in the
guidelines. The best way to avoid unwarranted sentencing disparities among similar crack‐
possessing defendants is for district courts to impose sentences within the guidelines range
because “[s]entencing disparities are at their ebb when the Guidelines are followed.”
Boscarino, 437 F.3d at 638; see also United States v. Babul, 476 F.3d 498, 501‐02 (7th Cir. 2007)
(observing that the guidelines “are designed to ensure like treatment of like situations, and
thus to avoid unjustified disparities”); Duncan, 479 F.3d at 929 (observing that differences in
sentences that result from properly calculated guidelines ranges are not unwarranted
disparities).
At most, Little has a policy disagreement with the Commission’s judgment about
how best to mitigate the harshness of the prior guidelines that used an across‐the‐board
100:1 equivalency. But that policy decision is the Commission’s prerogative. “Entrusted
within its sphere to make policy judgments, the [Sentencing] Commission may abandon its
old methods in favor of what it has deemed a more desirable approach.’” Kimbrough, 128
S. Ct. at 572 (quoting Neal v. United States, 516 U.S. 284, 295 (1996) (some internal quotation
marks omitted). Although the district could have rejected the Commission’s judgment, it
was not obliged to do so. See id. at 575 (holding that a district court has the discretion to
sentence below the guidelines range out of disagreement with the equivalency ratio); United
States v. Bush, 523 F.3d 727, 730 (7th Cir. 2008) (observing that district court must calculate
the correct guidelines range, but may impose a sentence below the range if the equivalency
ratio leads to sentence that is too harsh).
The only relevant question, then, is whether Little’s sentence was reasonable. See
United States v. Campos, 541 F.3d 735, 750 (7th Cir. 2008). And it was. He received a within‐
guidelines sentence, which we presume to be reasonable, see Rita v. United States, 127 S. Ct.
2456, 2462 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Little has not
rebutted this presumption because he has not shown that the sentence is unreasonable in
light of 18 U.S.C. § 3553(a)(6), the only sentencing factor he raises. See United States v.
Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Deviation from the guidelines may occur when a
guidelines sentence would create an unwarranted sentencing disparity with other similar
offenders (i.e., those responsible for similar quantities of crack), see 18 U.S.C. § 3553(a)(6).
But Little does not point to any evidence that any other defendant actually received a
different sentence for similar conduct involving about ten grams of crack. Little faults the
district court for failing to say how its sentence avoids unwarranted sentencing disparities,
but it did not need to because Little provided it with no evidence of any disparity among
defendants responsible for similar quantities of crack. Compare Campos, 541 F.3d at 751.
AFFIRMED.