In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2579
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L EAVIE T. S COTT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:05-cr-00116-bbc-1—Barbara B. Crabb, Chief Judge.
S UBMITTED O CTOBER 6, 2008—D ECIDED F EBRUARY 11, 2009
Before C OFFEY, R IPPLE and S YKES, Circuit Judges.
R IPPLE, Circuit Judge. Leavie T. Scott pleaded guilty to
possession with intent to distribute cocaine and cocaine
base, and he was sentenced to 151 months’ imprisonment.
We affirmed this sentence on appeal, see United States v.
Scott, 192 Fed. Appx. 552 (7th Cir. 2006); however, the
Supreme Court vacated our judgment and remanded the
case in light of Kimbrough v. United States, 128 S. Ct. 558
(2007). We, in turn, remanded to the district court for
resentencing. See United States v. Scott, 274 Fed. Appx. 488
2 No. 08-2579
(7th Cir. 2008). On remand, the district court imposed a
sentence of 120 months. Mr. Scott again appeals, and we
now affirm.
I
BACKGROUND
On August 19, 2005, Mr. Scott pleaded guilty to one
count of possessing with intent to distribute more than
five grams of crack cocaine, in violation of 21 U.S.C. § 841.
With respect to his sentence, Mr. Scott argued that the
guideline sentence for crack cocaine was unduly harsh; he
asked the district court to impose a sentence calculated
according to the guideline for powder, as opposed to crack,
cocaine. The district court declined Mr. Scott’s request,
calculated Mr. Scott’s sentence using the guideline for
crack cocaine and imposed a sentence of 151 months.
On appeal, Mr. Scott again challenged on several
grounds the imposition of the 100:1 ratio of powder to
crack cocaine set forth in the Sentencing Guidelines. We
rejected his arguments and affirmed the district court’s
sentence.
On petition for writ of certiorari, the Supreme Court of
the United States vacated our judgment in light of
Kimbrough, 128 S. Ct. 558, and remanded the case to us.
We then returned the case to the district court for
resentencing.
In the district court, Mr. Scott maintained that, al-
though the guideline ranges for crack-cocaine sentences
No. 08-2579 3
had been reduced, there was no rational basis for distin-
guishing crack cocaine from powder cocaine. Conse-
quently, he submitted, the guideline range for his sen-
tence for possession of crack cocaine should correspond
to the guideline range for an equivalent amount of
powder cocaine. He also urged the court, in reaching
its sentencing determination, to consider his extensive
efforts at rehabilitation during his incarceration. For its
part, the Government believed that a sentence within the
revised guideline range adequately would reflect the
seriousness of Mr. Scott’s crimes, his criminal history
as well as his efforts to make productive use of his time
in prison.
After receiving the parties’ submissions and listening
to their arguments, the district court resentenced Mr. Scott
to 120 months’ imprisonment. It noted that, in imposing
sentence, the court was “taking into consideration the
advisory sentencing guidelines and the statutory
purposes of sentencing.” R.58 at 11. It observed that,
applying the revised guidelines for crack cocaine viola-
tions, Mr. Scott’s initial offense level was 30, which, with
a three-level adjustment for acceptance of responsibility,
was lowered to 27. Considering Mr. Scott’s criminal
history category, this calculation yielded an advisory
range of 130 to 162 months. The court went on to note
that Mr. Scott had committed the crime for which he
was indicted after making five previous sales of cocaine
base to a confidential informant and while wearing a
monitoring device required as a condition of probation.
Additionally, Mr. Scott had an “extensive” criminal
history dating back to the age of sixteen. Id. at 12. The
4 No. 08-2579
court acknowledged that Mr. Scott had used his last
confinement to “earn[] [his] GED and complete[] the
40-hour drug program,” but remarked that Mr. Scott
also had been disciplined on several occasions. Id. In
sum, the court stated:
I believe a sentence slightly below the low end of the
guidelines or 120 months is sufficient and no greater
than necessary to hold you accountable for your
serious criminal conduct, to promote respect for the
law, achieve parity with the sentences of similarly-
situated offenders and protect the community from
further criminality on your part.
Id. at 13.
Mr. Scott timely appealed.
II
DISCUSSION
“We review sentences for their reasonableness, United
States v. Booker, 543 U.S. 220, 260-63 (2005), under an abuse-
of-discretion standard, Gall v. United States, 128 S. Ct. 586,
597 (2007).” United States v. Omole, 523 F.3d 691, 697 (7th
Cir. 2008) (parallel citations omitted). Our review has
two components. First, we evaluate whether the district
court committed
any significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the [section] 3553(a) factors, selecting a
No. 08-2579 5
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines
range.” Gall v. United States, 128 S. Ct. 586, 597 (2007);
United States v. Gordon, 513 F.3d 659, 666 (7th Cir. 2008).
United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008)
(parallel citations omitted). “If we determine the district
court’s sentencing decision to be procedurally sound,” we
turn to the second step in the analysis: “consider[ing]
the substantive reasonableness of the sentence.” Id. As
noted above, we review the reasonableness of the sen-
tence for an abuse of discretion.
Therefore, our “task on reasonableness review is
limited.” United States v. Wachowiak, 496 F.3d 744, 754
(7th Cir. 2007). We must consider the sentencing
court’s explanation of its reasons for imposing a
particular sentence. That explanation need not be
exhaustive but it must be adequate “to allow for
meaningful appellate review and to promote the
perception of fair sentencing.” Omole, 523 F.3d at 697,
698 (quoting Gall, 128 S. Ct. at 597). If the sentence
imposed is outside the guidelines range, the district
court must provide a justification that explains and
supports the magnitude of the variance. Id.; see
also Gall, 128 S. Ct. at 595.
Id. Furthermore, in undertaking our substantive review,
we are cognizant of the fact that the “ ‘contours of sub-
stantive reasonableness review are still emerging,’ [and]
we cannot target a fixed point at which a sentence turns
from reasonable to unreasonable, or vice versa.” Omole, 523
F.3d at 698 (quoting Wachowiak, 496 F.3d at 750). “The
6 No. 08-2579
concept of substantive reasonableness contemplates a
range, not a point.” Id. (internal quotation marks and
citations omitted). With these standards in mind, we
turn to Mr. Scott’s contentions.
Before this court, Mr. Scott maintains that the district
court’s resentencing suffers from both procedural and
substantive infirmities. The approach taken by the
district court was procedurally correct and substantively
well within the court’s discretion. Turning first to
Mr. Scott’s procedural argument, Mr. Scott claims that
the district court’s explanation is “void of any indication
of what the sentencing court thought of his objections” to
the harsher penalties for crack cocaine. Appellant’s Br. 18.
We cannot accept this contention. Our review of the
record convinces us that the district court considered
Mr. Scott’s claim in arriving at his sentence. Mr. Scott’s
argument focused on the disparity between sentences
for those who commit offenses involving crack cocaine and
those who commit offenses involving powder cocaine. See
id. at 16. In imposing a sentence of 120 months—ten
months below the properly calculated guideline range—the
court specifically noted that it was attempting to “achieve
parity with the sentences of similarly-situated offenders.”
R.58 at 13. However, the district court also was per-
suaded that “a significant term of imprisonment [wa]s
still warranted” in light of other Section 3553(a)1
1
18 U.S.C. § 3553(a) provides:
(a) Factors to be considered in imposing a sentence.—The
court shall impose a sentence sufficient, but not greater
(continued...)
No. 08-2579 7
1
(...continued)
than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. The court, in determining
the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other correc-
tional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range estab-
lished for—
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines—
(i) issued by the Sentencing Commission pursuant to
section 994(a)(1) of title 28, United States Code, subject
to any amendments made to such guidelines by act
of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Com-
mission into amendments issued under section 994(p)
of title 28); and
(continued...)
8 No. 08-2579
factors. Id. The court specifically mentioned Mr. Scott’s
extensive criminal history, the fact that lesser sentences
and court-monitoring had not had a deterrent effect on
Mr. Scott’s criminal activity, and Mr. Scott’s disciplinary
1
(...continued)
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements
issued by the Sentencing Commission pursuant to
section 994(a)(3) of title 28, United States Code, taking
into account any amendments made to such guide-
lines or policy statements by act of Congress (regard-
less of whether such amendments have yet to be incor-
porated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28, United States Code, subject
to any amendments made to such policy statement by
act of Congress (regardless of whether such amend-
ments have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
No. 08-2579 9
record while incarcerated. See id. at 12-13. Given this
record, we cannot conclude that the district court commit-
ted a procedural error in sentencing Mr. Scott. It did not
fail to consider the Section 3553(a) factors or fail “to
adequately explain the chosen sentence.” Gall, 128 S. Ct. at
597.
Mr. Scott also believes that his sentence is substantively
unreasonable because it exceeds the sentence he would
have received had his crime involved powder cocaine.2 We
cannot accept this argument.
In reviewing the substantive reasonableness of a
sentence that falls outside the advisory guidelines
range, we must give due deference to the district
court’s determination that the section 3553(a) factors,
taken as a whole, justified the extent of the variance.
Gall, 128 S. Ct. at 597; [United States v.] Gordon, 513 F.3d
[659,] 666 [(7th Cir. 2008)]. The fact that we “might
reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the
district court.” Gall, 128 S. Ct. at 597. Our review must
take into account that a “sentencing judge is in a
superior position to find facts and judge their import
under [section] 3553(a) in the individual case. The
2
According to Mr. Scott, if his crime had involved powder
cocaine, his base offense level would have been 18. Adjusting
for acceptance of responsibility, and considering his criminal
history category, his guideline range would have been 41-50
months. However, he still would have been subject to a manda-
tory minimum sentence of 60 months.
10 No. 08-2579
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” Id. (quota-
tion omitted). Because the district court has greater
familiarity with the case and the individual defendant
and therefore an institutional advantage over an
appellate court in making sentencing determinations,
we must defer, absent an abuse of discretion, to its
ruling. Id.; Gordon, 513 F.3d at 666.
Carter, 538 F.3d at 790.
The district court was under no obligation to accept Mr.
Scott’s proposition that sentences for crack cocaine and
powder cocaine should be comparable. There are special
dangers posed to society when cocaine is marketed in a
form that makes it more readily available to a wider and
more vulnerable part of our population. While the revised
guidelines have adjusted the degree of difference, for
sentencing purposes, between powder cocaine and crack
cocaine, they have not abolished that difference. If a district
court may deviate from the Guidelines based on its dis-
agreement with the Sentencing Commission’s policy, it is
equally within its authority to adhere to the Guidelines
because it concurs with the policy judgment the Guidelines
reflect. Cf. Spears v. United States, ___ S. Ct. ___, 2009 WL
129044, at *2 (2009) (interpreting Kimbrough to allow a
district court to vary from the crack guidelines based on a
policy disagreement with them).
In imposing sentence on Mr. Scott, the district court
conducted an individualized assessment of Mr. Scott’s
circumstances and carefully balanced all of the relevant
No. 08-2579 11
factors: the need for parity with other offenders, the need
for deterrence, Mr. Scott’s record in prison as well as his
efforts at rehabilitation. Although mitigating factors
warranted a below-guidelines sentence, the district court
believed that other factors still required the imposition of
a “significant” term of imprisonment. The district court’s
choice of sentence was “ ‘logical and consistent with the
§ 3553(a) factors,’ and . . . the sentence imposed falls
within the broad range of reasonable sentences in the
circumstances of the case.” United States v. Wachowiak, 496
F.3d 744, 754 (7th Cir. 2007) (quoting United States v.
Williams, 425 F.3d 478, 481 (7th Cir. 2005)).
Conclusion
For the reasons set forth above, we affirm the judgment
of the district court.
A FFIRMED
2-11-09