NONPRECEDENTIAL DISPOSITION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 March 4, 2009
Decided March 19, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐3303
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 08‐CR‐11‐C‐01
CASSANDRA SMITH,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Cassandra Smith pleaded guilty to distributing crack. See 21 U.S.C. § 841(a)(1). At
sentencing she asked the district court to impose a below‐guidelines sentence in light of
Kimbrough v. United States, 128 S. Ct. 558, 574 (2007). The district court did not, however,
expressly mention Kimbrough in arriving at a sentence of 120 months in prison. On appeal
Smith asks that we vacate her sentence and order a remand so that the district judge can
discuss Kimbrough’s application on the record and resentence Smith if necessary. However,
the record shows that the district court adequately considered Smith’s argument and
rejected it. We therefore affirm Smith’s sentence.
No. 08‐3303 Page 2
Background
During the fall of 2007, a confidential informant made three controlled purchases of
crack from Smith. When law‐enforcement officers searched Smith’s apartment, they
discovered 11.95 grams of crack in plastic baggies, another 51.46 grams of crack in a beer
can with a removable lid, and some of the marked buy money used by the informant.
Smith was indicted on three counts of crack distribution, see 21 U.S.C. § 841(a)(1), as well as
one count of maintaining a drug house, see id. § 856(a)(1). She pleaded guilty to one of the
distribution counts in exchange for the government’s promise to drop the other charges.
Before sentencing in August 2008, Smith’s lawyer submitted a memorandum asking
the district court to reduce the applicable guidelines sentence in light of Kimbrough. In that
memorandum, the defense attorney observed that even after the Sentencing Commission
decreased the base offense level for crack offenses, “a gross disparity between the treatment
of crack cocaine versus powder cocaine for sentencing purposes remains.” In Smith’s case,
the counsel noted, that remaining disparity yielded a 70:1 ratio between crack and powder
cocaine offenses. Counsel therefore asked the court to use its discretion under § 3553(a) to
“reduce Smith’s base offense level to reflect the continuing disparity”; a ratio of 1:1, she
reasoned, would be fair and would generate a sentencing range of 63 to 78 months’
imprisonment. And, counsel concluded, a sentence at the bottom of that range would be
appropriate in light of Smith’s difficult childhood and lack of family support.
At sentencing defense counsel and Chief Judge Crabb briefly discussed the
memorandum:
THE COURT: [Counsel], anything you want to add to your
sentencing memorandum?
DEFENSE COUNSEL: Nothing, your honor. I will just rely on that
document.
The judge then proceeded to sentence Smith. First, the judge noted that the amount of crack
found in Smith’s apartment, 66.7 grams, triggered a base offense level of 30 under U.S.S.G. §
2D1.1(a)(3). With a three‐level reduction for acceptance of responsibility, see U.S.S.G. §
3E1.1, Smith’s total offense level of 27, combined with her criminal history category of V,
yielded an imprisonment range of 120 to 150 months. In conclusion, the judge discussed
Smith’s family circumstances and extensive criminal history, and observed:
No. 08‐3303 Page 3
Taking into consideration the nature of the offense along with your history
and characteristics, I believe that a term of imprisonment at the low end of the
advisory guidelines is reasonable and no greater than necessary to hold you
accountable, protect the community, provide you with an opportunity for
rehabilitative programs and achieve parity with the sentences of similarly‐
situated offenders.
After this consideration of the § 3553(a) factors, the court imposed a term at the low end of
the guidelines range. It did not expressly mention Kimbrough or discuss at greater length
the crack/cocaine disparity, nor did the defense counsel raise the issue again.
Analysis
On appeal, Smith argues only that the district court erred by failing to address the
question of whether the crack/cocaine disparity warranted a lower sentence. We have,
however, recently rejected a similar contention, albeit in a slightly different posture. In
United States v. Scott, No. 08‐2579, 2009 WL 322238 (7th Cir. Feb. 11, 2009), after the Supreme
Court vacated our earlier judgment and we remanded for resentencing, the defendant
argued that Chief Judge Crabb had neglected to consider his objection to a guidelines
sentence based on the crack/cocaine disparity. Id. at *2. But the district court’s brief
consideration of parity with similarly situated offenders, together with its discussion of
Scott’s criminal history and other § 3553(a) factors, were sufficient to convince the court that
the district court had adequately considered the Kimbrough argument. Id.
The district court’s reasoning in Smith’s case mirrors, almost word for word, the
analysis by the same trial judge in Scott. See id. In particular, in both cases the court
addressed the crack/cocaine disparity by considering the need to “achieve parity with
similarly‐situated offenders.” Scott, No. 08‐2579 at *2. And the district judge did more here
than in Scott: she not only addressed the issue of “parity,” but she also displayed that she
had read Smith’s sentencing memorandum (in which the Kimbrough issue was raised) by
explicitly discussing the other argument it contained, that Smith’s family circumstances
warranted a departure from the guidelines sentence. No more was required. See id.; see also
Gall v. United States, 128 S. Ct. 586, 596‐97 (2007) (holding that “after giving both parties an
opportunity to argue for whatever sentence they deem appropriate, the district judge
should then consider all of the § 3553(a) factors to determine whether they support the
sentence requested by a party” and must “adequately explain the chosen sentence to allow
for meaningful appellate review”). Because the district court adequately considered the
crack/cocaine disparity, we affirm Smith’s sentence.
AFFIRM.