United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2488
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United States of America, *
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Plaintiff - Appellee, *
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v. *
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Tracy Brunken, *
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Defendant - Appellant. *
___________ Appeals from the United States
District Court for the
No. 08-2783 Northern District of Iowa.
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United States of America, *
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Plaintiff - Appellee, *
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v. *
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Amy Whitlock, *
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Defendant - Appellant. *
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Submitted: February 10, 2009
Filed: October 5, 2009
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Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
Tracy Brunken and Amy Whitlock were indicted for conspiring to distribute at
least five hundred grams of methamphetamine mixture and fifty grams of pure
methamphetamine and distribution of a detectable amount of methamphetamine in
violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A) and (C), and 846). Brunken was
convicted of both counts after a two day jury trial. The district court1 sentenced
Brunken to 152 months in prison, granting a 36-month variance from the advisory
guidelines range because his mother’s death contributed to his methamphetamine use.
Whitlock pleaded guilty, cooperated, and testified against Brunken at his trial. The
Probation Officer determined that her advisory guidelines sentencing range was 151-
188 months in prison (total offense level 31; criminal history category IV). But
Whitlock was subject to a mandatory minimum sentence of 240 months because of a
previous state court drug conviction. The government filed substantial assistance
motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The district court granted
the motions, concluded that Whitlock’s assistance was substantial but not
extraordinary, and reduced her sentence by 37.5 percent to 150 months, almost twice
the downward departure recommended by the government. Brunken and Whitlock
appeal their sentences. We consolidated the appeals and now affirm.
I. Whitlock
Whitlock requested a fifty percent reduction from her mandatory minimum
sentence. At sentencing, which took place after the Supreme Court’s decision in Gall
v. United States, 128 S. Ct. 586 (2007), the district court found that Whitlock’s
assistance was not extraordinary, asserted that it was therefore “constrained by Eighth
Circuit precedent not to go to 50 percent,” and commented:
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa, presided in both cases.
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when somebody does everything that they could do and they are
relatively truthful and complete, and reliable, and they are timely, I’d
like to be able to give 50 percent, because that’s actually the national
average. . . . But I have made that argument before, it’s been rejected by
the United States Court of Appeals. . . . I hope you get my decision
overturned on appeal . . . and I have an opportunity to give a greater
reduction in this case.
On appeal, Whitlock does not challenge the district court’s conclusion that her
assistance was not extraordinary. Rather, she argues that Gall invalidated our
extraordinary circumstances standard. The court en banc recently held (i) that
departures under § 3553(e) may only be based upon the quality and quantity of a
defendant’s assistance to law enforcement, and (ii) that the highly deferential abuse-
of-discretion standard we apply in reviewing a district court’s assessment of § 3553(a)
factors under Gall also applies to our review of the court’s substantial assistance
determinations in ruling on a government motion under § 3553(e). Burns v. United
States, No. 04-2901, 2009 WL 2525585, at *6-7 (8th Cir. 2009) (en banc).
In Gall the Supreme Court held that “courts of appeals must review all
sentences -- whether inside, just outside, or significantly outside the Guidelines range
-- under a deferential abuse-of-discretion standard.” 128 S. Ct. at 591. The Court held
that requiring “proportional” justifications for variances from the advisory guideline
range was inconsistent with United States v. Booker, 543 U.S. 220 (2005). But the
Court confirmed “that a major departure should be supported by a more significant
justification than a minor one.” 128 S. Ct. at 597, quoted in Burns, slip op. at 14 n.5.
That principle was properly applied in this case -- the district court carefully weighed
the quality and quantity of Whitlock’s assistance and concluded that a substantial
reduction was warranted, a reduction much greater than the government’s assessment
of Whitlock’s assistance caused it to recommend, but somewhat less than Whitlock
requested. According the district court’s determination the deference required by Gall
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and Burns, we conclude that the court did not abuse its substantial discretion.
Whitlock’s sentence is not substantively unreasonable. It is therefore affirmed.
Unlike the dissent, we will not blindly follow the broadly-worded unpublished
opinion in United States v. Bates, No. 08-3414, 2009 WL 2707559 (8th Cir. Aug. 31,
2009), which is not controlling precedent. See 8th Cir. Rule 28A(i). The sentencing
record in Bates is not before us. Here, the district court acknowledged that Whitlock’s
continuing unlawful use of methamphetamine limited the types of assistance she was
able to provide. In other words, she did not “do everything she could do.” The court
then gave her a lesser departure than she requested, properly applying the above-
quoted principle in Gall. Prior to this sentencing, the court had been reversed for
giving § 3553(e) departures greater than fifty percent. But the court knew that a fifty
percent departure (six levels), if appealed by the government, might be criticized by
this court but would almost certainly be affirmed. See United States v. Jensen, 493
F.3d 997, 1001 (8th Cir. 2007), and cases cited. So the court made the discretionary
decision to impose an appropriate sentence and then told Whitlock and her attorney,
in effect, “The Eighth Circuit devil made me do it.” We decline to reverse a
reasonable sentence based on that false statement.
II. Brunken
The district court determined that Brunken’s advisory guidelines range is 188
to 235 months in prison and granted a 36-month downward variance. On appeal,
Brunken argues the court committed procedural error under Gall by failing to
adequately consider the sentences imposed on his co-defendants, as 18 U.S.C.
§ 3553(a)(6) requires. Appellate review of a district court’s sentence under Booker
must begin by determining whether the court committed significant procedural error.
One type of procedural error is “failing to consider the § 3553(a) factors.” Gall, 128
S. Ct. at 597 (2007).
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In this case, Brunken asserts that his co-defendants were higher in the
conspiracy’s chain of command yet received lighter or comparable sentences. The
district court expressly considered this issue and concluded that Brunken was not
similarly situated to his co-defendants because they pleaded guilty, received
substantial assistance reductions, or had lower criminal history scores. For these
reasons, the court did not grant a variance on that basis. As the court considered this
§ 3553(a) factor, there was no procedural error. Brunken simply disagrees with the
court’s assessment, yet he does not argue on appeal that the resulting sentence is
substantively unreasonable. Nor is this a basis for concluding that the sentence is
unreasonable. See United States v. Watson, 480 F.3d 1175, 1178 (8th Cir.), cert.
denied, 128 S. Ct. 305 (2007) (disparity resulting from “legitimate distinctions”
between co-defendants not unreasonable); see also United States v. Lazarski, 560 F.3d
731, 733 (8th Cir. 2009) (when a sentence is below the guidelines range, “it is nearly
inconceivable that the court abused its discretion in not varying downward still
further”). Accordingly, Brunken’s sentence must be affirmed.
The judgments of the district court are affirmed.
MELLOY, Circuit Judge, concurring in part, and dissenting in part.
I am pleased to concur in section II dealing with the sentence imposed upon
Tracy Brunken. However, I respectfully dissent as to section I.
Our court recently decided United States v. Bates, No. 08-3414, 2009 WL
2707559 (8th Cir. Aug. 31, 2009) (unpublished). The sentencing judge was the same
in both Bates and this case. In Bates, our court remanded for resentencing because of
comments made by the district court, in which the district court judge indicated that
he did not believe he had the authority to grant a 50 percent reduction and stated:
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I don’t believe the substantial assistance in this case was extraordinary,
and that’s why I didn’t give a 50 percent reduction. However, if the
United States Court of Appeals for the Eighth Circuit believes that [Gall
v. United States, 128 S. Ct. 586 (2007),] alters the requirement that in
order to have a 50 percent reduction it has to be extraordinary, based on
the defendant’s substantial assistance and my evaluation of the 5K1.1
factors, I would give a 50 percent reduction in this case if I wasn’t
required to follow existing Eighth Circuit law.
Id. at *1.
In the present Whitlock case the district judge made similar comments when he
stated at sentencing: “I feel constrained by Eighth Circuit precedent not to go to 50
percent . . . . My understanding of Eighth Circuit law is that substantial assistance has
to be extraordinary.” The district court then went on to explain that he did not feel the
assistance in the Whitlock case rose to the level of extraordinary. He stated that he
hoped the Gall case2 would change the requirement that the assistance be
extraordinary in order to allow for a 50 percent reduction. He concluded by stating:
“I hope you get my decision overturned on appeal and it comes back for resentencing,
and I have an opportunity to give a greater reduction in this case.”
While the comments made by the same sentencing judge in Bates and this case
are not identical, I feel that they are so substantially similar that this case is
indistinguishable from Bates. Accordingly, I feel we should follow the precedent
established by the Bates court and remand Whitlock for resentencing.
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2
Gall v. United States, 552 U.S. 38 (2007).
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