In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3245
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERRENCE R. V ANCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09 CR 40070—J. Phil Gilbert, Judge.
A RGUED JUNE 7, 2011—D ECIDED S EPTEMBER 26, 2011
Before EASTERBROOK, Chief Judge, and BAUER and
W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. On October 6, 2009, a federal
grand jury returned an indictment charging the
defendant, Terrence Vance, with two counts of posses-
sion with intent to distribute crack cocaine. On March 16,
2010, Vance pleaded guilty to both counts of the indict-
ment without a plea agreement. A probation officer
recommended 262 to 327 months’ imprisonment based
2 No. 10-3245
on the Federal Sentencing Guidelines (the “Guidelines”),
which the district judge adopted without objection. Vance
was ultimately sentenced to 262 months’ imprisonment
and 8 years of supervised release, which he now ap-
peals. For the following reasons, we affirm.
I. BACKGROUND
A. Facts of the Offenses
On September 15, 2009, Vance was apprehended by
police during a traffic stop in Mt. Vernon, Illinois. After
exiting his vehicle during the stop, Vance attempted to
flee. The police used a Taser to subdue him and when
they reached him they discovered two bags containing
2.9 grams of crack cocaine. This formed the basis of
Count 1 of the indictment.
On November 7, 2008, pursuant to a validly executed
warrant, police searched the house in Mt. Vernon where
Vance was staying. The officers found 25.1 grams of crack
cocaine, a digital scale with white residue on it, and $521.00
in cash, which they attributed to Vance. This formed
the basis of Count 2 of the indictment.
B. PSR Findings
After Vance pleaded guilty to both counts, a probation
officer was assigned to the case. In her presentence report
(“PSR”), the probation officer found that Vance’s base
offense level was 26, but because he was a career
offender under § 4B1.1 of the Guidelines and because his
No. 10-3245 3
maximum possible sentence on the second count was life
imprisonment, his offense level elevated to 37. Even
without career offender status, she found that his prior
convictions, ranging from theft to additional drug
charges, made him a Criminal History Category VI of-
fender, producing the same base offense level of 37. This
figure was then reduced by 3 points for acceptance of
responsibility, producing a total offense level of 34 and
an advisory Guidelines range of 262 to 327 months for
the offenses to which he pleaded guilty.
C. Sentencing Hearing
At the sentencing hearing, neither party objected to any
of the statements or findings in the PSR, including the
calculation of the applicable Guidelines range. Instead,
Vance’s attorney asked the court for a below-Guidelines
sentence because of the disparity between sentences for
powder and crack cocaine offenses. The government
recommended a sentence at the low end of the Guide-
lines range. The court imposed 262 months and 8 years
of supervised release after reviewing the factors that
must be considered in determining an appropriate
sentence under 18 U.S.C. § 3553.
II. DISCUSSION
On appeal, a sentence within a correctly-applied Guide-
lines range is entitled to a presumption of reasonableness.
Rita v. United States, 551 U.S. 338, 347 (2007). All sentences,
whether “inside, just outside, or significantly outside
4 No. 10-3245
the Guidelines range,” are reviewed under the deferential
abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 40 (2007).
In this case, the defendant has conceded that the range
of 262 to 327 months’ imprisonment was computed cor-
rectly. We therefore apply the presumption of reasonable-
ness and consider whether (1) the defendant’s argu-
ments for a below-Guidelines sentence were given mean-
ingful consideration and (2) the factors that formed the
basis of the judge’s sentence were adequately communi-
cated at the hearing. If these requirements are satisfied,
we conclude that the sentence imposed was a rea-
sonable exercise of the sentencing judge’s broad discretion.
A. Mitigating Factors Raised By The Defendant
At Sentencing
1. Crack/Powder Disparity
With respect to his argument that the district judge
did not give adequate consideration to the disparity in
the Guidelines between crack and powder cocaine
offenses, Vance’s contention that “the court failed to
address [the crack/powder] argument 1 ” is incorrect and
misleading. At sentencing, the district judge squarely
responded to this argument, stating that “even taking
into account the differences between cocaine base and
cocaine, [those differences] would not affect the court[’s]
sentence in this matter.” This satisfies us that the judge
1
App. Br. at 11.
No. 10-3245 5
considered the argument, but found it unpersuasive.
He certainly did not ignore this factor.
2. Changes Implemented Under Fair Sentencing Act
Vance’s argument that the judge had a faulty under-
standing of the changes put in place under the Fair Sen-
tencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372
(2010), (hereafter the “Act”), is irrelevant.
The Act, which was signed into law on August 3, 2010,
reduced the disparity between sentences involving crack
and powder cocaine and “reset drug quantities required
to trigger mandatory sentences.” United States v. Bell,
624 F.3d 803, 814 (7th Cir. 2010). We recently held that
the Act “applies only to defendants who are sentenced
based on conduct that took place after August 3, 2010.”
United States v. Fisher, 635 F.3d 336, 338 (7th Cir. 2011). In
light of our holding in Fisher, Vance concedes that the
Act does not apply to him because the offenses
he committed occurred before the Act was signed into
law.2 However, it is worth noting that two Courts of
Appeal have recently disagreed with our holding in
Fisher, finding that the Act does apply to defendants such
as Vance, who committed offenses prior to August 3,
2010, but who were sentenced after that date.3 See United
States v. Douglas, ___ F.3d ____, 2011 WL 2120163 (1st Cir.
2
App. Br. at 12.
3
Vance was sentenced on September 17, 2010, more than
six weeks after the Act was signed into law.
6 No. 10-3245
May 31, 2011); United States v. Rojas, ___ F.3d ____, 2011
WL 2623579, at *1 (11th Cir. July 6, 2011). Unfortunately
for Vance, our holding in Fisher was affirmed
after much internal debate in United States v. Holcomb,
Nos. 11-1558, 11-1559, 11-1586, & 11-1758 (7th Cir.
August 24, 2011).
We decline to revisit our holdings in Fisher and
Holcomb. Even if the provisions of the Act were applied
to this defendant, the reduced penalties called for
under the Act are consistent with the sentence he re-
ceived. As Vance himself described it in his brief, under the
Act “[a] defendant who possesses less than 28 grams
of crack is subject to the lesser penalties in subsection
(b)(1)(C) [of the Controlled Substances Act] of up to 20
years in prison or up to 30 years for someone with a
prior controlled substance conviction 4 .” The two counts
to which Vance pleaded guilty involved 2.9 and 25.1
grams, respectively. He was also a prior controlled sub-
stance offender. So, even under the Act, Vance would
be eligible for up to 30 years’ imprisonment on each of
the two counts. The combined 262 months he received
without the supposed benefit of the Act’s provisions is
a full 8 years less than the maximum number for which
he would have been eligible on each count under the
new Act. Our circuit’s precedent is clear that the Act
does not apply to Vance; were it to apply, the sentence
imposed would still be reasonable by the Act’s terms.
4
App. Br. at 13 (referring to the application of § 2(a)(2) of
the Act to 21 U.S.C. § 841(b)(1)(B) and (C)).
No. 10-3245 7
B. The Judge’s Reasoning
Since neither of the defendant’s arguments for a lesser
sentence compel us to reverse the presumptively reason-
able sentence imposed, the only issue left is whether
the judge adequately articulated the 18 U.S.C. § 3553
factors which he found most significant in deciding
upon the sentence of 262 months’ imprisonment.
Section 3553 factors range from “the nature and circum-
stances of the offense and the history and characteristics
of the defendant” to “the need for the sentence imposed
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense.” See 18 U.S.C. § 3553(a).
After reviewing a transcript of the sentencing hearing,
it is clear that the judge discussed the relevant factors in
sufficient detail; unfortunately for the defendant, the
analysis was not favorable to him. At various points
during the sentencing hearing, the judge referred
to Vance’s extensive criminal history and to prison time
he had previously served for other convictions. The
transcript indicates that the judge took Vance’s status as
a repeat offender very seriously. The fact that Vance
was incarcerated more than once before and continued
to re-offend was a factor that weighed strongly against
him in the judge’s calculation of an appropriate sen-
tence. In the judge’s view, the defendant’s experience
of serving time and re-offending demonstrated a pattern of
disregard for the law that needed to be addressed. The
decision not to sentence the defendant below the Guide-
lines reflected these specific concerns.
8 No. 10-3245
In closing, we cannot fault the district judge for
denying a break to a career offender, particularly when
the sentence imposed fell within the agreed-upon Guide-
lines range. While every judge is entitled to sentence at
variance with the Guidelines, no judge is required to do
so. United States v. Corner, 598 F.3d 411, 416 (7th Cir.
2010). As we held in United States v. Scott, 555 F.3d 605, 610
(7th Cir. 2009), “If a district court may deviate from
the Guidelines based on its disagreement with the Sen-
tencing Commission’s policy, it is equally within its
authority to adhere to the Guidelines because it concurs
with the policy judgment the Guidelines reflect.”
We are satisfied that the district judge adequately
responded to the defendant’s arguments for a lesser
sentence and that he articulated the factors that formed
the basis of the sentence with sufficient particularity.
Accordingly, his decision to sentence the defendant at
the low end of the Guidelines range was not an abuse
of discretion.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the defendant’s
conviction and sentence.
No. 10-3245 9
W ILLIAMS, Circuit judge, dissenting. Because I am not
assured that the judge adequately responded to Vance’s
arguments concerning the effect that his conviction for a
crime of crack rather than powder cocaine had on his
sentence, I think a limited remand is the proper course
of action. I therefore dissent.
The full context of the judge’s remarks at the sentencing
hearing is important. The judge first asked the parties
whether there were any objections to the PSR and the
probation officer’s guidelines range calculation, and the
parties had no objections. The judge then stated:
And the Court would note that even with the reduc-
tion in the cocaine base, well, the new cocaine base
reduction in terms of the guidelines really would
have no effect in this case because of the career of-
fender status. And so the Court, even taking into
account the differences between cocaine base and
cocaine, would not affect the court[’s] sentence in
this matter.
These remarks evidence some confusion. The first
sentence and its reference to the “new” cocaine base
reduction suggest that the remarks refer to the Fair Sen-
tencing Act, and the use of “so” in the second sentence
suggests that it is a comment about the FSA as well. But
if the FSA applied to Vance, his guidelines range would
change because the new statutory maximum would be
30 years, see 21 U.S.C. § 841(b)(1)(C), which would affect
the computation of the guidelines range under the
career offender guideline, see U.S.S.G. § 4B1.1. If these
remarks were about the FSA, then, they were incorrect
10 No. 10-3245
as to the effect retroactive application of the FSA would
have had on Vance’s guidelines range.
More importantly, they did not respond to Vance’s
argument that he should receive a lower sentence in
light of the crack/powder disparity in the guidelines.
This argument is wholly unrelated to the FSA. Our deci-
sion in United States v. Corner makes clear that a judge
can take the crack/powder disparity in the career
offender guideline into account during sentencing. 598
F.3d 411, 416 (7th Cir. 2010) (en banc). The majority takes
the position that the statement “taking into account the
differences between cocaine base and cocaine, would not
affect the court[’s] sentence in this matter” means that the
judge justifiably rejected Vance’s disparity argument.
I disagree. First, Vance did not make the disparity argu-
ment until after the district court had made the remarks
to which the majority points. See Sent. Tr. pp. 4, 6. And
the argument had not been made in any written sub-
missions, so the judge’s comments could not have
been responding to any arguments made there either.
Significantly, even if the remarks were referring to the
crack/powder disparity in the pre-FSA guidelines, they
are still incorrect, as it is not true that the disparity
would have “no effect” on Vance’s sentence. Had Vance’s
offense involved powder cocaine, rather than crack co-
caine, his pre-FSA guideline range would have
been significantly lower. The applicable powder
cocaine guideline range was 188 to 235 months, while the
presence of crack cocaine yielded Vance’s 262 to 327
month range.
No. 10-3245 11
We have issued limited remands on many occasions
when we have been unsure whether the judge ade-
quately understood his discretion at sentencing. See, e.g.,
United States v. Simms, 626 F.3d 966, 972 (7th Cir. 2010);
United States v. Bell, 585 F.3d 1045, 1054 (7th Cir.
2009). Vance’s argument that the crack/powder disparity
should be taken into account was not frivolous. See
Corner, 598 F.3d at 416. Yet the transcript does not
provide assurance that the judge responded to it with the
understanding that the sentences for the two types of
cocaine would be different. Cf. United States v. Kilgore, 591
F.3d 890, 893 (7th Cir. 2010) (“the district court . . . must
explain its decision and address non-frivolous sen-
tencing arguments”).
The government conceded as much during oral
argument when it stated that a limited remand would be
a simple way to address concerns about whether the
district court took the disparity into account. I agree with
the government and believe that the proper course of
action is a limited remand to ask the judge whether he
would have sentenced Vance any differently in light of the
disparity in crack and powder career offender guideline
ranges in this case and the discretion judges have to
consider them under Corner. Therefore, I respectfully
dissent.
9-26-11