United States v. Wagner

BYE, Circuit Judge,

concurring.

As I noted in my concurrence in the judgment in United States v. Harris, 556 F.3d 887, 889 (8th Cir.2009) (Bye, J., concurring in the judgment), I disagree with the Starks court, and would hold a resentencing court has authority to reduce a defendant’s sentence to a term below the amended Guidelines range. As such, I believe the district court did not err by believing it had the authority to reduce Wagner’s sentence below the amended Guidelines range.

I nonetheless concur because Wagner’s sentence, which was within the amended Guidelines range, was not an abuse of discretion. A sentence within the advisory Guidelines range is presumptively reasonable on appeal. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (holding a court of appeals may apply presumption of reasonableness to sentence that reflects proper application of *683Guidelines). Wagner seeks to rebut this presumption of reasonableness primarily by arguing the two-level sentencing reduction in crack offenses under Amendment 706 fails to fully address the crack/powder cocaine sentencing disparity. Although arguably true, this Court has held “a district court does not abuse its discretion when it fails to consider the crack/powder sentencing disparity.” United States v. Saddler, 538 F.3d 879, 891 (8th Cir.2008); see also United States v. Roberson, 517 F.3d 990, 995 (8th Cir.2008) (“We do not believe, though, that [Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007),] means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity.”); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir.2008) (“Although Kimbrough empowers a district court to consider the disparity between guideline sentences for powder cocaine and crack, it does not require it to do so.”). In addition, the record demonstrates the district court considered the § 3553(a) factors and provided sufficient reasons to demonstrate it “has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” See Rita, 127 S.Ct. at 2468. The district court therefore did not abuse its discretion by resentencing Wagner to 151 months imprisonment.