United States v. Pho

United States Court of Appeals
For the First Circuit

No. 05-2455

UNITED STATES OF AMERICA,

Appellant,

v.

SAMBATH PHO,

Defendant, Appellee.

No. 05-2461

UNITED STATES OF AMERICA,

Appellant,

v.

SHAWN LEWIS,

Defendant, Appellee.

__________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Lipez and Howard, Circuit Judges.

Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, Lee Vilker and
Peter F. Neronha, Assistant United States Attorneys, were on brief,
for appellant.
 Edward C. Roy, Jr., Assistant Federal Public Defender, for
appellee Pho.
Kevin J. Fitzgerald, Assistant Federal Public Defender, for
appellee Lewis.

January 5, 2006
 SELYA, Circuit Judge. In these consolidated appeals, we

are called upon to answer a vexing question of first impression at

the appellate level: May a federal district court, consistent with

the teachings of United States v. Booker, 125 S. Ct. 738 (2005),

impose a sentence outside the advisory guideline sentencing range

based solely on its categorical rejection of the guidelines'

disparate treatment of offenses involving crack cocaine, on the one

hand, and powdered cocaine, on the other hand? The court below

believed that it could and sentenced the defendants in accordance

with that belief. After careful consideration, we conclude that

the district court's approach was incorrect as a matter of law.

Consequently, we vacate the defendants' sentences and remand for

resentencing.

I. BACKGROUND

We start by limning the history of the disparate

treatment of crack and powdered cocaine embedded in the federal

sentencing guidelines (commonly referred to as the 100:1 ratio).

We move from there to a brief glimpse of how that differential

fared in our pre-Booker jurisprudence.

A. The Crack-to-Powder Disparity.

The sentencing differential for crack and powdered

cocaine offenses had its genesis in the Anti-Drug Abuse Act of

1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified in

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pertinent part at 21 U.S.C. § 841) (the Act).1 That legislation

created two mandatory sentencing ranges for drug offenses. See id.

§ 1002 (codified at 21 U.S.C. § 841(b)(1)). The lower bracket

spanned periods of imprisonment ranging from a mandatory minimum of

five years to a maximum of forty years; the higher bracket spanned

periods of imprisonment ranging from a mandatory minimum of ten

years to a maximum of life. See id. Congress prescribed the

threshold quantities of both crack and powdered cocaine needed to

bring a particular offense within either bracket. See id. Despite

the chemical identity of crack and powdered cocaine, Congress set

widely disparate threshold quantities for the two drugs, requiring

one hundred times more powdered cocaine than crack cocaine to

trigger inclusion in a particular range. See id. (setting the

threshold quantities for the lower range at five hundred grams of

powdered cocaine and five grams of cocaine base and the threshold

quantities for the higher range at five kilograms and fifty grams,

respectively). Thus, for sentencing purposes, Congress treated one

unit of crack on par with one hundred units of powder.2

1
The Act speaks of "cocaine base," not crack. See 21 U.S.C.
§§ 841(b)(1)(A)(iii), 841(b)(1)(B)(iii). The guidelines, however,
define cocaine base to mean crack cocaine. See USSG §2D1.1(c),
n.D. Because virtually all trafficking in cocaine base involves
crack cocaine, see United States v. Brisbane, 367 F.3d 910, 912
(D.C. Cir. 2004), we use the terms interchangeably.
2
Although the 100:1 ratio is sometimes used to describe a
supposed disparity in the length of sentences, that description is
inaccurate. The 100:1 ratio refers to the relative quantities of
each drug required to trigger the Act's mandatory sentencing

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 Congress grounded this differential on its determination

that crack cocaine and powdered cocaine are not fair congeners and

that, all other things being equal, offenses involving the former

pose a more serious societal danger than offenses involving the

latter. See U.S. Sentencing Comm'n, Special Report to Congress:

Cocaine and Federal Sentencing Policy 117-18 (1995) (1995 Report).

In particular, Congress found that crack cocaine was more likely to

(i) induce addiction; (ii) correlate with the incidence of other

serious crimes; (iii) implicate especially vulnerable members of

society; (iv) cause deleterious physiological effects; and (v)

attract youthful users. Id. at 118.

Shortly after passage of the Act, the Sentencing

Commission issued the initial compendium of federal sentencing

guidelines. The Commission built the base offense levels for

crimes involving crack and powdered cocaine around the threshold

quantities set by Congress. This architectural decision comported

with Congress's discernible intent. See 28 U.S.C. § 994(i)(5)

(requiring the Commission to "specify a sentence to a substantial

term of imprisonment" for offenders convicted of "trafficking in a

substantial quantity of a controlled substance"). Consistent with

its congressionally imposed obligation to "reduc[e] unwarranted

ranges. The resulting disparity in sentence length is much
smaller. See U.S. Dep't of Justice, Federal Cocaine Offenses: An
Analysis of Crack and Powder Penalties 19 (2005) (reporting that
the average sentence for crack offenses is 1.6 times longer than
the average sentence for comparable powdered cocaine offenses).

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sentence disparities," id. § 994(f), the Commission also fixed the

guideline sentences for offenses involving non-threshold quantities

of crack and powdered cocaine in accordance with the 100:1 ratio.

See generally USSG §2D1.1, cmt. (backg'd.) (concluding that "a

logical sentencing structure for drug offenses" requires

coordination with mandatory minimum sentences). Thus, while

Congress designed the 100:1 ratio to operate at the minimum and

maximum poles of the mandatory statutory sentencing ranges, it was

the Commission that incorporated the ratio root and branch into its

calculation of every cocaine offender's guideline sentencing range

(GSR).

Over time, Congress began to have second thoughts about

the wisdom of this dichotomy. As part of the Mandatory Minimum

Reform Act of 1994, Congress enacted a safety valve provision,

which provided a vehicle for lowering mandatory minimum sentences

in a narrow subset of drug cases. See 18 U.S.C. § 3553(f); see

also United States v. Matos, 328 F.3d 34, 38-42 (1st Cir. 2003)

(describing the operation of the safety valve). That same year,

Congress directed the Sentencing Commission to study the crack-to-

powder ratio and to submit recommendations anent its retention or

modification. See Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322, § 280006, 108 Stat. 1796, 2097 (1994).

The 1995 Report embodied the Commission's response to

this directive. Based on its review of the available data, it

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concluded that "it [could] not recommend a ratio differential as

great as the current 100-to-1 quantity ratio," 1995 Report at 196,

and suggested that the ratio "be re-examined and revised," id. at

197. At the same time, however, the Commission determined that

empirical data supported Congress's core finding that "crack

cocaine poses greater harms to society than does powder cocaine,"

id. at 195, and that, therefore, "important distinctions between

the two may warrant higher penalties for crack," id. at xii. The

Commission advised Congress that it would present more

comprehensive recommendations at a future date. Id. at 198-200.

Notwithstanding its acknowledgment that higher penalties

for crack offenses were justified, the Commission subsequently

proposed guideline amendments designed to eliminate entirely the

sentencing differential between crack and powdered cocaine. See

Notice of Submission to Congress of Amendments to the Sentencing

Guidelines, 60 Fed. Reg. 25,074, 25,075-25,076 (May 10, 1995). To

accomplish this objective, the Commission called for reducing the

base offense levels for crack offenses to the base offense levels

for offenses involving equivalent quantities of powdered cocaine.

Congress held hearings on the Commission's

recommendation. See 28 U.S.C. § 994(p) (providing that proposed

guideline amendments must be submitted to Congress, which may

"modif[y] or disapprove[]" them). It found that "the evidence

overwhelmingly demonstrates significant distinctions between crack

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and powder cocaine." H.R. Rep. No. 104-272, at 3 (1995), reprinted

in 1995 U.S.C.C.A.N. 335, 337. Congress also determined that a

change in the guideline sentencing structure unaccompanied by a

corresponding change in statutory mandatory minimums would result

in "gross sentencing disparities" between offenses involving drug

quantities around the threshold levels. Id. at 4. Based on these

considerations, Congress rejected the Commission's proposed

guideline amendments. See Pub. L. No. 104-38, § 1, 109 Stat. 334,

334 (1995).

Two years later, the Commission issued a follow-up

report. See U.S. Sentencing Comm'n, Special Report to Congress:

Cocaine and Federal Sentencing Policy (1997) (1997 Report). In

that document, the Commission reiterated both its position that the

100:1 ratio was excessive, id. at 2, and its conclusion that

"federal sentencing policy must reflect the greater dangers

associated with crack," id. at 4. The Commission recommended that

the 100:1 ratio be reduced to 5:1 by increasing the threshold

quantities for offenses involving crack cocaine and decreasing the

threshold quantities for offenses involving powdered cocaine. Id.

at 2, 5, 9. Even though this report prompted the introduction of

several bills aimed at reducing or eliminating the crack-to-powder

disparity, Congress took no action.

In late 2001, members of the Senate Judiciary Committee

invited the Sentencing Commission to update the Commission's views

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vis-à-vis the 100:1 ratio. The following year, the Commission

issued a third report. See U.S. Sentencing Comm'n, Report to the

Congress: Cocaine and Federal Sentencing Policy (2002) (2002)

Report). In it, the Commission again advocated narrowing the gap

that separated crack cocaine offenses from powdered cocaine

offenses because (i) more recent data suggested that the penalties

were disproportionate to the harms associated with the two drugs;

(ii) the dangers posed by crack could be satisfactorily addressed

through sentencing enhancements that would apply neutrally to all

drug offenses; and (iii) the severe penalties for crack offenses

seemed to fall mainly on low-level criminals and African Americans.

Id. at v-viii. The Commission hastened to add, however, that

crucial differences existed "in the intrinsic . . . and other

harms" attributable to the two forms of cocaine and acknowledged

that these differences justified stiffer penalties for crack

offenses. Id. at 92. Taking into account these competing

centrifugal and centripetal forces, the Commission endorsed a

reduction of the 100:1 ratio to 20:1. Id. at viii. It did not,

however, propose any amendments to the sentencing guidelines.

Congress subsequently deliberated on the substance of the 2002

Report but did not act.

B. The Legal Landscape.

Our pre-Booker case law recognized the relative severity

of the penalty paradigm for offenses involving crack cocaine but

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consistently deferred to Congress's policy judgments in this

regard. See, e.g., United States v. Eirby, 262 F.3d 31, 41 (1st

Cir. 2001); United States v. Singleterry, 29 F.3d 733, 741 (1st

Cir. 1994). This approach produced a series of decisions that

upheld the 100:1 ratio against an array of challenges. These

included forays based upon the Equal Protection Clause, see, e.g.,

United States v. Graciani, 61 F.3d 70, 74-75 (1st Cir. 1995), and

the rule of lenity, see, e.g., United States v. Manzueta, 167 F.3d

92, 94 (1st Cir. 1999). Pertinently, we held that, under the

mandatory guidelines system that was in vogue before Booker,

neither the Sentencing Commission's criticism of the 100:1 ratio

nor its unrequited 1995 proposal to eliminate the differential

provided a valid basis for leniency in the sentencing of crack

offenders. See United States v. Andrade, 94 F.3d 9, 14-15 (1st

Cir. 1996) (discussing the possibility of a downward departure

under USSG §5K2.0); United States v. Sanchez, 81 F.3d 9, 11 (1st

Cir. 1996) (same).

II. TRAVEL OF THE CASES

It is against this backdrop that we rehearse the travel

of these two cases. Because both appeals follow guilty pleas, we

draw the relevant facts from each defendant's plea colloquy, the

unchallenged portions of his presentence investigation report (PSI

Report), and sentencing transcript. United States v. Mercedes

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Mercedes, 428 F.3d 355, 357 (1st Cir. 2005); United States v.

Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

A. Pho.

On January 11, 2005, law enforcement officers searched a

house occupied by defendant Sambath Pho pursuant to a warrant.

They found 16.73 grams of crack cocaine together with drug-

processing supplies, cash, and firearms. On June 10, 2004, Pho

entered a guilty plea to a one-count information charging

possession with intent to distribute five grams or more of cocaine

base in violation of 21 U.S.C. § 841(a). That offense carried a

mandatory minimum sentence of five years. See id. § 841(b)(1)(B).

A probation officer subsequently compiled the PSI Report.

After converting the confiscated cash into its drug equivalent, see

United States v. Gerante, 891 F.2d 364, 368-70 (1st Cir. 1989)

(explicating the provision now found at USSG §2D1.1, cmt. n.12),

the PSI Report concluded that Pho should be held responsible for

40.43 grams of cocaine base. That yielded a base offense level of

30. A two-level gun enhancement, USSG §2D1.1(b)(1), and a three-

level discount for acceptance of responsibility, id. §3E1.1,

brought the adjusted offense level to 29. Given the absence of any

meaningful prior criminal record, Pho's GSR was 87-108 months.

At the disposition hearing, the district court confirmed

the adjusted offense level proposed in the PSI Report over Pho's

contention that the conversion of cash was inappropriate in this

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instance. The court then discussed its understanding of the

controlling law in a post-Booker world:

The question now is whether [the GSR] is a
reasonable sentence. . . . The guidelines are
no longer mandatory since Booker. The law now
is that the Court impose a sentence that is
reasonable whether it's in the guideline range
or not, and what we're talking about is
whether the guidelines produce a reasonable
sentence. It is the law that the Court has to
impose whatever mandatory minimum may have
been prescribed by Congress, and [t]he Court
cannot exceed any statutory maximum that's
been prescribed by Congress. But beyond that,
[the guidelines are] not the law.

After rejecting Pho's plea that his prior military service

justified a lower sentence, the court described "the only real

remaining question" as "this recurring question of . . . [w]hether

it is fair and reasonable in calculating a sentence to consider

crack cocaine as 100 times more serious than cocaine powder."

(Emphasis supplied).

In the court's estimation, the 100:1 ratio was

"excessive" and "not reasonable." The court explained that it had

"consistently taken the position that the Commission's

recommendation [of a 20:1 ratio] makes sense" and declared that,

except for the 100:1 ratio, it had "no quarrel with the guideline

range . . . because the guidelines take into account all the

relevant factors and otherwise take an approach that is

reasonable."

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 Based on its conclusion about the inherent unfairness of

the 100:1 ratio, the court recalculated Pho's sentencing range in

accordance with the 20:1 ratio. This approach produced a jerry-

built sentencing range of 57-71 months. The court then reiterated:

I'm not saying that's the guideline range.
The guideline range is 87 to 108 months. What
I'm saying is that in order to arrive at what
I would consider to be a fair and reasonable
sentence that complies with the statutory
criteria . . . it seems to me that it's more
reasonable to use a 20 to 1 ratio, and that's
how I come up with 57 to 71 months.

The court proceeded to impose an incarcerative sentence in the

middle of the reconstituted range (64 months). The government

filed a timely appeal. See 18 U.S.C. § 3742(b).

B. Lewis.

On September 30, 2004, police officers searched defendant

Shawn Lewis's home pursuant to a warrant and discovered a virtual

cornucopia of drugs: 153.75 grams of crack cocaine, 174 grams of

powdered cocaine, 147 grams of marijuana, and nine grams of heroin.

The search also revealed various drug-related artifacts, a large

sum of cash, and two loaded .9 mm handguns. On June 3, 2005, Lewis

entered a guilty plea to a two-count information charging

possession with intent to distribute fifty grams or more of cocaine

base and possession by a convicted felon of two handguns. See 21

U.S.C. § 841(a); 18 U.S.C. § 922(g)(1). The mandatory minimum

sentence for Lewis's drug-trafficking offense was ten years. See

21 U.S.C. § 841(b)(1)(A).

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 A probation officer subsequently prepared the PSI Report.

Based in large part on Lewis's admission that he had possessed more

than one hundred fifty grams of crack cocaine, the PSI Report

concluded that his base offense level for the drug-trafficking

count should be 34. A two-level gun enhancement, USSG

§2D1.1(b)(1), and a three-level downward adjustment for acceptance

of responsibility, id. §3E1.1, brought the adjusted offense level

to 33. Lewis's prior criminal record was extensive and placed him

in the highest possible criminal history category (VI). Those

calculations yielded a GSR of 235-293 months.

At the disposition hearing, the district court adopted,

without objection, the findings in the PSI Report. The court then

reviewed the particulars of Lewis's case. It found nothing at all

in Lewis's background or upbringing that militated in favor of a

shorter sentence. Moreover, the evidence indicated that he was a

"fairly big time drug dealer" who had been "dealing in a

significant quantity of a variety of different drugs"; that the

loaded firearms posed a high degree of danger; and that he had been

undeterred by previous periods of incarceration over a "long

history of some serious criminal offenses." Based on this bleak

picture, the court concluded that "a severe sentence is called for

here."

The court then turned to Lewis's principal argument in

favor of a lower sentence, namely, that the standard GSR was too

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punitive because it reflected the 100:1 ratio. The court described

its approach to fashioning sentences in the post-Booker world:

[T]he starting point the Court always looks to
is the guidelines. The guidelines generally
produce a sentence that is fair under the
circumstances. . . . And in this case, my
starting point is to look at the guideline
range and try to determine whether I think
that it produces an unfair sentence and, if
so, to what degree the sentence called for
under the guidelines would be unfair.

Conceding that the factors delineated in 18 U.S.C. § 3553(a)

supported a higher sentence than the government was recommending

(the low end of the standard GSR), the court candidly acknowledged

that "the only thing I see in your favor here, the only reason I

would conclude that the guidelines may call for an excessive

sentence, is this question . . . about the disparity between the

crack cocaine and the powder cocaine." (Emphasis supplied). The

court proceeded to voice its agreement with the Sentencing

Commission's position that a 20:1 ratio was "more appropriate" than

the 100:1 ratio because "the guidelines overstate what the penalty

ought to be for crack cocaine as opposed to powder cocaine."

Starting from this premise, the court recalculated

Lewis's exposure in accordance with the 20:1 ratio. This

recalculation yielded a jerry-built sentencing range of 188-235

months for the drug-trafficking count. The court imposed a

sentence of 188 months on that count. It also imposed a concurrent

sentence of 120 months on the firearms count (which is not directly

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at issue in this proceeding). The government filed a timeous

appeal. See 18 U.S.C. § 3742(b).

III. DISCUSSION

On appeal, the government's position is not that the

sentences imposed were unreasonable but, rather, that the district

court committed legal error. While Booker recognizes the authority

of a sentencing court to tailor a sentence based on individual,

case-specific considerations, the government's thesis runs, it does

not give the court free rein to reject, on a categorical basis, the

100:1 ratio embedded in both the statutory scheme and the

sentencing guidelines. The defendants' rejoinder is twofold. They

assert that the district court's deviation from the advisory

guidelines was appropriate in light of Booker and that, in all

events, the district court based the sentences actually imposed on

the individual circumstances of each case (not on broad-gauged

policy considerations). We subdivide our analysis of this

important controversy into two segments. We begin by articulating

the standard of review. We then address the merits of the dispute

that underlies these appeals.

A. Standard of Review.

It long has been the law that properly preserved

challenges to a trial court's conclusions of law engender de novo

review. See, e.g., United States v. Colon-Solis, 354 F.3d 101, 102

(1st Cir. 2004). In the past, we have applied this standard to

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appellate review of a district court's interpretation of the

sentencing guidelines. See, e.g., United States v. Carrasco-Mateo,

389 F.3d 239, 243 (1st Cir. 2004); United States v. St. Cyr, 977

F.2d 698, 701 (1st Cir. 1992).

The defendants argue that this long line of cases does

not survive the remedial holding of Booker. While the defendants

are correct in their observation that Booker altered the landscape

of appellate review of sentencing decisions, they are incorrect in

asserting that Booker displaces the de novo standard of review with

respect to a sentencing court's errors of law. See United States

v. Robinson, ___ F.3d ___, ___ (1st Cir. 2005) [No. 05-1547, slip

op. at 7-8] (holding that Booker did not alter the de novo standard

applicable to review of a sentencing court's legal interpretation

of the guidelines). We explain briefly.

As part of its remedial holding, the Booker Court excised

a provision of the Sentencing Reform Act that established standards

of appellate review for certain claims of sentencing error because

the operation of that provision depended on the mandatory nature of

the guidelines system. See Booker, 125 S. Ct. at 765 (striking

down 18 U.S.C. § 3742(e)). The Court filled the resulting lacuna

with a directive that the courts of appeals thereafter should

review sentences for reasonableness. Id.; see United States v.

Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) (explicating

Booker).

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 Although the Court instructed that reasonableness review

of the length of a sentence would be guided by the statutory

sentencing factors, see Booker, 125 S. Ct. at 765-66, it provided

no similar instruction as to how the reasonableness standard should

be applied to claims — such as the one that the government presses

here — that a sentencing court committed an error of law rather

than an error of judgment. We agree with two of our sister

circuits that, regardless of length, a sentence based on an error

of law is per se unreasonable. See United States v. Price, 409

F.3d 436, 442 (D.C. Cir. 2005); United States v. Crosby, 397 F.3d

103, 114 (2d Cir. 2005), abrogated on other grounds by United

States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005).

This conclusion is reinforced by an analogy. The

reasonableness standard and the familiar abuse of discretion

standard bear a strong family resemblance to each other. See

United States v. Ramirez-Rivera, 241 F.3d 37, 40 n.4 (1st Cir.

2001) (observing that the "practical import" of the difference

between the abuse of discretion and reasonableness standards is

"not immediately evident"). Under the latter standard, courts

consistently have regarded an error of law as a per se abuse of

discretion. See, e.g., Koon v. United States, 518 U.S. 81, 100

(1996); United States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).

Accordingly, while the abuse of discretion standard contemplates

substantial deference to the judgment calls of a nisi prius court,

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it entails "in practice . . . de novo review on issues of abstract

law." Roger Edwards, LLC v. Fiddes & Son, 427 F.3d 129, 132 (1st

Cir. 2005). We believe that the reasonableness standard functions

in precisely the same way: errors of law render a sentence per se

unreasonable, and appellate review of claimed errors of law is

nondeferential (i.e., de novo).

B. The Merits.

In our constitutional system, the power to define

penalties for federal crimes belongs to the legislative branch of

government, not the judicial branch. United States v. Evans, 333

U.S. 483, 486 (1948). While federal courts possess the discretion

to tailor individual sentences within the boundaries set by the

statutory framework, that discretion is subject to the limitations

imposed by Congress. See Mistretta v. United States, 488 U.S. 361,

364 (1989). The creation of the Sentencing Commission and the

inauguration of a guideline sentencing scheme were valid exercises

of congressional authority to fix penalties for federal crimes and,

concomitantly, to cabin judicial discretion. See id. at 412. So

too was Congress's adoption of the 100:1 crack-to-powder ratio.

See Singleterry, 29 F.3d at 739-41.

Of course, Congress's authority in this area is not

unbounded. Earlier this year, the Supreme Court identified a

constitutional infirmity in the sentencing guidelines. See Booker,

125 S. Ct. at 756. The Booker Court held that mandatory sentencing

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enhancements triggered by judge-found facts were in derogation of

the constitutionally assured right to trial by jury. Id. (citing

U.S. Const. amend. VI). To cure that infirmity, the Court excised

the statutory provision that made the sentencing guidelines binding

on the federal courts. Id. at 756-57. That surgical strike

rendered the guidelines effectively advisory and freed sentencing

courts to tailor individual sentences in light of the factors

enumerated in 18 U.S.C. § 3553(a).3 Id. at 757. This means that

district courts now possess greater flexibility in reaching

individual sentencing decisions.

We caution, however, that this newfound discretion,

though broad, is not limitless: the guidelines remain part and

3
Those factors include:

(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
correctional treatment . . . ; (3) the kinds of sentences
available; (4) the kinds of sentence and the sentencing
range established for . . . the applicable category of
offense committed by the applicable category of defendant
as set forth in the guidelines . . . ; (5) any pertinent
policy statement . . . ; (6) the need to avoid
unwarranted sentence disparities among defendants with
similar records . . . ; and (7) the need to provide
restitution to any victims of the offense.

18 U.S.C. § 3553(a).

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parcel of the sentencing algorithm. See Booker, 125 S. Ct. at 767

(directing sentencing courts to "consult [the] Guidelines and take

them into account when sentencing"); see also 18 U.S.C. §

3553(a)(4) (directing sentencing courts to consider the

guidelines). It is for this very reason that the Court made it

pellucid that the Sentencing Commission would continue to function

and to update the guidelines with a view toward "encouraging . . .

better sentencing practices . . . and promot[ing] uniformity in the

sentencing process." Booker, 125 S. Ct. at 766.

Over and above the guidelines themselves, Booker

recognized another significant restriction on sentencing decisions.

Post-Booker, those decisions must still be grounded on the factors

contained in section 3553(a). Booker, 125 S. Ct. at 766. Although

the statutory sweep is wide, see supra note 3, those factors also

serve to guide the discretion of sentencing courts in individual

cases and thereby promote greater uniformity in sentencing

decisions. See id. at 766-67.

With this mise-en-scêne in place, we turn to the

propriety of the defendants' sentences. Laboring in uncharted

waters, the lower court jettisoned the guidelines and constructed

a new sentencing range by using a 20:1 crack-to-powder ratio in

lieu of the 100:1 ratio embedded in both the statutory scheme and

the guidelines. This approach, which evinced a categorical,

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policy-based rejection of the 100:1 ratio, amounted to error as a

matter of law.

Matters of policy typically are for Congress. See, e.g.,

Plumley v. S. Container, Inc., 303 F.3d 364, 374 (1st Cir. 2002)

(explaining that "it is Congress's mission to set the policy of

positive law," whereas a court's role is "to interpret that law");

United States v. Robinson, 144 F.3d 104, 110 (1st Cir. 1998)

(stating that the 100:1 crack-to-powder ratio is "a permissible

policy choice articulated by Congress" and that, therefore, the

courts "are obliged to give it effect"). A corollary to this

principle is that, in the absence of constitutional infirmity,

federal courts are bound by Congress's policy judgments, including

judgments concerning the appropriate penalties for federal crimes.

See Eirby, 262 F.3d at 41.

By congressional edict, the Sentencing Commission is

allied with Congress in the important endeavor of calibrating

sentences for federal offenses.4 Congress has directed the

Commission to devise policies that "avoid[] unwarranted sentence

disparities," while at the same time providing "sufficient

flexibility to permit individualized sentences when warranted by

mitigating or aggravating factors." 28 U.S.C. § 991(b)(1)(B)

4
The Commission's authority to set policy, however, is limited
to those instances in which it manages to obtain congressional
approval. See 28 U.S.C. § 994(p). Where Congress withholds its
approval, the Commission's policy judgments do not command judicial
allegiance.

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(emphasis supplied). The clear import of this statutory framework

is to preserve Congress's authority over sentencing policy and to

guarantee that the exercise of judicial discretion over sentencing

decisions be based on case-specific circumstances, not on general,

across-the-board policy considerations.

Nothing in Booker altered this distribution of authority

over sentencing policy. Booker established that a district court

may exercise discretion in fashioning sentences — but that

discretion was meant to operate only within the ambit of the

individualized factors spelled out in section 3553(a).5 See

Booker, 125 S. Ct. at 764-66.

The decision to employ a 100:1 crack-to-powder ratio

rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy

judgment, pure and simple. See Andrade, 94 F.3d at 14-15 (holding

that the crack-to-powder sentencing differential is not an

individualized circumstance that justifies disregard of the

guidelines). After all, Congress incorporated the 100:1 ratio in

the statutory scheme, rejected the Sentencing Commission's 1995

proposal to rid the guidelines of it, and failed to adopt any of

the Commission's subsequent recommendations for easing the

5
In addition to the compendium of factors that a sentencing
court may appropriately consider under 18 U.S.C. § 3553(a),
Congress removed any limitation on "the information concerning the
background, character and conduct of a person convicted of an
offense which a court . . . may receive and consider for the
purpose of imposing an appropriate sentence." Id. § 3661.

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differential between crack and powdered cocaine. It follows

inexorably that the district court's categorical rejection of the

100:1 ratio impermissibly usurps Congress's judgment about the

proper sentencing policy for cocaine offenses.

The defendants take issue with the characterization of

the 100:1 ratio as a matter of congressional policy. They argue

that Congress prescribed this ratio at the maximum and minimum

poles of the statutory sentencing ranges but did not mandate its

use in other applications. This is true as far as it goes — but it

does not take the defendants very far. As the Sentencing

Commission recognized when it superimposed the guidelines on the

statutory framework, it would be illogical to set the maximum and

minimum sentences on one construct and then to use some other,

essentially antithetic construct as the basis for fashioning

sentences within the range. See USSG §2D1.1, cmt. (backg'd.).

Such a patchwork sentencing scheme would run counter to Congress's

goal of eliminating disparities in federal sentences. See 18

U.S.C. § 3553(a)(6); 28 U.S.C. § 994(f); see also Booker, 125 S.

Ct. at 767.

Even if the defendants are correct in their assertion

that the 100:1 ratio does not amount to a congressional policy

choice binding on the federal courts — and we doubt that they are

— the district court's categorical rejection of the 100:1 ratio

still runs headlong into the will of Congress as embodied in the

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Sentencing Reform Act. Congress's purpose in creating a guideline

sentencing scheme was to promote uniformity in federal sentences

based on the "real conduct that underlies the crime of conviction."

Booker, 125 S. Ct. at 759 (emphasis in original).

The district court's approach threatens to undermine this

desired uniformity in two ways. In the first place, if sentencing

courts are free to replace the 100:1 ratio with whatever ratio they

deem appropriate, the sentences of defendants for identical "real

conduct" will depend largely on which judge happens to draw a

particular case. This problem has already begun to surface; in the

wake of Booker, some sentencing courts have continued to impose

sentences for crack offenses in lockstep with the sentencing

guidelines and the 100:1 ratio while others have imposed reduced

sentences based on varying ratios. Compare, e.g., United States v.

Gipson, 425 F.3d 335, 337 (7th Cir. 2005) (affirming sentence based

on 100:1 ratio), with, e.g., United States v. Smith, 359 F. Supp.

2d 771, 782 (E.D. Wis. 2005) (adopting a 20:1 ratio), and United

States v. Fisher, No. S3 03 CR 1501, 2005 WL 2542916, at *6

(S.D.N.Y. Oct. 11, 2005) (adopting a 10:1 ratio).

In the second place, mandatory minimum sentences in drug

cases are fixed by statute. Under the Act, a first-time offender

convicted of an offense involving fifty or more grams of crack

cocaine is subject to a ten-year mandatory minimum sentence. See

21 U.S.C. § 841(b)(1)(A). Because the current guidelines were

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constructed around the mandatory minimums, a first-time offender

convicted of an offense involving, say, forty-nine grams of crack

would likely encounter a GSR of 97-121 months.6 See USSG

§2D1.1(c)(5); id. Ch.5, Pt.A. If, however, a sentencing court

displaced the guidelines by applying a 20:1 crack-to-powder ratio,

the second offender's GSR would plummet to 63-78 months. See 2002

Report, Appx. at A-4; USSG Ch.5, Pt.A. In short, a one-gram

difference in drug quantity would create a huge sentencing

differential (nearly fifty percent). It was exactly this sort of

concern that drove Congress's decision to reject the proposed

guideline amendments in 1995. See H.R. Rep. No. 104-272, supra, at

4, reprinted in 1995 U.S.C.C.A.N. at 337.

The defendants concede that the categorical adoption of

a 20:1 ratio by a single district judge would create these

distorting effects. They nonetheless argue that such a praxis

reduces sentencing disparities. This is so, the defendants aver,

because the 20:1 ratio places sentences for crack and powdered

cocaine offenses on a more even keel. This argument misapprehends

the nature of the disparity that ought to concern us.

Although the district court's approach does ameliorate

the disparity in sentences for crack and powdered cocaine offenses,

6
We say "likely" because the GSR would be subject to upward
and downward adjustments for elements such as the presence of a
firearm, USSG §2D1.1(b)(1), role in the offense, id. §§3B1.1-3B1.2,
acceptance of responsibility, id. §3E1.1, and a host of others.

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what counts is the uniformity in sentencing sought by Congress.

That uniformity "does not consist simply of similar sentences for

those convicted of violations of the same statute" but "consists,

more importantly, of similar relationships between sentences and

real conduct." Booker, 125 S. Ct. at 761. Congress plainly

believed that not all cocaine offenses are equal and that

trafficking in crack involves different real conduct than

trafficking in powder. Otherwise, it would not have ordered

dissimilar treatment of the two types of offenses in the Act.

Clearly, then, Congress intended that particular disparity to

exist, and federal courts are not free to second-guess that type of

decision. Cf. Snyder, 136 F.3d at 68-70 (rejecting argument that

disparity between federal and state sentences for similar firearms

offenses justified reduced sentence because Congress deliberately

created the disparity through the Armed Career Criminal Act).

In an effort to sidestep the force of this reasoning, the

defendants assert that the sentences in these cases resulted from

individualized analysis rather than from any categorical

imperative. For example, Lewis points out that, at his sentencing,

the lower court addressed a number of the section 3553(a) factors.

In a similar vein, Pho alludes to the district court's discussion

of several particularized considerations. We find this argument

unpersuasive.

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 The sockdolager is that, although the district court

considered individualized factors in each case, it did not base its

sentencing decisions on those factors. By the district court's own

description, "the only thing" that supported reduced sentences for

the defendants was the "tragic" and "incongruous" treatment of

crack cocaine offenses in the sentencing guidelines and the

underlying statutory scheme. The court made no bones about its

intention to apply its preferred 20:1 ratio categorically in future

cases:

I've encountered this in other cases, and I've
consistently taken the position that the [20:1
ratio] makes sense. . . . I would imagine
that by now this question must be under
consideration by the First Circuit . . . and I
hope we get some clarification on this
sometime soon before we build up too much of a
backlog of these cases. But that's the
position I take now.

Thus, the record, fairly read, belies the insinuation that the

district court imposed the sentences appealed from on the basis of

case-specific factors.

To recapitulate, we hold that the district court erred as

a matter of law when it constructed a new sentencing range based on

the categorical substitution of a 20:1 crack-to-powder ratio for

the 100:1 ratio embedded in the sentencing guidelines. This

holding recognizes that sentencing decisions must be done case by

case and must be grounded in case-specific considerations, not in

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general disagreement with broad-based policies enunciated by

Congress or the Commission, as its agent.

Let us be perfectly clear. We do not intend to disparage

the district court's thoughtful attempt to deal with a problem that

has tormented many enlightened observers ever since Congress

promulgated the 100:1 ratio. By the same token, we do not intend

to diminish the discretion that, after Booker, district courts

enjoy in sentencing matters or to suggest that, in a drug-

trafficking case, the nature of the contraband and/or the severity

of a projected guideline sentence may not be taken into account on

a case-by-case basis. Our goal is simply to channel the district

courts' newfound discretion in ways that both comport with the

Booker Court's remedial opinion and respect the separation of

powers between the legislative and judicial branches of government.

While we share the district court's concern about the fairness of

maintaining the across-the-board sentencing gap associated with the

100:1 crack-to-powder ratio, the proper place to assuage that

concern is in the halls of Congress, not in federal courtrooms. In

the final analysis, it is Congress, not the courts, that possesses

the institutional capacity to address the problem in a coherent and

uniform fashion. See Singleterry, 29 F.3d at 741.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we vacate the defendants' sentences and remand for resentencing in

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accordance with this opinion. We intimate no view as to the length

of the sentences to be imposed on remand.

Vacated and remanded.

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