United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2006 Decided December 15, 2006
No. 05-3197
UNITED STATES OF AMERICA,
APPELLANT
v.
ANTHONY T. LEWIS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00430-01)
Elizabeth Trosman, Assistant U.S. Attorney, argued the
cause for appellant. With her on the briefs were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Assistant U.S. Attorney. Thomas J. Tourish,
Jr., Assistant U.S. Attorney, entered an appearance.
A. J. Kramer, Federal Public Defender, argued the cause for
appellee. With him on the brief was Lisa B. Wright, Assistant
Federal Public Defender. Jonathan S. Jeffress, Assistant Federal
Public Defender, entered an appearance.
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Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The United States appeals from the sentence
imposed by the district court in the case of defendant Anthony
T. Lewis. For the reasons set forth below, we vacate the
sentence and remand the case for resentencing.
Lewis pled guilty in the United States District Court for the
District of Columbia to one count of unlawful distribution of 50
grams or more of cocaine base, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A)(iii). According to the government’s
factual proffer, which the defendant agreed was accurate, Lewis
made five sales -- totaling 187.7 grams of cocaine base (“crack”)
-- to an undercover police officer. The Presentence
Investigation Report (PSR) prepared by the U.S. Probation
Office determined that 187.7 grams of crack corresponded to a
base offense level of 34 under the United States Sentencing
Guidelines (U.S.S.G.). See U.S.S.G. § 2D1.1(c)(3) (2004).
After adjusting three levels downward for Lewis’ acceptance of
responsibility, the PSR preliminarily set an offense level of 31.
The PSR also noted, however, that Lewis had several prior
felony convictions, including, inter alia, attempted distribution
of cocaine and escape from an institution (a halfway house).
The PSR treated the distribution conviction as a “controlled
substance offense” and the escape conviction as a “crime of
violence,” and thus classified Lewis as a career offender under
the career offender guideline, U.S.S.G. § 4B1.1(a). Under that
guideline, Lewis’ base offense level was increased to 37,
because the statutory maximum sentence for the offense to
which he pled guilty, 21 U.S.C. § 841(b)(1)(A)(iii), is life. See
U.S.S.G. § 4B1.1(b). After adjusting for acceptance of
3
responsibility, the PSR calculated Lewis’ final offense level as
34. Using the career offender guideline, the PSR also fixed
Lewis’ criminal history category at VI. See id. § 4B1.1(b). The
resulting sentencing range, for offense level 34 and criminal
history category VI, was 262-327 months. See id. ch.5, Pt. A
(sentencing table).
At sentencing, the district court rejected the PSR’s
calculations in two important respects. First, the court
concluded that Lewis’ prior conviction for escape from an
institution was not a crime of violence within the meaning of the
Guidelines. Although the district court acknowledged that this
court had previously held otherwise in United States v. Thomas,
361 F.3d 653 (D.C. Cir. 2004), it noted that the Supreme Court
later vacated Thomas on another ground, see Thomas v. United
States, 543 U.S. 1111 (2005) (vacating and remanding the case
“for consideration in light of United States v. Booker,” 543 U.S.
220 (2005)). In light of that vacatur, the district court concluded
that Thomas was no longer binding authority. Deciding the
issue de novo, the court held that Lewis’ escape was not a crime
of violence, that his case therefore lacked a prerequisite for
application of the career offender guideline, and that 37 was
therefore not the appropriate base offense level.
The district court then went on to recalculate Lewis’ offense
level. Stating that, under United States v. Booker, 543 U.S. 220
(2005), the Sentencing Guidelines are now advisory rather than
mandatory and that courts need only consider them along with
the other factors articulated in 18 U.S.C. § 3553(a), the district
court declined to employ the guideline applicable to 187.7 grams
of crack. Relying primarily upon a 2002 report to Congress
issued by the United States Sentencing Commission, see
generally United States Sentencing Commission, Report to the
Congress: Cocaine and Federal Sentencing Policy (May 2002),
the court found inappropriate the Sentencing Guidelines’ 100-to-
4
1 drug quantity ratio for offenses involving powder as compared
to those involving crack cocaine, and instead applied a 20-to-1
ratio.1 See Sentencing Tr. 24 (“I think that the sentence that one
gets to in many crack cases, and certainly in this one, meets all
of those purposes [in 18 U.S.C. § 3553(a)] if one uses the 20-to-
1 ratio rather than the 100-to-1 ratio.”). This yielded a base
offense level of 30 under the Guidelines’ drug quantity table,
U.S.S.G. § 2D1.1(c)(5). After a three point downward
adjustment for Lewis’ acceptance of responsibility, the district
court fixed Lewis’ final offense level at 27. In light of his
record of prior convictions, Lewis’ criminal history category
remained at VI, even without application of the career offender
guideline. The resulting sentencing range was 130-162 months,
see U.S.S.G. ch.5, Pt. A, and the court imposed a sentence of
162 months.
The government now appeals both the district court’s
holding that escape does not constitute a crime of violence
within the meaning of the career offender guideline, and its
adoption of a 20-to-1 rather than 100-to-1 powder/crack ratio.
The first issue is resolved by our recent decision in United States
v. Adewani, which held that Thomas remains the law of this
circuit, and hence that escape from an institution is a crime of
violence under the Sentencing Guidelines. 467 F.3d 1340, 1343
1
Under the Guidelines’ drug quantity table, a crime involving at
least 150 but less than 500 grams of cocaine base corresponds to an
offense level of 34. The same level applies to a crime involving at
least 15 but less than 50 kilograms of powder cocaine, reflecting the
Guidelines’ 100-to-1 powder/crack ratio. See U.S.S.G. § 2D1.1(c)(3).
This ratio is constant throughout the drug quantity table. See id. §
2D1.1(c). Employing a 20-to-1 ratio instead, the district court
“converted” Lewis’ 187.7 grams of crack into 3.75 kilograms of
powder cocaine, which corresponds to an offense level of 30. See id.
§ 2D1.1(c)(5).
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(D.C. Cir. 2006). The defendant does not dispute that Adewani
disposes of the crime-of-violence issue on this appeal.
Accordingly, we conclude that the district court erred in holding
that Lewis was not a career offender under U.S.S.G. § 4B1.1.
Moreover, as both parties agreed at oral argument, the
conclusion that the district court erred regarding the
applicability of the career offender guideline effectively moots
the second issue raised on appeal. As far as is relevant here,
Lewis’ status as a career offender under the Guidelines rests
solely on the nature of his prior offenses and on the statutory
maximum sentence for the offense to which he pled guilty. See
U.S.S.G. § 4B1.1. It does not depend at all on the Guidelines’
100-to-1 powder/crack ratio.
Lewis’ base offense level under § 4B1.1 is 37. Guideline
§ 4B1.1(b) provides that the offense level under that guideline
governs if it is higher than the otherwise applicable offense
level. Because 37 is in fact higher than Lewis’ offense level
under the otherwise applicable drug quantity table -- regardless
of whether the court utilizes a 100-to-1 or 20-to-1 ratio, see id.
§ 2D1.1(c)(3), (5) -- the powder/crack ratio has no bearing on
the calculation of Lewis’ guidelines range. Accordingly, we
have no occasion on this appeal to consider the propriety of the
district court’s application of the latter ratio. See, e.g., Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.
Cir. 1996) (“Not only judicial economy but the prohibition on
advisory opinions counsel against reaching an issue that might
be mooted or altered by subsequent district court proceedings.”).
The district court’s calculation of Lewis’ sentence was
premised on its holding that Lewis’ prior conviction for escape
did not constitute a crime of violence under the career offender
provision of the Sentencing Guidelines. Because that holding
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was error, we vacate the sentence and remand the case for
resentencing.
So ordered.