In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1033
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V INCENT C ORNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:07-cr-00104-bbc—Barbara B. Crabb, Chief Judge.
S UBMITTED E N B ANC M ARCH 3, 2010—D ECIDED M ARCH 17, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
R IPPLE, K ANNE, R OVNER, W OOD , E VANS, W ILLIAMS,
S YKES, T INDER, and H AMILTON, Circuit Judges.
E ASTERBROOK, Chief Judge. Vincent Corner pleaded guilty
to possessing more than five grams of cocaine base, with
intent to distribute it. He was sentenced to 188 months’
imprisonment as a career offender under U.S.S.G. §4B1.1.
A panel concluded that the career-offender classification
was correct, 588 F.3d 1130 (7th Cir. 2009), and affirmed
the sentence in light of United States v. Welton, 583 F.3d
2 No. 08-1033
494 (7th Cir. 2009), which held that district courts are not
entitled to disagree with §4B1.1. The effect of Welton is
that, although judges may disagree with the Guidelines’
equation of crack cocaine to 20 or more times the
quantity of powder cocaine, see Kimbrough v. United States,
552 U.S. 85 (2007), they are bound by the crack/powder
ratio when the defendant also is a career criminal—because
28 U.S.C. §994(h) requires the Sentencing Commission to
ensure that the Guidelines for career offenders are at or
near the statutory maximum sentences, and the conver-
sion ratio affects the statutory maximum (and minimum)
sentences under 21 U.S.C. §841.
Kimbrough authorizes district judges to disagree with
the Sentencing Commission but not with statutes. We
held in Welton that two statutes in combination, rather
than the Sentencing Commission’s choices, require the
lengthy sentences for career offenders who distribute
crack cocaine. Section 841 treats 1 gram of crack as equiva-
lent to 100 grams of powder cocaine. The maximum
penalty for distributing five grams of crack is 40 years,
§841(b)(1)(B)(iii), while the maximum for five grams of
powder is 20 years, §841(b)(1)(C). Thus §994(h) directs
the Sentencing Commission to issue a Guideline that
the sentence of a career offender who distributes five
grams of cocaine base should be roughly twice the sen-
tence of a career offender who distributes five grams
of cocaine hydrochloride.
Corner filed a petition for rehearing en banc limited to
the question whether a district judge is entitled to
disagree with the career-offender Guideline. The United
No. 08-1033 3
States has confessed error and asked us to overrule
Welton. In the Supreme Court, the Solicitor General con-
fessed error in United States v. Vazquez, 558 F.3d 1224 (11th
Cir. 2009), on which Welton had relied. The Justices vacated
Vazquez and remanded for reconsideration in light of
the Solicitor General’s position, 2010 U.S. L EXIS 736
(U.S. Jan. 19, 2010)—a step that, though it does not en-
dorse the Solicitor General’s views, indicates receptivity
to them. The Solicitor General’s support for Corner’s
position, and the vacatur of Vazquez, occurred after
Welton and were not considered in that decision. Al-
though, as we observed in Buchmeier v. United States, 581
F.3d 561, 565–66 (7th Cir. 2009) (en banc), it is rarely
appropriate to overrule circuit precedent just to move
from one side of a conflict to another, reconsideration is
more appropriate when this circuit can eliminate the
conflict by overruling a decision that lacks support else-
where. With Vazquez vacated, this circuit stands alone,† and
†
At least four courts of appeals have concluded that sentencing
judges may disagree with the policy behind §4B1.1. See United
States v. Michael, 576 F.3d 323, 327–28 (6th Cir. 2009); United
States v. Clay, 524 F.3d 877, 878 (8th Cir. 2008); United States v.
Boardman, 528 F.3d 86 (1st Cir. 2008); United States v. Sanchez, 517
F.3d 651, 664–65 (2d Cir. 2008). Cf. In re Sealed Case, 548 F.3d
1085, 1087 (D.C. Cir. 2008), which assumes that this view is
sound. Welton cited United States v. Jimenez, 512 F.3d 1, 8 (1st Cir.
2007), as a decision holding that sentencing judges may not
disagree with §4B1.1, but Boardman shows that the first circuit
itself does not read the language in Jimenez that way. (The
crack/powder ratio was irrelevant in Jimenez because the
(continued...)
4 No. 08-1033
a fresh look at the subject is in order. See Owens v. United
States, 387 F.3d 607, 611 (7th Cir. 2004); United States v.
Carlos-Colmenares, 253 F.3d 276, 277–78 (7th Cir. 2001);
United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995). We
grant the petition for rehearing en banc.
United States v. Booker, 543 U.S. 220 (2005), holds that
the Sentencing Guidelines are advisory and that judges
may vary from their recommendations as long as they
respect all statutory requirements. Before Kimbrough most
circuits, including this one, thought that the 100-to-1 ratio
between crack and powder cocaine then used in the
Guidelines (the ratio was reduced in 2007 by Amendment
706) must be treated as a statutory rule, not only because
the 100-to-1 ratio comes from §841 but also because the
Sentencing Commission’s efforts to change the ratio in
the Guidelines had been rejected by statutes disap-
proving proposed amendments. See United States v.
Miller, 450 F.3d 270 (7th Cir. 2006). Kimbrough disagreed
with that understanding and concluded that the ratio in
the Guidelines is the work of the Sentencing Commission
rather than Congress, and that district judges may use
their own assessments of the appropriate ratio rather
than the Sentencing Commission’s.
When some circuits held, in the wake of Kimbrough,
that judges may vary from the Guidelines’ crack/powder
(...continued)
defendant distributed so much cocaine that the statutory
maximum sentence, and therefore the sentence recommended
by §4B1.1, would have been life imprisonment even if all of
his sales had been cocaine powder.)
No. 08-1033 5
ratio only if the facts of particular cases make its applica-
tion unjust, the Court responded that a sentencing
court’s power is general: “district courts are entitled to
reject and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those
Guidelines.” Spears v. United States, 129 S. Ct. 840, 843–44
(2009). We understand Kimbrough and Spears to mean that
district judges are at liberty to reject any Guideline on
policy grounds—though they must act reasonably when
using that power. As we remarked in United States
v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009), “[t]he
allowable band of variance is greater after Booker than
before, but intellectual discipline remains vital. ‘[A]
motion to [a court’s] discretion is a motion, not to its
inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.’ United States v. Burr, 25
F. Cas. 30, 35 (No. 14692d) (C.C. Va. 1807) (Marshall, C. J.).”
So long as a district judge acts reasonably, however, the
Sentencing Commission’s policies are not binding.
Our opinion in Welton relied on the Supreme Court’s
observation in Kimbrough that “Congress has shown that
it knows how to direct sentencing practices in express
terms. For example, Congress has specifically required the
Sentencing Commission to set Guidelines sentences for
serious recidivist offenders ‘at or near’ the statutory
maximum. 28 U.S.C. § 994(h).” 552 U.S. at 103. We under-
stood this to imply that U.S.S.G. §4B1.1, which imple-
ments §994(h), should be treated as a statute for the
purpose of Booker and Kimbrough. (As we recognized in
United States v. Knox, 573 F.3d 441, 449–50 (7th Cir. 2009),
§4B1.1 covers more offenses than §994(h) requires. To the
6 No. 08-1033
extent of the difference between the statute and the
Guideline, the latter reflects the Sentencing Commission’s
own policy and so is covered by Kimbrough and Spears on
any understanding.)
Further reflection has led us to conclude that the Justices’
reference to §994(h) in Kimbrough does not equate §4B1.1
with either §994(h) or the statutory maximum sentence
that the career-offender Guideline must be “at or near.”
The Court made two related points in Kimbrough: first,
the crack/powder ratio in the Guidelines was the choice
of the Commission rather than Congress; second, district
judges are entitled to disagree with the Commission’s
policy choices, as long as the judges follow all statutes.
The reference to §994(h) in Kimbrough concerned the
first of these points rather than the second; and it is
the second, reiterated in Spears, that controls the career-
offender issue. It follows that a district judge is
bound by the three-strikes provision in the Armed Career
Criminal Act, 18 U.S.C. §924(e), but not the three-strikes
provision in the career-offender Guideline.
Sentencing judges must implement all statutes, whether
or not the judges agree with them—but all §994(h) requires
is that the Sentencing Commission set the presumptive
sentencing range for certain serial criminals at or near
the statutory maximum. Guideline 4B1.1 in turn pro-
vides a benchmark that every judge must take into ac-
count. See Rita v. United States, 551 U.S. 338, 351 (2007); Gall
v. United States, 552 U.S. 38, 49 (2007). The need to consider
this reference point does not imply that the sentence
must be within the Guideline range—indeed, Rita adds
No. 08-1033 7
that a district judge must not begin with a presumption
that each case should be within the range. 551 U.S. at 351.
A sentencing judge needs to understand the Commission’s
recommendations, which reflect (among other things)
the goal of avoiding unwarranted disparities in how
different judges treat equivalent offenses and offenders.
18 U.S.C. §3553(a)(6); United States v. Bartlett, 567 F.3d 901,
907–09 (7th Cir. 2009). But Booker, Kimbrough, and Spears
conclude that a judge who understands what the Com-
mission recommends, and takes account of the multiple
criteria in §3553(a), may disagree with the Commission’s
recommendation categorically, as well as in a particular
case. Because §4B1.1 is just a Guideline, judges are as free
to disagree with it as they are with §2D1.1(c) (which sets
the crack/powder ratio). No judge is required to sentence
at variance with a Guideline, but every judge is at liberty
to do so.
Several statutes raise the sentences of recidivists. See
United States v. Wicks, 132 F.3d 383, 385 (7th Cir. 1997)
(listing some of these laws). Sentencing judges must
honor these statutes punctiliously. But §994(h) does not
set a floor under sentences; it sets a floor under one of the
Sentencing Guidelines. That the floor in §4B1.1 is linked
to the statutory maximum sentence for the crime of
conviction does not make §4B1.1 itself a statute; it
remains a Guideline. Booker, Kimbrough, and Spears hold
that the floors (and ceilings) in Guidelines are not legally
binding. We overrule Welton to the extent it holds that
§4B1.1 differs from other Guidelines. The decisions on
which Welton principally relied, including United States
v. Harris, 536 F.3d 798, 813 (7th Cir. 2008); United States
8 No. 08-1033
v. Clanton, 538 F.3d 652, 660 (7th Cir. 2008); and United
States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009),
likewise are overruled on this issue.
Corner’s sentence is vacated, and the case is remanded
for resentencing.
3-17-10