United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 22, 2007
Charles R. Fulbruge III
No. 06-10526 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JASON DEJUAN LEATCH, also known as Criptonite,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:
Following his conviction for conspiracy to distribute and
possession with the intent to distribute at least fifty grams of
crack cocaine, Defendant-Appellee Jason Leatch received the minimum
324-month sentence under the then-mandatory sentencing guidelines.
In the wake of United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), this court vacated Leatch’s sentence and remanded for
resentencing.
At the post-Booker resentencing hearing, Leatch sought a
downward departure under the advisory guidelines, asking the
district judge “to do what I think has become a trend around the
country . . . of looking at [crack-cocaine cases] . . . and
apply[ing] some rule of reason . . . to those guidelines.” Leatch
argued that the sentencing regime for cocaine-related offenses is
unfair because 100 times more powder cocaine than crack is required
to trigger inclusion in a given sentencing range. He suggested as
an alternative to the 100:1 “crack-powder ratio” currently
reflected by the guidelines a 20:1 ratio recommended by the
Sentencing Commission as better suited to the goals of 18 U.S.C.
§ 3553(a). After lengthy discussion with defense counsel on how
applying the 20:1 ratio would affect Leatch’s sentence, the
district judge rejected the 100:1 ratio and refused to issue a
guidelines sentence, stating:
I’m varying in this case because I think the 100-to-1
disparity between powder cocaine and crack cocaine is
inappropriate. I’ve followed with great interest the
thoughtful district court decisions that address that.
I am not going to attempt to restate on my own the
various reasons for that. But for the reasons reflected
in those decisions and also reflected in the Sentencing
Commission’s determination that the 100-to-1 ratio was
inappropriate . . . . [a]ccordingly, I’m going to follow
what I understand to be the Sentencing Commission’s
recommendation and use a 20-to-1 ratio.
The court’s application of the 20:1 ratio yielded a new sentencing
range of 262-327 months — 62 months lower than the range
corresponding to the 100:1 ratio. Leatch received the minimum
262-month sentence on the conspiracy count and two 240-month
sentences on the distribution counts, all running concurrently.
The Government appeals.
Several courts of appeals have considered and rejected
crack-cocaine trafficking sentences based on a district court’s
generalized policy disagreement with the 100:1 ratio selected by
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Congress and reflected in the Guidelines. See United States v.
Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc) (repudiating
district court’s categorical rejection of the 100:1 ratio); United
States v. Castillo, 460 F.3d 337 (2d Cir. 2006) (same); United
States v. Eura, 440 F.3d 625 (4th Cir. 2006) (same); United States
v. Pho, 433 F.3d 53 (1st Cir. 2006) (same); see also United States
v. Jointer, 457 F.3d 682 (7th Cir. 2006) (district court’s use of
20:1 ratio failed to consider case-specific factors as required by
18 U.S.C. § 3553(a)); United States v. Williams, 456 F.3d 1353
(11th Cir. 2006) (district court’s policy disagreement with 100:1
ratio was an impermissible sentencing factor under § 3553(a));
United States v. McCullough, 457 F.3d 1150 (10th Cir. 2006)
(application of 100:1 guideline sentence is not per se unreasonable
under Booker). But see United States v. Pickett, 2007 WL 445937
(D.C. Cir., Feb. 13, 2007) (emphasizing that the Guidelines’ 100:1
ratio is not mandatory); United States v. Gunter, 462 F.3d 237 (3d
Cir. 2006) (same). We agree with the reasoning used by the
majority of courts and subscribe to their conclusion that a
sentencing court may not deviate from the 100:1 crack-powder ratio
based solely upon its belief that the policies underpinning that
sentencing regime are misguided or unfair.
Of course, in this post-Booker world, the sentencing
guidelines are no longer mandatory. Nonetheless, when district
courts choose to apply a nonguidelines sentence, they must first
consider the advisory guidelines, see United States v. Angeles-
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Mendoza, 407 F.3d 742, 746 (5th Cir. 2005), and they remain
constrained by the “individualized, case-specific factors spelled
out in [18 U.S.C.] § 3553(a)” when crafting an apt punishment.
United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006);
see also United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.),
cert. denied, __U.S.__, 126 S. Ct. 43 (2005). Rejecting the 100:1
ratio because a court disagrees with congressional sentencing
policy is not a substitute for applying the essential considera-
tions of § 3553(a). This court has already recognized as much in
dicta in the crack sentencing context. See Tzep-Mejia, 461 F.3d
at 527 (“We fully agree with the courts that have held that Booker
does not give sentencing courts discretion to impose a non-
Guideline sentence based on the courts’ disagreement with policy
established by Congress and the Commission that traffickers in
crack cocaine should receive stiffer sentences than traffickers in
powder cocaine.”).
We therefore VACATE the sentence imposed by the district
court and REMAND for resentencing not inconsistent with this
opinion.
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