United States v. Aaron Eric Williams

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13205 DECEMBER 13, 2006
_______________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00111-CR-ORL-31-JGG

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

AARON ERIC WILLIAMS,

Defendant-Appellee.

_______________________

Appeals from the United States District Court
for the Middle District of Florida
_______________________

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR, Circuit Judges.

BY THE COURT:

The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.

/s/ Stanley F. Birch, Jr.
__________________________
ACTING CHIEF JUDGE

2
BLACK, Circuit Judge, Concurring in the Denial of Rehearing En Banc, in which
CARNES, MARCUS and PRYOR, Circuit Judges, join:

The decisions in United States v. Marcus Williams, 435 F.3d 1350 (11th

Cir. 2006), United States v. Aaron Williams, 456 F.3d 1353 (11th Cir. 2006), and

United States v. Pope, 461 F.3d 1331 (11th Cir. 2006), correctly apply United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The decisions of this

Circuit principally distinguish between varying from an advisory Guidelines range

based on a case-specific, individualized application of the 18 U.S.C. § 3553(a)

factors and varying from an advisory Guidelines range based on a categorical

rejection of Congress’s clearly expressed sentencing policy as embedded in the

Guidelines and in its statutes. The latter amounts to error, while the former falls

within the scope of the district court’s discretion intended by Booker.

The cases of this Circuit cited above all deal with the 100-to-1 powder

cocaine-to-crack cocaine ratio codified in 21 U.S.C. § 841(b)(1)(B) and embedded

in U.S.S.G. § 2D1.1. Our evaluation of these cases naturally requires a thorough

understanding of the district court’s role in sentencing post-Booker and the history

of the powder-to-crack cocaine ratio before we can apply that understanding to the

three cases cited above and to the dissent to the denial of rehearing en banc in this

case.

3
A. The District Court’s Role in Sentencing Post-Booker

Under our constitutional system, the power to define penalties for federal

crimes belongs to Congress, not the judiciary. United States v. Evans, 333 U.S.

483, 486, 68 S. Ct. 634, 636 (1948). The judiciary is not free, generally, to replace

a congressional policy with one it deems superior. See, e.g., Neal v. United States,

516 U.S. 284, 116 S. Ct. 763 (1996); Chapman v. United States, 500 U.S. 453, 111

S. Ct. 1919 (1991).

Congress created the Sentencing Commission under its power to define

penalties for federal crimes, using a sentencing guidelines scheme to limit judicial

discretion. Of course, Congress’s authority in this area is not without limitation.

In United States v. Booker, the Supreme Court held that mandatory sentencing

enhancements triggered by judge-found facts violate a defendant’s constitutional

right to a trial by jury. 543 U.S. at 244, 125 S. Ct. at 756. To solve the

constitutional problem, the Court excised the statutory provision that made the

Sentencing Guidelines mandatory, thereby rendering them advisory. Id. at

244–46, 125 S. Ct. at 756–57.

Rendering the Guidelines advisory, however, does not permit unfettered

judicial discretion. District courts must still “consult [the] Guidelines and take

them into account when sentencing.” Id. at 264, 125 S. Ct. at 767. Moreover,

4
Booker cabined judicial discretion by grounding it in the 18 U.S.C. § 3553(a)

factors.1 Id. at 261, 125 S. Ct. at 766. These factors serve to guide district courts

in applying their newly found discretion in individual cases, and to promote

greater uniformity in sentencing decisions. Id. at 263–64, 125 S. Ct. at 766–67.

After the Booker decision, sentencing now requires two steps. First, the

district court must correctly calculate the applicable sentencing range provided by

the Sentencing Guidelines. United States v. McVay, 447 F.3d 1348, 1353 (11th

Cir. 2006). Second, the district court must determine a reasonable sentence by

considering the sentencing range provided by the Guidelines and the § 3553(a)

1
The § 3553(a) factors are:
(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 in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for –
(A) the applicable category of offense committed by the applicable category of defendant
as set forth in the guidelines . . . issued by the Sentencing Commission . . . and . . .
that . . . are in effect on the date the defendant is sentenced . . . ;
(5) any pertinent policy statement –
(A) issued by the Sentencing Commission . . . and . . . that . . . is in effect on the date the
defendant is sentenced;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

5
factors. Booker, 543 U.S. at 264, 125 S. Ct. at 767; United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2005).

B. The Powder Cocaine-to-Crack Cocaine Ratio

The 100-to-1 cocaine-to-crack ratio directly reflects clearly expressed,

unambiguous congressional sentencing policy, which Congress embedded in the

U.S. Code and is reflected in the Guidelines.2 Following 21 U.S.C.

§ 841(b)(1)(B), which Congress enacted in 1986, the Guidelines have always

treated 1 gram of crack cocaine the same as 100 grams of powder cocaine. In

1995, the Sentencing Commission proposed amendments that would have

abandoned the 100-to-1 ratio and equated the sentences for powder cocaine and

crack cocaine, while leaving in place the different mandatory minimum sentences

that are beyond the Sentencing Commission’s reach. Congress, however, passed,

and the President signed, legislation rejecting the amendments. Act of Oct. 30,

1995, Pub. L. 104–38, 109 Stat. 334. In 1997, the Commission again issued a

report asking Congress to change the statute or to allow district courts discretion

over sentences exceeding the statutory minimum. Congress took no action.

United States Sentencing Comm’n, Cocaine and Federal Sentencing Policy

2
This Circuit has consistently upheld the ratio against constitutional challenges. See
United States v. Hanna, 153 F.3d 1286 (11th Cir. 1998); United States v. King, 972 F.2d 1259
(11th Cir. 1992).

6
(1997). In 2002, the Commission still again recommended that Congress reduce

the ratio. United States Sentencing Comm’n, Cocaine and Federal Sentencing

Policy (2002). Congress once again took no legislative action.

Arguing the 100-to-1 ratio reflected in the Guidelines is not Congress’s

policy but the Sentencing Commission’s policy alone ignores Congress’s

repeatedly expressed policy judgment. In determining the threshold quantities for

the statutory sentencing ranges in 21 U.S.C. § 841(b), Congress decided on a 100-

to-1 ratio, and the Sentencing Commission followed Congress’s decision to avoid

creating sentencing disparities. See §§ 841(b)(1)(A)(ii), (iii) (applying the same

penalties to offenses involving 5 kilograms or more of cocaine powder and

offenses involving 50 grams or more of crack cocaine); §§ 841(b)(1)(B)(ii), (iii)

(applying the same penalties to offenses involving 500 grams or more of cocaine

powder and offenses involving 5 grams or more of crack cocaine).

Congress realized gross sentencing disparities would occur if it accepted the

Sentencing Commission’s proposal to equate the drugs for Guidelines purposes.

H.R. Rep. No. 104-272, at 4 (1995), as reprinted in 1995 U.S.C.C.A.N. 335, 337.

For example, if Congress affirmed the Sentencing Commission’s

recommendations and either equated the drugs or used a different ratio in the

Guidelines than it used in setting its statutory minimums and maximums,

7
defendants whose offenses involved the same drug but different amounts near the

threshold drug quantity for a mandatory minimum sentence would receive

markedly different sentences depending on whether the amounts met the threshold

for a mandatory minimum or whether the amounts fell just short. Rationally,

Congress rejected the Commission’s proposals to equate the two drugs, mandating

the 100-to-1 ratio. To do otherwise would have undermined its statutory objective

of avoiding unwarranted disparities in sentences. Congress ensured its sentencing

policy was reflected clearly in the Guidelines.

After Booker, some district courts concluded they were free to disagree

openly with this clearly expressed, unambiguous congressional sentencing policy

embedded in the Guidelines and in the U.S. Code. Their sentencing decisions fell

into three categories. Some district courts recalculated the Guidelines range with a

lower cocaine-to-crack ratio. See United States v. Pho, 433 F.3d 53 (1st Cir.

2006). Other district courts calculated the Guidelines range correctly, but then

varied from the range based on categorical rejections of the congressional policy

behind the cocaine-to-crack ratio without looking at the case-specific,

individualized facts pertinent to each defendant. See United States v. Miller, 450

F.3d 270 (7th Cir. 2006). Finally, some district courts couched their disagreement

with the cocaine-to-crack ratio in the language of the § 3553(a) factors, but did so

8
without indicating any case-specific, individualized reasons a factor required

either an upward or downward variance from the advisory Guidelines range. See

United States v. Eura, 440 F.3d 625 (4th Cir. 2006).

This final category presents the most problems. The determination of the

gray area between case-specific, individualized facts and generalized rejections of

unambiguous congressional policy will naturally involve an extensive review of

the record.

Although each Circuit to address the cocaine-to-crack ratio in the

Guidelines has approached the issue differently, in large part because the cases

have had different factual and procedural backgrounds, these Circuits have all

agreed that a district court is not at liberty to vary from an advisory Guidelines

range because of a categorical rejection of congressional sentencing policy

regarding the 100-to-1 ratio. The Circuits allow variances only for case-specific,

individualized reasons grounded in the § 3553(a) factors. United States v.

Williams, 456 F.3d 1353 (11th Cir. 2006) (holding the district court’s rejection of

the 100-to-1 drug quantity ratio cannot be justified); United States v. Gunter, 462

F.3d 237, 249 (3d Cir. 2006) (suggesting a court categorically rejecting “the 100:1

ratio and substitut[ing] its own . . . is verboten”); United States v. Tzep-Mejia, 461

F.3d 522, 527 (5th Cir. 2006) (agreeing with the courts that hold a district court

9
judge “is not entitled to base its decision to give a non-Guideline sentence on its

disagreement with policy established by Congress . . . that traffickers in crack

cocaine should receive stiffer sentences than traffickers in powder cocaine”);

United States v. Castillo, 460 F.3d 337, 361 (2d Cir. 2006) (holding “nothing in §

3553(a) or in Booker . . . authorizes district courts to sentence defendants for

offenses involving crack cocaine under a ratio different from that provided in the

Sentencing Guidelines” other than for “case-specific applications of the § 3553(a)

factors”); United States v. McCullough, 457 F.3d 1150, 1172 (10th Cir. 2006)

(agreeing “it is error for a district court to impose a sentence outside the advisory

Guidelines range based upon its own disagreement with the crack cocaine/powder

cocaine disparity”); United States v. Brown, 453 F.3d 1024, 1027 (8th Cir. 2006)

(intimating its agreement “that a district court may not reasonably impose a

sentence outside the advisory range based solely on a rejection of the disparate

treatment of crack and powder cocaine under the guidelines”); United States v.

Miller, 450 F.3d 270, 275 (7th Cir. 2006) (holding courts cannot reject the 100-to-

1 ratio and can only vary from the range for “the specifics of the case at hand”);

United States v. Eura, 440 F.3d 625, 633 (4th Cir. 2006) (holding a district court

errs when it substitutes its own crack cocaine/powder cocaine ratio); United States

v. Pho, 433 F.3d 53, 62 (1st Cir. 2006) (concluding a “categorical, policy based

10
rejection of the 100:1 ratio, amounted to error as a matter of law”).

These Circuits have distinguished between variances based on case-specific,

individualized applications of the § 3553(a) factors and variances based on broad,

categorical rejections of congressional policy as reflected in the Guidelines. In

Booker, Justice Breyer explained that the “features of the remaining system, while

not the system Congress enacted, nonetheless continue to move sentencing in

Congress’ preferred direction, helping to avoid excessive sentencing disparities

while maintaining flexibility sufficient to individualize sentences where

necessary.” Booker, 543 U.S. at 264–65, 125 S. Ct. at 767 (emphasis added). The

focus of Booker, therefore, is to allow district judges the flexibility to tailor

sentences for individual defendants.

Based on the principle of separation of powers, Supreme Court precedent,

our own precedent, and the holdings of our sister circuits, there is a difference

between sentencing based on a categorical rejection of Congress’s clearly

expressed, unambiguous sentencing policy embedded in the Guidelines and

sentencing based on factors specific to the individual defendant and his offense

conduct. The former amounts to error, while the latter is the embodiment of the

advisory nature of the Guidelines. As discussed above, the determination of the

gray area between case-specific, individualized facts and categorical rejections of

11
Congress’s clear sentencing policy will naturally involve an extensive review of

the record. The need for an extensive review, however, does not trivialize the

important difference between determining a reasonable sentence based on case-

specific, individualized facts and usurping Congress’s role in setting sentencing

policy.

As the Second Circuit aptly explained, a sentencing court has two roles,

each embedded in the text of § 3553(a). Castillo, 460 F.3d at 355–56. Section

3553(a)(2) instructs the district court to consider “the need for the sentence

imposed to reflect the seriousness of the offense, while in § 3553(a)(4), the district

court is instructed to consider the sentencing range for the applicable category of

offense.” Id. at 355 (internal quotation omitted). The language of the two sections

highlights the difference between one particular defendant’s offense and the larger

category of offense. Id. It is the province of the judiciary to decide the

seriousness of a particular defendant’s offense on a case-by-case, individualized

basis, whereas it is the realm of the legislature to make a policy choice about a

whole category of offense. Nothing, then, empowers a district court judge to

pronounce a broad policy choice rather than a sentence based on the specific facts

of a case. Id. at 357.

C. Marcus Williams, Aaron Williams, and Pope

12
 This Circuit has faithfully applied Booker in distinguishing between a

variance based on case-specific, individualized applications of the § 3553(a)

factors and a variance based on categorical rejections of Congress’s unambiguous

sentencing policy embedded in the Guidelines. In United States v. Marcus

Williams, the panel affirmed a district court’s sentence, even though the district

court varied from the advisory Guidelines range, because the variance was rooted

in a case-specific, individualized application of the § 3553(a) factors. In United

States v. Aaron Williams, the panel reversed a district court’s sentence because it

varied from the advisory Guidelines range due overwhelmingly to a categorical

rejection of clearly expressed congressional policy reflected in the Guidelines and

did not base its sentence on a case-specific, individualized application of the

§ 3553(a) factors. Finally, in United States v. Pope, the panel affirmed a district

court’s sentence arrived at by applying the 100-to-1 ratio and not varying from the

Guidelines for policy reasons. As shown above and explained in more detail

below, this Circuit’s precedent conforms to Booker, other circuits’ holdings, and

the principle of separation of powers.

In United States v. Marcus Williams, a panel of this Court correctly applied

Booker and followed the principle of separation of powers. 435 F.3d 1350 (11th

Cir. 2006). In Marcus Williams, the defendant was convicted of selling $350.00

13
of crack cocaine. Id. at 1351. After correctly calculating the Guidelines range,

“the court turned to whether the circumstances of the particular case and the

factors set forth in 18 U.S.C. § 3553 required a sentence within the advisory

Guidelines range or allowed a sentence outside that range.” Id. at 1352. The

district court believed the Guidelines range did not “promote respect for the law

and [was] way out of proportion to the seriousness of the offense and to

[Williams’] prior criminal conduct.” Id. at 1353. On appeal, this Court concluded

the district court “weighed the factors in § 3553 and took into account Williams’

individual history and the nature of the charge against him when it determined to

sentence him to a lower term.” Id. at 1355.

Specifically, this Court concluded this was not a case where the district

court imposed a non-Guidelines sentence based on a categorical rejection of

Congress’s clearly expressed sentencing policy. Id. Rather, the district court gave

case-specific, individualized reasons for sentencing below the advisory range.

Accordingly, this Court’s decision in Marcus Williams follows from Booker and

the principle of separation of powers by distinguishing between a personal

disagreement with Congress’s clearly expressed sentencing policy as embedded in

the Guidelines and “specific, valid reasons” for varying from the advisory

Guidelines range. Id.

14
 Similarly, in United States v. Aaron Williams, a panel of this Court

faithfully applied Booker and followed the principle of separation of powers. 456

F.3d 1353 (11th Cir. 2006). At sentencing, the district court expressed its belief

that the disparity between the Guidelines’ treatment of crack cocaine offenders

compared to powder cocaine offenders “smacks of discrimination” and the

difference between the drugs “has never justified the substantial disparity in

sentences.” Id. at 1366 (internal quotations omitted). The panel concluded the

district court “took into account its personal disagreement with Congress’s

judgment as to how much harsher the penalties for crack offenders should be.” Id.

Although the district court couched some of its arguments in the § 3553(a) factors,

the panel concluded, and it continues to conclude, that the overwhelming reason

behind the district court’s sentence was its personal disagreement with and

categorical rejection of clearly expressed congressional sentencing policy as

embedded in the Guidelines.3

3
Judge Barkett, in her dissent from the denial of rehearing en banc, states “[t]he majority
would tell the district court that they don’t believe its statement that it considered all of the
statutory factors.” Just the opposite is true. The panel did believe the statements of the district
court and determined the district court used the factors as a vehicle to fashion a sentence based
on its categorical rejection of congressional policy embedded in the U.S. Code and clearly
reflected in the Guidelines. Instead of applying the factors in a case-specific, individualized
fashion to determine a reasonable sentence, as Booker mandates, the district court applied the
factors in an unreasonable manner by fashioning a sentence based on its rejection of clearly
stated congressional policy.

15
 This Court held that such considerations are impermissible factors for the

district court’s consideration at sentencing. Id. It is important to note that the

panel agreed “that a sentence below the Guidelines range in a crack cocaine case

may be reasonable, so long as it reflects the individualized case-specific factors in

§ 3553(a).” Id. at 1369. Again, this Court applied Booker and followed the

principle of separation of powers. Aaron Williams is consistent with the precedent

of our Circuit and the current holdings of our sister circuits. The panel of this

Court distinguished between a district court’s general disagreement with clearly

expressed congressional policy embedded in the Guidelines as an invalid reason

for varying from an advisory Guidelines range and using individualized and case-

specific factors as valid reasons for varying from an advisory Guidelines range.

Finally, in United States v. Pope, this Court applied Booker and followed

the precedent of this Court and the principle of separation of powers. 461 F.3d

1331 (11th Cir. 2006). In Pope, the defendant was convicted of possession with

intent to distribute 50 grams or more of a mixture or substance containing cocaine

base (crack cocaine). Id. at 1333. On appeal, Pope argued the district court

applied the 100-to-1 powder cocaine-to-crack cocaine ratio as mandatory. Id. The

panel painstakingly parsed the difference between what is and what is not

mandatory post-Booker. Id. at 1335–37. The panel explained the district court

16
must still correctly determine the advisory Guidelines range by using the 100-to-1

ratio. Id. at 1337. Yet, the district court must also be aware that the entire

Guidelines system is advisory. Id. Again, this Court delineated the difference

between varying from a Guidelines range based on a categorical rejection of

Congress’s clearly expressed policy embedded in the Guidelines and varying

based on the case-specific and individualized facts of a given defendant’s offense.

As the above discussion demonstrates, this Circuit follows Booker

faithfully. This Circuit recognizes a district court may vary from an advisory

Guidelines range for case-specific, individualized applications of the § 3553(a)

factors. This Circuit concludes that varying from an advisory Guidelines range

based on a categorical rejection of Congress’s clearly expressed sentencing policy

as embedded in the Guidelines and its statutes is error.

D. The Dissent from the Denial of Rehearing En Banc

Judge Barkett’s disagreement with the Aaron Williams decision derives

from her review of the record. After reviewing the record, she concludes the

district court “methodically evaluat[ed] the sentencing factors set forth in

§ 3553(a).” While this may be true, the district court must do more than simply

couch, in the language of the § 3553(a) factors, its personal and categorical

rejection of Congress’s clearly expressed sentencing policy as embedded in the

17
Guidelines. The district court must apply § 3553(a) in a case-specific,

individualized manner. The Aaron Williams panel, after an extensive review of

the record, concluded, and continues to conclude, that the district court failed to

engage in any case-specific, individualized assessment of the § 3553(a) factors.

Aaron Williams, 456 F.3d at 1369.

In her dissent, Judge Barkett states that “[u]nder Booker and our governing

precedent, a district court may ‘disregard’ the 100:1 crack-to-cocaine ratio if it

properly calculates the guidelines range and sentences the defendant based on the

individual facts and circumstances of the case” (emphasis added).4 To the extent

“disregard” means vary from the advisory Guidelines range, there is no

disagreement between the Aaron Williams decision and Judge Barkett’s statement

of the law, and, therefore, no need to review this case en banc. Booker and our

precedent allow variances from the advisory Guidelines range based on an

individualized and case-specific application of the § 3553(a) factors, while

forbidding variances based on categorical rejections of Congress’s clearly

4
Judge Barkett also suggests Aaron Williams is inconsistent with United States v. Eldick,
443 F.3d 783 (11th Cir. 2006). In Eldick, a panel of this Court correctly applied Booker and
followed the principle of separation of powers. The panel reviewed the district court’s
determination that a sentence above the advisory Guidelines range was reasonable. Id. at 790. In
so doing, the panel carefully noted that “[t]he district court . . . considered the § 3553(a) factors.”
Id. at 789. Moreover, the panel noted the particular case-specific, individualized factors that led
to the variance. As shown above, Eldick is consistent with this Circuit’s current holdings and
faithfully follows Booker.

18
expressed, unambiguous sentencing policy embedded in the Guidelines. Judge

Barkett correctly states the law, and this Court in its decisions correctly applied

the law. It seems that Judge Barkett simply disagrees with the Aaron Williams

panel’s extensive review of the record.5

BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:

5
In making her determination, Judge Barkett goes beyond the text of the Marcus Williams
and Aaron Williams opinions and relies heavily on the sentencing hearing transcript in each case.
In essence, Judge Barkett is disagreeing with the panel’s determination in Aaron Williams that
the overwhelming reason for the sentence was the district court’s disagreement with clearly
expressed congressional sentencing policy reflected in the Guidelines.

19
 The panel in this case holds that a district court cannot disregard the 100:1

crack-cocaine ratio1 based upon its determination that the ratio overstates the

seriousness of this defendant’s offense and is thus unreasonable under 18 U.S.C.

§ 3553(a). See United States v. Aaron Williams, 456 F.3d 1353 (11th Cir. 2006)

(“Aaron Williams”).2 This holding conflicts with United States v. Booker, 543

U.S. 220 (2005), and specifically conflicts with our prior cases governing

reasonableness review in which we have affirmed below-guidelines sentences for

crack offenders based on the district court’s disagreement with the guidelines. See,

e.g., United States v. Marcus Williams, 435 F.3d 1350 (11th Cir. 2006) (“Marcus

Williams”). It also conflicts with prior cases in which we have affirmed above-

guidelines sentences based on the district court’s personal judgment that the

seriousness of the defendant’s crime was not adequately reflected by the

guidelines. See, e.g., United States v. Eldick, 443 F.3d 783 (11th Cir. 2006).

Thus, I dissent from the denial of rehearing en banc.

As explained more fully below, the differentiation between crack cocaine

1
The “100:1 crack-cocaine ratio” refers to the relative quantities of crack and powder
cocaine required to trigger inclusion in a particular guidelines range. Congress requires one
hundred times more powder cocaine than crack cocaine to trigger inclusion in a range. See 21
U.S.C. § 841(b)(1).
2
See also United States v. Pope, 461 F.3d 1331(11th Cir. 2006) (following Aaron
Williams).

20
and powder cocaine is simply a guideline. Under Booker, the recommended

guideline range for crack cocaine must be considered like any other guideline

range. That is, like all other guidelines, it cannot be considered mandatory; it is to

be considered advisory; it must be considered in conjunction with all of the other

factors listed in § 3553(a). There is nothing in Booker, the Sentencing Reform

Act, nor in any other law that exempts the crack guidelines from the dictates of

Booker. Accordingly, if a district court concludes, upon consideration of all of the

§ 3553(a) factors, that the crack guidelines overstate the seriousness of a particular

defendant’s offense, we may not reverse solely on the basis that the district court

was obligated to follow the guidelines.

I.

The Effect of Booker

In Booker, the Court severed and excised 18 U.S.C. § 3553(b)(1), the

provision of the Sentencing Reform Act that made the guidelines mandatory, from

the statute. See Booker, 543 U.S. at 245. After Booker, the Sentencing Reform

Act requires that a sentencing court “impose a sentence sufficient, but not greater

than necessary” to achieve the purposes of retribution, deterrence, public safety,

and rehabilitation. The Act states that a sentencing court “shall consider” all of

21
the factors listed in § 3553(a). As is evident from the text of § 3553(a)(4), the

guidelines are only one factor (and not even the first) that must be considered by a

sentencing court. The central concern is that a sentencing court “impose a

sentence sufficient, but not greater than necessary,” to reflect the seriousness of

the offense, deter criminal conduct, protect the public from further crimes, and

provide the defendant with treatment. As the Supreme Court said, the

constitutionally required excision of § 3553(b)(1) “makes the Guidelines

effectively advisory. It requires a sentencing court to consider Guidelines ranges,

but it permits the court to tailor the sentence in light of other statutory concerns

as well, see § 3553(a) (Supp. 2004).” Booker, 543 U.S. at 245-46 (citation

omitted; emphasis added). Sentencing courts may no longer consider the

guidelines range as mandatory and are now required to consider and evaluate all

of the factors listed in § 3553(a) when fashioning a sentence.

II.

Our Prior Case Law

This Court’s sentencing jurisprudence following Booker has generally

observed the Supreme Court’s prohibition of mandatory guidelines. We have

required sentencing courts to first calculate correctly the guidelines range. Having

22
done so, “the district court may impose a more severe or more lenient sentence as

long as the sentence is reasonable.” United States v. Crawford, 407 F.3d 1174,

1179 (11th Cir. 2005); see also United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

Based at least in part on our deferential standard of review, we have

affirmed sentences above the guidelines range on the basis that the sentencing

court considered the § 3553(a) factors and arrived at a “reasonable” sentence. See,

e.g., Eldick, 443 F.3d 783; United States v. Valnor, 451 F.3d 744 (11th Cir. 2006).

We have also affirmed sentences that depart downward from the guidelines range

when the district court considers the § 3553(a) factors and arrives at a reasonable

below-guidelines sentence. See, e.g., Marcus Williams, 435 F.3d 1450; United

States v. Gray, 453 F.3d 1323 (11th Cir. 2006). Explication of a few of these

decisions illustrates the principles that have guided our review of sentencing cases

since Booker.

In Eldick, the defendant was convicted of healthcare fraud and distributing

hydrocodone, and was sentenced to 180 months imprisonment. Although Eldick’s

guideline range called for 87 to 108 months, we affirmed the district court’s

sentence on the basis that the district court “considered the § 3553(a) factors,

including the guidelines and the policy statements of the Sentencing Commission,

23
and found that the guidelines range was ‘inadequate’ because it failed to grasp the

full significance and breadth of harm inflicted by Eldick’s actions.” 443 F.3d at

790-91. Thus we permitted the district court to impose a sentence far above the

guidelines range, accepting the court’s reasoning that the guidelines did not

“adequately take into account the severity of the damage done by Mr. Eldick, and,

therefore . . . should not be applied.” Id. at 788.

In Marcus Williams, the defendant was a career offender convicted of

selling $350 worth of crack cocaine. 435 F.3d at 1351. The district court imposed

a sentence of 90 months imprisonment, which was well below the applicable

guidelines range of 188 to 235 months. Id. at 1353. The district court explained at

the defendant’s sentencing hearing: “[N]ow that I have some discretion, what I’m

suggesting here is that in this particular instance, the guidelines . . . do not produce

a just and reasonable result.” The court stated, “I have real problems with [the]

guidelines, because . . . if we apply the chapter four enhancement, career criminal

enhancement, he goes up to a 31, six, which is 188 to 235 months. . . . This is the

type of guidelines application, mechanistic application of a guideline that I think is

the situation where the guidelines themselves just totally miss the mark and are

inappropriate.”

We affirmed, explaining that “the district court’s statements over the course

24
of the sentencing hearing show it weighed the factors in § 3553 and took into

account Williams’ individual history and the nature of the charge against him

when it determined to sentence him to a lower term.” Id. at 1355. We noted that

Marcus Williams was:

not a case where the district court imposed a non-Guidelines sentence
based solely on its disagreement with the Guidelines. In this case, the
district court correctly calculated the Guidelines range and gave
specific, valid reasons for sentencing lower than the advisory range.
Applying the principles of review in light of the § 3553(a) factors and
the reasons given by the district court, the 90-month sentence
imposed was reasonable.

Id.3

Both Eldick and Marcus Williams are consistent with the deferential

standard of review we have articulated in our sentencing cases. See, e.g., Talley,

431 F.3d at 788. The decisions also demonstrate strict observance of the Supreme

Court’s mandate in Booker that the guidelines be treated as advisory.

3
The Third Circuit has since cited United States v. Marcus Williams for the proposition
that the Courts of Appeal have not unanimously rejected a court’s decision to sentence below the
guidelines range in crack-cocaine cases. See United States v. Gunter, No. 05-2952, --- F.3d ----,
2006 WL 2589149, at *6 (3d Cir. Sept. 11, 2006). The Third Circuit suggests that Marcus
Williams stands for the proposition that district courts may take the guidelines’ crack/powder
cocaine differential into consideration and ultimately impose a non-guidelines sentence. Id.
Additionally, in United States v. Daniels, No. 05-10432, 2005 WL 2114158 (11th Cir. Sept. 2,
2005), we held that consideration of the drug involved was a valid factor in the district court’s §
3553(a) analysis. As the Third Circuit explained, citing our cases as precedent, “consideration of
the drug involved (i.e., crack cocaine, powder cocaine, heroin, et al.) as a sentencing factor is
proper and encouraged in the post-Booker regime.” United States v. Gunter, No. 05-2952, ---
F.3d ----, 2006 WL 2589149, at *7 (3d Cir. Sept. 11, 2006) (emphasis added; citing Marcus
Williams, 435 F.3d at 1354-55).

25
 III.

Aaron Williams: The Case At Issue

The opinion in the case at issue here, Aaron Williams, is in direct tension

with its predecessors and departs from our compliance with Booker. Aaron

Williams reverses a sentence below the guidelines range on the basis that the

district court considered an improper factor in conducting its reasonableness

review under § 3553(a); however, that “impermissible factor” is simply the

district court’s judgment that the recommended guideline sentence in this case,

which applied the 100:1 crack-cocaine ratio, would have been “greater than

necessary” to reflect the seriousness of the offense, deter criminal conduct, protect

the public from further crimes, and provide the defendant with treatment.

Aaron Williams was convicted of possessing crack cocaine with intent to

distribute. Although the guidelines advised a range of 360 months to life

imprisonment, the district court sentenced Williams to 204 months imprisonment.

Both at the sentencing hearing and in a written Memorandum Sentencing Opinion

issued after the hearing, the district court explained the basis for its sentence,

methodically evaluating the sentencing factors set forth in § 3553(a). The district

court stated that its analysis was compelled by the central instruction from

26
Congress that sentencing judges “impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in [18 U.S.C. § 3553(a)(2)].” The

district court then explained that it arrived at the sentence imposed by

“consider[ing] the guidelines on an advisory basis in the context of the statutory

factors set forth in 18 U.S.C. [§] 3553.”

Although the district court expressed frustration in its sentencing opinion

regarding the 100:1 crack-cocaine disparity,4 the court went on to explain the

individual circumstances of the particular defendant that contributed to its

sentencing decision: “With respect to Williams, the Court has already alluded to

the nature and seriousness of the offense and Williams’ criminal history. In short,

Williams is a low-level drug dealer and was convicted of selling relatively small

amounts of crack cocaine.” The district court found that sentencing Williams to a

4
The ratio has been subject to widespread criticism almost since its inception. The
Sentencing Commission itself has concluded that the 100:1 powder to crack ratio produces
sentences that are greater than necessary to satisfy the purposes of punishment. According to the
Commission, the 100:1 ratio exaggerates the relative harmfulness of crack cocaine and the
majority of crack offenses involve low drug quantities, no violence, and defendants with low
criminal histories. This differential in sentencing creates an unwarranted disparity that has been
correlated with racial disparities and that undermines the public confidence in the criminal justice
system. See, e.g., U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal
Sentencing Policy, at 91, 102-103 (2002) (declaring “firmly and unanimously” that the 100:1
drug quantity ratio “is unjustified and fails to meet the sentencing objectives set forth by
Congress”); U.S. Sentencing Comm’n, Special Report to the Congress: Cocaine and Federal
Sentencing Policy, at 2 (1997) (“[A]lthough research and public policy may support somewhat
higher penalties for crack than for powder cocaine, a 100-to-1 quantity ratio cannot be
justified.”); U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and Federal
Sentencing Policy (1995).

27
dramatically higher sentence based effectively on the government’s decision to

purchase crack cocaine rather than powder cocaine would undermine public

confidence in the law. The district court’s ultimate decision rested upon a

balancing of the § 3553(a) factors with respect to the particular defendant before

the court:

In short, a sentence of 30 years to life would not provide just
punishment. Rather, such a harsh sentence would be totally out of
character with the seriousness of this offense and is not necessary to
afford adequate deterrence to criminal conduct or to protect the public
from further crimes by this Defendant. Rather than promoting respect
for the law, a guideline sentence would have the opposite effect.

On the basis of this analysis, the district court sentenced the defendant to 204

months imprisonment. The court continued:

In considering all of the statutory factors, including the sentencing
guidelines, the Court imposes a sentence of 204 months. This is a
substantial term for a relatively minor offense. But, given the
circumstances (crack versus powder cocaine) and Williams’ long
history of selling illegal drugs, a lengthy sentence is warranted. A
guidelines sentence, however, is not.

Based on my review of these cases, I fail to see how Aaron Williams differs

in any material way from both Marcus Williams5 and Eldick. In Eldick, the

district court’s sentence above the guidelines range was based upon the court’s

5
Indeed, Aaron Williams involved the same district judge as Marcus Williams, who
imposed a below-guidelines sentence for the same offense as in Marcus Williams, and who
voiced the same type of criticism of the guidelines as in Marcus Williams.

28
assessment that “the guidelines range was ‘inadequate’ because it failed to grasp

the full significance and breadth of harm inflicted by Eldick’s actions.” 443 F.3d

at 789-90. The district court explicitly stated that it felt the guidelines “should not

be applied” because they did “not adequately take into account the severity of the

damage done by [the defendant].” We cited that statement with approval. Id. at

788 n.2. In Marcus Williams, we again affirmed a sentence outside the guidelines

range, notwithstanding the district court’s statements that the guidelines “do not

produce a just and reasonable result” and were “unreasonable” in that case.

The judges concurring in the denial of rehearing en banc concede that the

district court evaluated the sentencing factors set forth in § 3553(a), but

nevertheless would reverse the district court because, they claim, “the district

court must do more than simply couch, in the language of the § 3553(a) factors, its

personal and categorical rejection of Congress’s clearly expressed sentencing

policy as embedded in the Guidelines.” The majority essentially would tell the

district court that they don’t believe its statement that it considered all of the

statutory factors. This scrutiny of the statements of a district court judge is

unprecedented in our sentencing jurisprudence; in every other context, we take the

statements of a district court at face value. See, e.g., United States v. Scott, 426

F.3d 1324, 1330 (11th Cir. 2005) (stating that “the district court explicitly

29
acknowledged that it had considered Scott’s arguments at sentencing and that it

had considered the factors set forth in § 3553(a). This statement alone is sufficient

in post-Booker sentences.”); Talley, 431 F.3d at 786 (“[A]n acknowledgment by

the district court that it has considered the defendant’s arguments and the factors

in section 3553(a) is sufficient under Booker.”).

The panel in Aaron Williams explains that it did not take the statements of

the district court at face value because, elsewhere in the sentencing memorandum,

the district court stated its “personal disagreement with Congress’s judgment as to

how much harsher the penalties for crack offenders should be.” 456 F.3d at 1366.

I can think of no other context in which we reverse a district court for its dicta

rather than the stated basis for its decision. We are not in the business of

censoring the district courts when those courts have stated explicitly that they have

followed the statutory mandate of § 3553. Furthermore, the panel opinion has the

perverse effect of discouraging district court judges from stating the reasons for

imposing sentence—the less they say, the less that can be used as a basis to

reverse them. This result is inconsistent with the candor to which our criminal

justice system otherwise aspires. See, e.g., 18 U.S.C. § 3553(c)(1) (requiring the

court, at the time of sentencing, to “state in open court the reasons for its

imposition of the particular sentence”).

30
 Ultimately, I disagree with the substance of this Court’s suggestion that a

district court may not sentence crack offenders “in a manner inconsistent with

Congress’s intent as expressed in the Guidelines.”6 The panel in Aaron Williams

suggests that the crack guidelines are always mandatory when it states that

“[f]ederal courts are not at liberty to supplant [the 100:1 drug quantity ratio].” 456

F.3d at 1367. I believe this is an express violation of Booker, which commanded

district courts to comply with the post-Booker § 3553(a). The panel in Aaron

Williams has essentially faulted the district court for its compliance with the

fundamental requirement of § 3553(a)—to arrive at a sentence no greater than is

6
See United States v. Pope, 461 F.3d 1331 (11th Cir. 2006), which relied on Aaron
Williams. The defendant in Pope argued that the 100:1 drug quantity ratio was excessive as
applied in his case. The district court declined to consider that argument in its 3553(a) analysis.
The panel, relying heavily on Aaron Williams, held that “the district court did not err by rejecting
Pope’s argument that it could disregard the 100:1 crack-to-cocaine ratio as part of its calculation
of a reasonable sentence under 18 U.S.C. § 3553(a).” Id. at 1337. Of course, a district court may
not completely disregard the ratio, but that was not Pope’s argument. His argument was that the
district court is permitted to consider the drug involved as one factor in its analysis whether a
sentence is reasonable as applied to a particular defendant; in some cases, he argued, a guidelines
sentence will be unreasonable.
The panel opinion in Pope is tantamount to a holding that the guidelines are mandatory
because § 3553(a)(4)—the factor requiring consideration of the guidelines—is to supersede the
other factors no matter what. The panel explained that, notwithstanding Booker, “the district
court remains obligated to calculate the correct Guidelines range, and as part of that obligation,
the court may not disregard individual Guidelines or construe them in a manner inconsistent with
Congress’s intent as expressed in the Guidelines, even if the ultimate range based on those
Guidelines is advisory in nature.” Id. This statement is confounding because the Court held in
Booker that Congress’s intent, as expressed in the Sentencing Reform Act’s imposition of
mandatory guidelines, was unconstitutional. If Congressional intent, as embodied in the
sentencing guidelines’ “Drug Quantity Table,” is to always supercede all other § 3553(a) factors,
then Booker is rendered meaningless in such cases.

31
necessary.

Congress’s judgment regarding the penalties for crack offenders are

reflected in the sentencing guideline range, which cannot be imposed mandatorily

without violating the Constitution. This Court is not free to ignore Booker’s

fundamental holding by requiring blind adherence to the crack guidelines.

Booker requires that a sentencing court consider all of the factors listed in

§ 3553(a), not just the suggested guideline. Section 3553(a) requires a sentencing

court to balance all of the enumerated factors in arriving at a sentence that is

sufficient, but not greater than necessary, to fulfill the purposes listed in §

3553(a)(2). Congress did not create an exception to § 3553(a) for crack offenses,

nor did the Supreme Court in Booker. Sentencing courts must arrive at a sentence

that is “reasonable,” whether sentencing a crack offense or any other offense. This

remains true even though Congress has not elected to change the crack guidelines,

notwithstanding numerous recommendations by the Commission to the contrary.

See Aaron Williams, 456 F.3d at 1365-66.

Accordingly, under Booker and the post-Booker Sentencing Reform Act, a

sentencing court is not only permitted but is required to evaluate the propriety of

applying the 100:1 crack-cocaine ratio in a particular case. As Judge Michael

recently stated:

32
 While the Commission’s findings alone cannot justify a below-
guidelines sentence, in certain cases they can help sentencing courts
analyze the § 3553(a) factors and select a sentence that is ‘sufficient,
but not greater than necessary’ to punish, deter, and rehabilitate the
defendant. The Commission’s findings, in other words, can be
considered insofar as they are refracted through an individual
defendant’s case.

United States v. Eura, 440 F.3d 625, 637 (4th Cir. 2006) (Michael, J., concurring)

(citations omitted).7 The Third Circuit’s recent approach in Gunter is very similar:

[O]nce between the minimum and maximum statutory ranges of 21
U.S.C. § 841(b), there is nothing special about the crack cocaine
Sentencing Guidelines that makes them different, or less advisory,
than any other Guidelines provision . . . .
Post-Booker a sentencing court errs when it believes that it has
no discretion to consider the crack/powder cocaine differential
incorporated in the Guidelines — but not demanded by 21 U.S.C. §
841(b) — as simply advisory at step three of the post-Booker
sentencing process (imposing the actual sentence after considering
the relevant § 3553(a) factors) . . . .
Of course, the District Court is under no obligation to impose a
sentence below the applicable Guidelines range solely on the basis of
the crack/powder cocaine differential. Furthermore . . . we do not
suggest (or event hint) that the Court categorically reject the 100:1
ratio and substitute its own, as this is verboten. The limited holding
here is that district courts may consider the crack/powder cocaine
differential in the Guidelines as a factor, but not a mandate, in the

7
After Booker, a number of courts have imposed sentences below the range in crack
cocaine cases in light of the Commission’s conclusions, the facts and circumstances of the case,
and the history and characteristics of the defendant. E.g., United States v. Perry, 389 F. Supp. 2d
278, 303-08 (D.R.I. 2005) (noting that to disregard the Sentencing Commission’s findings
because Congress failed to adopt them would raise serious Booker concerns); Simon v. United
States, 361 F. Supp. 2d 35, 44-49 (E.D.N.Y. 2005); United States v. Harris, 2005 U.S. Dist.
LEXIS 3958, at *10-*11 (D.D.C. Mar. 7, 2005); United States v. Smith, 359 F. Supp. 2d 771,
777-82 (E.D. Wis. 2005).

33
 post-Booker sentencing process.

2006 WL 2589149, at *10-*11.

Under Booker and our governing precedent, a district court may “disregard”

the 100:1 crack-to-cocaine ratio if it properly calculates the guidelines range and

sentences the defendant based on the individual facts and circumstances of the

case. To the extent that Aaron Williams conflicts with that proposition, I dissent

from our denial of rehearing en banc.

34