United States v. Curb
2010 U.S. App. LEXIS 23709
| 6th Cir. | 2010Background
- Curb pleaded guilty on February 28, 2005 to distribution of crack cocaine and distribution of five grams or more of crack cocaine; district court applied the career offender enhancement under U.S.S.G. § 4B1.1 based on two prior felonies and concluded they were countable as separate priors.
- Curb argued the two prior convictions (a drug offense and a crime of violence) were related and should count as a single prior offense under § 4A1.2 cmt. n. 3; the district court rejected this and applied the enhancement.
- The PSR and district court treated Curb as a career offender, calculating a total offense level and an advisory guideline range around 21 years 10 months to 27 years 3 months, with a sentence of 21 years 10 months and 8 years of supervised release.
- Curb’s prior convictions included arrests on March 15, 1997 and April 7, 1997 (juvenile custody), and the court addressed whether those should be counted as separate prior sentences under § 4A1.2(a) by examining intervening arrests.
- Curb challenged the career offender designation and the retroactivity/impact of Amendment 709; the court ultimately reversed and remanded for resentencing in light of Kimbrough and Spears.
- The opinion stresses the case had lingered and that resentencing is required given Supreme Court guidance on crack-cocaine sentencing disparities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Curb qualifies as a career offender under 4B1.1 | Curb argues two priors are related, counting as one | Curb contends they are separate sentences | Curb qualifies as a career offender |
| Retroactivity of Amendment 709 to Curb’s sentence | Amendment 709 is clarifying/substantive and retroactive | Not decided, but still would qualify under current law | Remand not decided on retroactivity; but Curb qualifies under current language; remand ordered for reasons tied to Kimbrough/Spears |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (2007) (district courts may consider crack/powder disparities in sentencing within-Guidelines)
- Spears v. United States, U.S. , 129 S. Ct. 840 (2009) (courts may vary categorically from crack-cocaine Guidelines)
- United States v. Johnson, 553 F.3d 990 (2009) (remand appropriate when judge would have varied under policy disagreement)
- United States v. Simmons, 587 F.3d 348 (2009) (express statement rule for policy disagreement required to remand; conflicts with Johnson)
- United States v. Michael, 576 F.3d 323 (2009) (supports district court may disagree with 100:1 ratio as implicitly incorporated)
- United States v. Alexander, 553 F.3d 591 (2009) (seventh Cir. on amendment retroactivity)