United States v. Priester

hearing. two tencing principal We have BOGGS,MOORE, Before: and issues before us. The first is our standard KETHLEDGE, Circuit Judges. review, which on depends whether KETHLEDGE, J., delivered the argued Priester to court the district what MOORE, court, J., joined. in which argues argument now, he to us now. His BOGGS, 953-54), (pp. J. delivered a to the language Spears, use is that the separate dissenting opinion. district court failed to its recognize author ity vary categorically “to and from OPINION the crack-cocaine Guidelines based on a

KETHLEDGE, Judge. Circuit disagreement policy those with Guide lines.” Id. we hold court some cases would on imposing to a standard we dislike Our determination whether Priester is ourselves. This such case. Xavier made that to to pled guilty conspiring Priester to dis depend does not on he whether used the cocaine, cocaine, powder tribute crack and Supreme same that Court marijuana. The district court sentenced depends later in Spears. used It instead him to a within-Guidelines 180 months’ conveyed on Priester whether sub- The imprisonment. explanation court’s stance of what he now. argues Here is exempla why it chose that sentence was hearing: what his counsel said at the ry exception. exception one The is —with targets argues, what Priester here. He Likewise, Honor, although Your it’s tak- specifically, that the district court failed to en account in into the calculations of the recognize authority “vary it had the that sentencing guidelines, this conviction in- categorically” from the crack-cocaine substances, volved both—several but choosing Priester’s sentence. both crack cocaine powder and cocaine. authority The that made existence of all have we And we heard and all know clear in a Supreme Court case — ratio, about which hundred-to-one more less is still under applicable or (per L.Ed.2d S.Ct. guidelines, feel, my which we that curiam) was itself decided after the —that I, client Mr. Priester unfair district court sentenced Priester. So we can the Court take into consideration in decision, have the of that benefit whereas just fashioning a sufficient sentence. parsed did Having the district court not. [Emphasis added.] transcript, with agree we adequately conveyed This statement appeared Priester argument. unaware of the substance Priester’s He ob- order. The court says them reverse ratio and crack-cocaine the 100:1 cites recent version of the say serves that the “most He does not “unfair.” that the ratio is to the November merely yield guidelines” referring an unfair the ratio would — essence, which, to the crack in amendments Guidelines’ in his sentence case— reduc- argument two-point in a sentence-specific provisions a would be —resulted decision in level. That Court’s base offense Supreme the tion of Priester’s based on 85, fact, of historical Kimbrough v. United is a statement 558, any authority. 169 L.Ed.2d 481 recognition than a of 128 S.Ct. rather (“it of discretion for an abuse more would not be other observation —the The court’s when sentenc- to conclude a district court that the 100:1 ratio important one here—-is that the defendant ing particular a play guidelines[.]” in in the largely “is still a yields sentence disparity crack/powder say that it Notably, the court does not necessary’ to achieve than ‘greater out of play. take the ratio could Instead, 3553(a)’s Priester purposes”). § go beyond mere silence These comments “unfair,” that the ratio says itself that the district court knew as to whether take that unfairness court can that authority reject the 100:1 it had the fashioning in Pries- “into consideration” Instead, an outright. they reflect ratio para- That is a decent sentence. ter’s the court did not have assumption later hold- of the Court’s phrase Spears’s authority. The essence of categorically can that a district court ing a district court can take the holding is that policy grounds ratio on and then front, play, up ratio of before 100:1 out accordingly. a defendant’s sentence fashion yields ratio determining whether the even 265-66, at 129 S.Ct. Spears, 555 U.S. See in a case. overlong particular an sentence 840. Here, expressly stated court’s Thus we review the district in then the play that the ratio was —and procedural say, treatment of this on to other issues. To court moved plain record, rather than error. silently reasonableness that the court rec- on this Harmon, v. 607 F.3d in authority See United States later-announced ognized its (6th Cir.2010). Here is what that au- Spears, but chose not to exercise about the 100:1 ratio: district court said mere fiction. thority, would be prop although And [Priester’s counsel] in put facts this case a different These erly points out that the hundred-to-one from others in which we have de- posture largely ratio crack cocaine is still in general issue. both cided same as the most re play guidelines, in the Johnson, F.3d 990 States v. cent version were used of (6th Curb, Cir.2009), and here, drug quantity to calculate the (6th Cir.2010), the district in partial which means that deference they as to whether courts had been silent opened by crack cocaine issues the Su expressly granted later had the preme Sentencing Court and the Com remanded for re- Spears. to them We itself, points mission two were reduced light Spears. In United the calculation that would other from Cir. States v. 587 F.3d applied properly wise have because 2009), affirmed the defendant’s sen- we drugs [Empha the set of involved here. There, review. plain-error tence on added.] sis ar- Spears-type did not make a defendant court, and the dis- in the district says things gument two The district nothing about the trict court itself said significance passage. in this We take By my issue. Neither of those circumstances is reading of the here. did present nothing wrong whatsoever. At page majority willing to give are better decided on than reality Cases a pass for a reference to “the reality on fiction. The here is that we most recent version guidelines” be- have no reason to think —and affirmative cause, state, we it “is simply statement of reason not to think —that the district court However, historical fact.” the second coming Spears. knew what was And statement, which is fatal in the majority’s binding precedent is now for this view, is the statement the one-hun- result, case. The lawful and the sensible dred-to-one largely ratio “is still in play in one, tois remand the case to allow the guidelines!)]” Maj. the Op. at 952. But district court to decide for itself whether statement, too, a simply statement Spears any would make difference to the of historical fact. That ratio is “in in play sentence appropriate the court thinks in because, the guidelines” in calculating the this case. guidelines, prior any consideration of vacated, Priester’s sentence is and the a varying, judge district necessarily takes case remanded for proceedings consistent the ratio into account. A district judge opinion. with this may vary categorically, but such a calcula- is, by terms, tion very its outside the BOGGS, Judge, Circuit dissenting. guidelines. Our judge faults the because he say “does not could [he] majority opinion While the acknowl- take play.” But, the ratio out of Ibid. in edges the problematic reversing nature of statement, the context of the judge the judge a district a Supreme because of cannot take the ratio out of play and still Court decision issued after judge the guidelines,” be “in the which is all that the ruled, 951), (Maj. Op. problem at that is a judge said. system. majori- inherent in our What the ty opinion admittedly calls “the record, unfair On this I tangled our believe. ground ibid., clairvoyance,” of insufficient case affirming. law mandates The rule we frequency, does occur with some and is not articulated in United States v. However, (6th a 348, basis for dissent. I Cir.2009), think 587 F.3d is that a problem there is more fundamental here. “when a district court observes that the perceived The flaw in the judge’s advisory provides Guidelines are no conduct was not in following legal princi- policy indication that disagreements are ple that rejected. the Court later proper not a vary, basis to then a sentence Instead, it (apparently) was in not realiz- within the range Guidelines remains pre ing that he needed to articulate on the sumptively appeal.” reasonable on The recognition power record his of a reversed, had cases in which we have United not explicitly by Johnson, (6th been sanctioned the Su- States v. Cir. preme 2009), Court. Spears Curb, See v. United and United States 625 F.3d States, 261, 840, 843-44, Cir.2010), 555 U.S. 129 S.Ct. are the exceptions that curiam). (per L.Ed.2d 596 To prove Contrary majority’s the rule. to the worse, make matters this failure reading, judge occurred the district in Johnson in a context clearly where no one asked made an erroneous statement that he did him to assert power. Spears Curb, such a not have In authority.1 said, 1st,” judg- 1. The district "in the Court’s of November and we noted that this ment, that, apply "suggested] although Court must as statement the dis- creating an infer- governing law and not before ratio was ence, in (“[S]enteneing[ unsupported by ] at 973 625 F.3d judge. [Kimbrough v. to de- declaring before himself unable occurred case]

[this by the categorical 128 S.Ct. advice offered cline the (2007)] guidelines. 169 L.Ed.2d clearly to the fore- ratio brought the 100:1 frequently true in these kinds of As is the minds front cases, problem entire would have been rule ‘express statement’ The courts.... appropriate with an very easy up to clear upon the dis- from Simmons predicated objection by defense counsel. Had brought before sen- being parity issue ma- really been what the point defense’s that it had in fashion so tencing court some be, jority takes it to it would been it.”). Neither to consider opportunity say, simple for defense counsel to either nor Curb fit Priester’s case. Johnson original objections quoted pages his short, our earlier in the context of fatal or after the court’s fail. As cases, claim should Priester’s (or response quoted page at 951-52 concede, crack- majority must even the inquiry in accordance proper the court’s judge and disparity cocaine was before Bostic, with only are guidelines recognized he Cir.2004)): honor, your “But we want fairly, starting point. The read you reject to the crack their any expression as to the is bereft totality, you anything and haven’t said reject categorically a judge’s that, you you think about and we fear don’t judgment reasoning or particular it.” power have the to do guidelines. is, competing it in this contest of As Sim- Thus, in line with our I believe that implications, inferences and mons, I hold that no adverse infer- would judge had the better silence, can be drawn from that ence no error. I conversation and committed judge that thus the district did not err. dissent. respectfully therefore majority rests on evading puz- of review. It is indeed the standard majority a favorable

zling draws opaque from defense counsel’s

inference ra-

statement that the one-hundred-to-one “unfair,” an treating

tio unreasonable- “procedural thereby avoiding rigors

ness” and Individually FRANK, and on at the same time Howard plain-error review—but similarly behalf of all others gives absolutely no credit to the district situated, Plaintiffs, court, singling out a correct recital court, ascertaining would parity whether the district issue was before the had power imposed the same sentence if he was aware of his not categorically vary vary categorically of his discretion to from the crack-cocaine known based on a policy disagreement from the crack-cocaine Guidelines Guidelines based on a policy disagreement.” In other words: Ibid. those Guidelines.” 553 F.3d at 996 n. with incorrect, but we don’t (emphasis quotation "we know he was in Johnson and internal omitted). made a difference.” I believe know if it marks Because way majority this "no of ascer- apparently Spears au- misconstrues not aware of his taining” language. thority, way we noted that "we have no

Case Details

Case Name: United States v. Priester

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 22, 2011

Citation: 646 F.3d 950

Docket Number: 08-2391

Court Abbreviation: 6th Cir.