This сase crystalizes the difficulties confronted by defendants — and district court judges — as they navigate the turbulent waters of
Booker
and its aftermath.
See United States v. Booker,
Russell now appeals that sentence, contending that it is not reasonable. While his appeal was pending before us, the Supreme Court decided
Kimbrough
v.
United States,
— U.S.-,
I.
Russell was charged with possession with intent to distribute cocaine base in excess of fifty grаms, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). 1 He entered a guilty plea pursuant to a plea agreement, stipulating that the quantity of cocaine base involved in the offense and related conduct totaled 233.74 grams. In exchange, the government agreed to recommend the lowest prison term within the applicable guideline range, advocate for either a two- or three-level decrease for acceptance of rеsponsibility, and refrain from filing for a sentence enhancement under 21 U.S.C. § 851 and seeking an official victim enhancement under § 3A1.2 of the sentencing guidelines.
At the plea colloquy, the government reviewed the factual basis for the plea. On March 8, 2003, local police learned that a man fitting Russell’s description was planning to sell crack at a McDonald’s restaurant in Cranston, Rhode Island. At the scheduled time, Russell arrived at the McDonald’s parking lot in a car driven by a woman. Police officers approached both sides of the car and removed the driver. As this was happening, Russell reached over from the passenger seat and drove the car forward and backward in an attempt to escape. Three officers were struck by the car, and the police ultimately opened fire on the car to stop it. Russell was carrying 141.24 grams of crack cocаine in his pocket. At the colloquy, Russell also admitted to selling additional quantities of crack cocaine, totaling 92.5 grams, to undercover officers on three prior occasions in late 2002 and early 2003.
At the first sentencing hearing, held on August 27, 2004, the district court calculated Russell’s applicable guideline sentencing range. 2 Based on the stipulated drug quantities, Russell’s base offense level was set at 34. The court found that a three-level reduction for timely acceptance of responsibility and a two-level victim-related enhancement for reckless endangerment, pursuant to § 3C1.2, were appropriate, yielding a total offense level of 33. Russell’s 13 criminal history points placed him in Criminal History Category (“CHC”) VI, producing a guideline sentencing range of 235 to 293 months.
Russell objected to the two-level enhancement for reckless endangerment on the ground that, in light of
Blakely v. Washington,
*9 Russell appealed his first sentence based on the Blakely issue. However, while the aрpeal was pending, the Supreme Court decided Booker and the government conceded that a remand was required for resentencing under an advisory guideline regime. We accepted that concession and remanded.
In his written submissions and at the second sentencing hearing, held on October 28, 2005, Russell asked the court to impose a 120-month sentence — the applicable mandatory minimum. Russell asserted that a 120-month sentence would better serve the interest of rehabilitation than the much longer guideline sentence. He also claimed that his criminal history score was overstated and argued that the 100:1 ratio for crack versus powder cocaine embedded within the sentencing guidelines was unjust. The government countered by highlighting Russell’s long list of adult arrests and convictions and noting that the three short prison sentences he had served previously had not deterred his criminal conduct. Thе government also contended that “it should be left to Congress, not the Courts, to modify or even abrogate in its entirety the sentencing distinctions between crack cocaine and powder cocaine,” and noted that if different district courts used different ratios to calculate post- Booker sentences for crack cocaine, substantial sentencing disparities would arise. The government advocated for the reimpo-sition of а 235-month sentence.
The district court stated its categorical disagreement with the 100:1 ratio in the sentencing guidelines. The court stated that a 20:1 ratio, which would have produced a 151- to 188-month guideline range in Russell’s case, should be used to guide the application of the advisory guidelines. The court then considered the § 8553 factors and imposed a sentence of 151 months.
Russell appealed this sentence, arguing that it was unreasonable even though it was substantially below the applicable guideline sentencing range. The government cross-appealed, arguing that the district court’s categorical rejection of the 100:1 ratio violated our holding in
United States v. Pho,
Russell filed a motion to continue his third sentencing pending the Supreme Court’s decision in
Claiborne v. United States,
— U.S. -,
Russell then filed this appeal, claiming that his sentence was unreasonable. While the appeal was pending, the Supreme Court decided Kimbrough. Russell argues that the Kimbrough decision further supports his contention that his 180-month sentence was unreasonably high. The government counters by asserting that the district court anticipated the holding in Kimbrough and properly considered all of the relevant factors in making the individualized determination called for by § 3553(a). 6 We agree.
II.
“We review the substantive reasonableness of a sentence for abuse of diseretion, but we first consider whether the court below committed a ‘significant procedural error, such as ... treating the Guidelines as mandatory.’ ”
United States v. DeCologero,
A. Pho and Kimbrough
In
Pho,
we held that “the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for a 100:1 ratio embedded in the sentencing guidelines.”
In
Kimbrough,
the Supreme Court reversed a Fourth Circuit decision that had taken a far more restrictive approach than we had in
Pho.
The Fourth Circuit had held that “a sentence ‘outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.’ ”
Kimbrough,
Although the
Kimbrough
Court listed
Pho
as one of the circuit court decisions that had taken the view that a “sentencing court may not impose a sentence outside the Guidelines range based on its disagreement with the crack/powder disparity,”
Kimbrough,
As we recently explained, “the
Kimbrough
Court’s organic reading of section 3553(a) suggests that a sentencing judge should engage in a ... holistic inquiry,” by considering “a tapestry of factors, through which runs the thread of [the] overarching principle” of parsimony.
United States v. Rodriguez,
*12 B. Russell’s Third Sentencing Hearing
The question, then, is whether the district court avoided procedural error at Russell’s third sentencing hearing by properly considering all of the relevant factors—including the crack/powder disparity—in making its § 3553(a) determination that a 180-month sentence was “sufficient, but not greater than necessary” in this particular case. Our review of the transcript reveals no error.
At the hearing, the district court began by addressing its rationale for denying Russell’s motion for a continuance, explaining that Pho did not substantially constrain its discretion:
So the reason that I really felt that, on that ground, that I wasn’t inclined to grant the motion is that I feel that we have a substantial discretion to impose a non-guideline sentence, and what Pho said really was that district courts should not get into the business of defining a, sort of a uniform or across-the-board policy basis with respect to those kinds of sentences, but rather should be doing them on a casе-by-case basis, but sort of left open, I think very clearly left open [to] the discretion of the district court to formulate a sentence that is whatever the Court feels is a reasonable sentence.
This view of Pho is, as we noted above, consistent with the Supreme Court’s later holding in Kimbrough. Indeed, we think that the district court here presciently anticipated the guidance that the Court would provide in Kimbrough. Later in the hearing, the court stated:
[W]e have been told by the Court of Appeals that the аpplication of a rigid 20-to-l ratio was error and that that’s not the way to go about doing these sentences. And I think I’ve said before, and sort of reflecting on this over the last few years, I think the Court of Appeals was probably right about that. And as to the policy part of it, I think that our job is to look at these cases on a real case-by-case basis and try to come up with a sentence that is appropriate.
The court clearly—and correctly—believed that it had the authority to consider the crack/powder disparity as one factor in that case-by-case analysis. Referencing the proposed amendments to the crack sentencing guidelines, the court explained:
The history of these amendments is that Congress has rejected them, although there’s some reason to believe they would accept this one. But, again, as I’m looking at it, I’m inclined to think that you can argue, I suppose, that this is further evidence that the guideline range in this case is not reasonable. And you might have a lot of arguments that sort of fit into that—a number of arguments that you would make in order to say it’s not reasonable, including various statements of the Sentencing Commission about crack cocaine sentences over the last few years, and this would just be an additional item to support that argument.
From my point of viеw, I feel that I’ve got the discretion to put all of that into the basket and try to figure out what a reasonable sentence is under the advisory guideline system.
So once again, I’m not sure I need to see that amendment either be adopted or not be adopted in order to figure out, from my point of view, what I think a reasonable sentence is.
The court concluded that a reasonable sentence for Russell was 180 months, 29 months longer than the 151-month sentence that the court had imposed at the second sentencing but still well below the bottom of Russell’s guideline sentencing range.
*13 Given the court’s understanding of the discretion it retained after Pino in fashioning an individualized sentence, Russell’s contention that the constraints of Pino produced the longer sentence at his third sentencing is untenable. Rather, the court explained that it had “undervalued” other factors at Russell’s second sentencing. The court dеscribed being “struck” by-three factors in reviewing the case:
One is that I think the quantity of cocaine here was pretty substantial. And there were several transactions, not just one. The amount of money involved was substantial, and I think these facts pointed to your role as a dealer as somewhat more substantial than other defendants that I’ve seen....
The second thing that struck me is that the Government did not file an 851 enhancement 8 in this case, which it certainly could have....
And then the third thing that struck me was thаt, in rereading the facts of the case, was the attempt to escape and the fact that three officers were hit by the car, the fact that this all occurred at a McDonald’s restaurant, a busy place. There could have been children running around. And I think that’s a disturbing fact, even perhaps more disturbing is the fact that the police officers had to fire their weapons in response to the attempt to escape.
Thеse three factors led the court to conclude that “a somewhat greater sentence than what [it had] previously imposed is appropriate.” Thus, the record of Russell’s third sentencing hearing reveals that the district court considered the crack/cocaine disparity as well as a host of other individualized factors in reaching a holistic assessment of the sentence called for by § 3558. We perceive no procedural error.
C. Substantive Reasonableness
Having satisfied ourselves that the sentence is procedurally sound, we proceed “to review the substantive reasonableness of the sentence, taking into account the totality of the circumstances ... [and giving] ‘due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ”
United States v. Martin,
Russell points to two factors that he contends should have driven his sentence even lower. First, he argues that the district court did not adequately consider the crack/powder disparity in arriving at his sentence. However, we have no reason to question the adequacy of the size of the downward departure the district court granted on the basis of the disparity here. The record of all three sentencing hearings, read together, suggests that there were no other substantial mitigating factors that could explain the significant downward variance here. At the second sentencing hearing, the only factor the court discussed that would lead to a below-guideline sentence was the crack/powder disparity. Similarly, at the third sentencing hearing, the only mitigating factors specifically referenced by the court were the history of proposed amendments to the crack/powder ratio in the guidelines and the “yo-yo effect with respect to sentenсing” that Russell had had to endure as a result of the several remands in the case. Thus, it appears that the crack/powder disparity accounts for the bulk of the fifty- *14 five-month downward variance in Russell’s sentence.
Second, Russell contends that the district court failed to adequately account for his personal circumstances in the third sentencing. He describes those personal circumstances as having “limited education and employment opportunities, marijuana and alcohol addictions, and a young child.” We fail to see how this vague description places Russell so far from “the mine-run of criminal defendants,”
see Martin,
Affirmed.
Notes
.At the plea colloquy, the government characterized the drugs as "cocaine basе or crack cocaine” and used these two terms interchangeably.
. These guideline calculations have remained consistent throughout the three sentencing hearings in this case.
. The court also sentenced Russell to five years of supervised release, with special con *9 ditions requiring that he seek full-time employment and participate in a substance abuse program. These conditions remained consistent through eаch of the three sentenc-ings and Russell has not challenged them here.
.
Claiborne
was vacated as moot when the defendant died. - U.S. -,
. The Sentencing Commissiоn’s alteration to the guidelines became effective on November 1, 2007, reducing the base offense level associated with each quantity of crack by two levels.
Kimbrough,
. The government also argues that any procedural error was harmless beyond a reasonable doubt because it is unlikely that the district court would impose a lower sentence if the case were remanded. Because we conclude that there was no error, we need not address the government's harmless error analysis. Also, the plain error analysis we applied in our recent decision in
United States v. Matos,
. The Supreme Court vacated our decision in Pho, along with the decisions of other circuits that the Supreme Court deemed incompatible with Kimbrough. We obviously accept that decision. We remanded Pho to the district court for resentencing in light of the Supreme Court’s decision. However, our fidelity to the decisions of the Supreme Court does not preclude us from expressing reservations about the Supreme Court’s characterization of one of our decisions.
. If the government had filed an information under 21 U.S.C. § 851 stating a prior drug felony conviction, Russell would have been subject to an increased statutory mandatory minimum sentence of 20 years. See 21 U.S.C. §§ 841(b)(1)(A), 851(a).