Following Up on Yesterday: Holder Memo on Appeal

I just posted this note to the 6th Cir. blog.  It dovetails nicely with our panel training yesterday.

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Clemency . . . .

Yes, I just used the C word. 

It seems we may be looking at some sentence commutation.  And a group of organizations, including the Defender organization, NACDL, FAMM, and more, have formed Clemency Project 2014. 

BOP is going to be sending notice to inmates outlining the criteria for which the president is looking and telling inmates how to get assistance from the Clemency Project. 

If YOU would like to take a case, please contact Norman Reimer at clemencyproject@nacdl.org. 

The criteria IN BRIEF(!):
* Drugs (any kind).
* Would sentence be lower if imposed today?
* Long sentence, clean record in custody, not a public-safety threat, and more. . . .

Also, if you have represented someone that you think might be a candidate and want to explore the criteria and/or want to recommend them for review in this process, you can call the office at 616-742-7420 and I can send you more info.

More Blewett: Dissenting Opinions

I just posted on the 6th Cir. blog too. . . .  My week to blog there.

Judge Merritt's Blewett dissent:

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous.  Congress intended to remedy irrationality and disproportion.  Court is thwarting this effort. 
* Cites NACDL and NAACP amicus briefs. 
* "Practically all observers" now recognize the ills of the old system. 

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. 
* African-Americans treated more harshly than Caucasian offenders under this regime.  And  88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. 
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings.  Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." 

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro.  Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." 
* Not sure of procedural mechanism for relief. 
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law.  Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans."  This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless.  Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums."  More than 82% of this group is African-American (2005 stat).  The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race."  No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio.  In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums."  Won't cut it. 

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well.  In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule. 
* 3582(c)(2) = Congress's "background principle of retroactivity." 
* Illogical to provide GL relief and not statutory relief. 
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. 
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage.  But assumptions are not law.  Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be.  The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits.  (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute.  The revised statutory minimums are, after all, created by statute.  The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive.  Doing so provided the statutory key to making the statutory minimum changes applicable under 3582.  This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. 
Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence.  Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers. 
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act.  It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended.  Congress did not intend this irrationality, and that is why Judge Rogers is correct.  Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the  Equal Protection Clause absent rational justification other than finality."

Blewett Decided

I just posted this note to the 6th Cir. blog too. 

Well, the Sixth Circuit en banc released Blewett yesterday.  Get out your hankies.  This one's a tear jerker.

United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013).  The majority opinion is by Judge Sutton.  Judge Moore concurred.  Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. 

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." 

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot.  The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. 

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either. 

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it.  Not present in FSA, which is "forward looking." 
* Distinguishes Dorsey. 
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. 
* 3582(c)(2) does not help: these proceedings are not plenary resentencings. 
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. 
* Equal-protection and cruel-and-unusual arguments under the Constitution fail.  No racially discriminatory purpose, so disproportionate effect allowed to stand. 
* Gov "has a powerful interest in avoiding the disruption of final sentences." 
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted."  Such a holding might actually discourage lawmakers from lowering sentences. 
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. 
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations. 
* Sees issues with jurisdiction (the one defendant is now on supervised release).  No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits).  Nevertheless, she would deny the gov's motion to dismiss.  Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. 
* 1 USC 109 governs: no retroactivity. 
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed.  Crack-powder disparity = racial disparity.  And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. 

I will explore the dissent tomorrow. 

The Crack Plot Thickens

OK, yesterday, United States v. Doe was released.  No case #.  Panel of Judges Keith, Cole, and Rogers.  It's for publication and there's a concurrence by Cole and a dissent by Rogers.  The opinion is good:

 

"For the reasons stated above, we hold that applying the new [FSA crack] minimums in Defendant’s § 1B1.10(b)(1) calculation is the only way to give effect to Congress’s intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants—cooperative and uncooperative—are eligible for sentence reductions."

 

Defense counsel is likely to be able to surmise why the COA redacted. 

 

The crack issues swirl on. . . .

OK, These Cases Are Just Getting Confusing

OK, X (below) was good, but same day, United States v. Joiner, No. 12--4508 (6th Cir. Aug. 20, 2013) (for publication), comes out.  Judges Boggs, McKeague, and Beckwith (S.D. Ohio).  This latter opinion comes to the opposite conclusion from that expressed in X: the new FSA mand mins do not apply. 

Also on the same day, the COA filed an opinion-correction letter in X, a letter not available to the public.  So the X opinion has been "corrected," but not publically.  And the COA has allowed an extension of time for the gov to seek rehearing in X. 

So we wait. . . .

Lightening Strikes Twice: Blewett Revived!

OK, oral argument in Blewett set for Oct. 9.  In the meantime, we have United States v. X, No. X (6th Cir. Aug. 20, 2013) (for publication).  Panel of Judges Keith, Cole, and Rogers.  Judge Keith penned the lead opinion.  Judge Cole concurred.  And Judge Rogers dissented. 

 

Essentially, the defendant argued that the statutory mandatory minimums promulgated by the FSA applied to him, making him eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).  Court found that the defendant satisfied the first sentence-reduction eligibility requirement because his sentence had been based on the Guidelines.  The plea agreement had said that the parties agreed to recommend that the district court impose a sentence within the guideline range.  During the sentencing hearing, the district court had said that “[t]he parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory sentencing guidelines” and that “the appropriate sentencing range under the guidelines according to the sentencing table is 130 to 162 months.”  The district court started with the drug-quantity table in 2D1.1.  The court then relied on 3E1.1 and 5K1.1, cited in the plea agreement, to calculate the defendant’s advisory range as 130 to 162 months; the district court sentenced the defendant to 130 months.  This imposition of sentence pursuant to the plea agreement and derived from an advisory range under the Guidelines means the sentence was based on an advisory range.

 

COA then looked to 5G1.1 to consider impact of mandatory minimum.  The COA found that the section was silent as to which mandatory minimums to apply, and that the Supreme Court has not spoken on the issue.  

 

The court noted that under the gov's interpretation, defendants whose original advisory ranges were slightly above the old statutory floor, but who did not receive substantial-assistance downward departures, would be eligible for sentence reductions under § 3582(c)(2).  But defendants whose original ranges were at the statutory floor, who rendered substantial assistance, would not be eligible for reductions.  "Such perverse results are clearly inconcsistent with other Guidelines provisions."  Here, plugging the new mandatory minimums  and amended guidelines into the defendant's calculations would yield a sentence of 70 months instead of 130.  The court found that applying the new minimums "is the only way to give effect to Congress's intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants---cooperative and uncooperative---are eligible for sentence reductions." 

The COA distinguishes Carradine and Dorsey.  These two cases "stand for the proposition that defendants who were sentenced after August 3, 2010, [the FSA's effective date] were entitled to be sentenced under the new FSA minimums at their original sentencing hearings."  The COA here admonishes that 3582(c)(2) hearings are not plenary proceedings like the latter original sentencing hearings.  Carradine and Dorsey did not address the application of mandatory minimums in the 3582(c)(2) context. 

A reduction here would be consistent with Guidelines policy statements.  The applicable guideline range here "automatically incorporates the statutory minimums in the cocaine base sentencing statutes . . . via 1B1.1(a)(8), which interlocks with 5G1.1---the section of the Guidelines that incorporates the statutory minimums."  As the new minimums are the applicable minimums in the 1B1.10(b)(1) calculation, Amendment 750 lowers the applicable guideline range.  So a sentence reduction is consistent with the Sentencing Commission's policy statement in 1B1.10(a)(2)(B).  The statements in application note 1(a)(A) to 1B1.10 do not change this reasoning. 

The COA notes that "[e]ach time the Supreme Court has heard cases involving the FSA, it has expanded the class of defendants who are entitled to or eligible for the benefits of lowered penalties under the FSA." 

Judge Cole concurred:

He would resolve the case on narrower grounds.  The sentence here was based on a subsequently lowered guideline range, rather than a mandatory minimum.  But Judge Cole would hang his hat on the substantial assistance.  The 5K "effectively 'waived' the mandatory minimum and permitted the district court to impose a sentence based on [the] otherwise-applicable guideline range."  This approach "obviates the need to delve any further into the controversy surrounding the retroactive application of the Fair Sentencing Act."  Judge Cole would wait for the en banc Blewett proceedings before saying more. . . . 

Judge Rodgers dissented:

Notes that Blewett could be resolved with this opinion if the en banc court were to accept it.  Believes that at this time the panel is bound by Hammond.  Does not see substantial assistance as getting around this block. 

Drug GLs and Prior "Similar Offense"

United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.   

Ex Post Facto and GLs

United States v. Welch, No. 10-4025 (6th Cir. Aug. 2, 2012) (to be published).  Panel of Judges Merritt, Cook, and Cox (E.D. Mich.).

Counterfeiting case.

Two issues:

* Did dist ct violate Ex Post Facto Clause by calculating GLs with an amendment to 2B5.1 that went into effect b/t time of offense and sentencing, so defendant received a harsher sentence than would have applied at time of offense?

* Did dist ct err by not ordering fed sentence to run concurrently with undischarged state sentence (in contravention of 5G1.3(b))?

Conclusion:

* Remand necessary b/c Ex Post Facto Clause had been violated. 

Reasoning:

* COA considered whether the dist ct erred in using 2B5.1 instead of 2B1.1 to calculate offense level.  Usually, GLs in effect at time of sentencing apply.  2B1.1 had been standard.  2B5.1 had commentary excluding the D's offense.  But COA noted that 2B1.1 was not clearly applicable.  There was ambiguity, but most cts had been using 2B1.1. 

* In response to the confusion, Sentencing Commission had issued an amendment (731) that amended 2B5.1 to include explicitly the D's offense.  The amendment became effective Nov. 1, 2009.

* The D argued that using the amended version of 2B5.1, which took effect b/t the time of the offense and sentencing, violated the Ex Post Facto Clause. 

* If a revision to the GLs changes the legal consequences of an offense that occurred before the revision took effect---to the detriment of the D---the GLs in effect at the time of the offense must apply. 

* Here, 2B1.1 provided an offense level 5 levels lower than that under 2B5.1.  So there was an ex post facto violation. 

* The gov conceded the ambiguity of which GL section would apply, but argued that the amendment simply clarified what was always intended.  COA rejected this argument.  2B1.1 was the GL cts had been using.  And Commission did not label the amendment a "clarifying" amendment.  Rule of lenity had required using 2B1.1. 

* On the issue of concurrent or consecutive time, the COA used plain-error review b/c D had failed to object in dist ct.  5G1.3(b) did not apply b/c state conviction did not increase federal GLs.  Federal conduct was separate from the conduct that led to the state conviction (though both were counterfeiting offenses).  Dist ct properly exercised its discretion under 5G1.3(c). 

Two CP Decisions. . . .

United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Kennedy, Gibbons, and Kethledge.

CP case.  D appealed the special conditions of his supervised release.  Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal). 

D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time).  Police told of possible CP (contacted by another police department).  Police went to the residence and arrested the D for trespassing.  Searched home (to ensure no other trespassers present).  Seized D's property; said home scheduled for demolition and evidence could be destroyed.  Detective got a warrant and examined the electronic media.  Found CP. 

The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it.  Home was scheduled for demolition. 

D pleaded guilty.  Appellate waiver in plea agreement.  Agreement detailed several conditions the government would seek for supervised release.   

District court imposed a sentence of 30 months and 10 years of supervised release.  Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval. 

Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255.  Record not developed on direct appeal.  Unconditional plea means no review of the denial of the motion to suppress here.  As to the conditions of supervised release, the D waived his right to appeal them.  Even a lack of notice of one of the conditions did not jump the waiver hurdle.  A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions. 

*****

Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio). 

CP case.  GLs of 78 to 97 months.  District court gave the D one day in custody and 5 years of SR.  Sentence vacated as substantively unreasonable. 

Psych report indicated that the D was a low risk for recidivism (and other positive factors).  D was cooperative, lacked criminal history, went to counseling, and had a painful back condition. 

The government appealed the one-day sentence.  The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance.  The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases. 

The sentence was procedurally reasonable, but failed substantively.  Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation.  D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs.  Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'"  The other 3553(a) factors received too little attention from the district court.

The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012.  The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission."  Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography."  But this D collected his images over an extended period of time and paid to do so. 

The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review. 

"[E]xtraordinary circumstances may justify extraordinary variances or departures."  This finding seems to follow up on some of the problematic issues in Bistline. 

Rejecting a GL on Policy Grounds . . . More Spears

In United States v. Priester, No. 08--2391 (6th Cir. July 22, 2011) (published), the panel of Judges Boggs, Moore, and Kethledge considered the Spears issue again. Judge Boggs dissented.

The majority opinion starts out: "In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case." The defendant was sentenced pre-Spears. After parsing "the sentencing transcript, [the Court] agree[d] with [the appellant] that the district court appeared unaware of the authority that the Supreme Court expressly announced months later," that the court could vary from the guidelines based on policy reasons.

The Court found that the sentencing court's "comments go beyond mere silence as to whether the district court knew that it had the authority to reject the 100:1 ratio outright. Instead, they reflect an assumption that the court did not have that authority." The panel emphasizes that "The essence of

Spears’s holding is that a district court can take the 100:1 ratio out of play, up front, before even determining whether the ratio yields an overlong sentence in a particular case. Here, the district court expressly stated that the ratio was in play—and then the court moved on to other issues. To say, on this record, that the court silently recognized its later-announced authority in Spears, but chose not to exercise that authority, would be mere fiction."

The panel distinguishes prior cases: "In both United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Curb, 625 F.3d 968 (6th Cir. 2010), the district courts had been silent as to whether they had the authority later expressly granted to them in Spears. We remanded for resentencing in light of Spears. In United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), we affirmed the defendant’s sentence on plain-error review. There, the defendant did not make a Spears-type argument in the district court, and the district court itself said nothing about the issue. Neither of those circumstances is present here."

Judge Boggs's Dissent:

Judge Boggs concluded that "in the context of our earlier cases, [the appellant's] claim should fail. As even the majority must concede, the crack-cocaine disparity was before the judge and he recognized that the guidelines are only a starting point. The record, read fairly, is bereft of any expression as to the judge’s authority to reject categorically a particular judgment or reasoning in the guidelines."