U.S. v. Crawford

• Decision Date: 28 March 2008
• Docket Number: No. 06-30205.,06-30205.
• Citation: 520 F.3d 1072
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio Feliciano CRAWFORD, aka Tone; aka T; aka Tom, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 1072

UNITED STATES of America, Plaintiff-Appellee, v. Antonio Feliciano CRAWFORD, aka Tone; aka T; aka Tom, Defendant-Appellant.

No. 06-30205.

United States Court of Appeals, Ninth Circuit.

Submitted March 14, 2008.^*

Filed March 28, 2008.

Kathleen Moran, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for defendant-appellant.

George J.C. Jacobs, III, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CR-02-00272-WFN.

Before BETTY B. FLETCHER, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Antonio Feliciano Crawford raises a number of sentencing issues that have now been answered by the spate of recent sentencing decisions by the Supreme Court and this court. We affirm his 210-month sentence for distribution of heroin and crack cocaine.

FACTUAL AND PROCEDURAL BACKGROUND

Crawford was convicted by a jury of two counts of distribution of heroin and distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 210 months' imprisonment, six years of supervised release, a $1,000 fine and a $100 special penalty assessment. The district court found that he was a "career offender" under United States Sentencing Guidelines § 4B1.1. The court calculated Crawford's original offense level as 34 and applied a two-level reduction for acceptance of responsibility. The sentence was at the bottom of the applicable Guidelines range of 210 to 262 months.

Crawford's conviction was affirmed on direct appeal in June 2004. See United States v. Crawford, 102 Fed.Appx. 91 (9th Cir.2004) (unpublished). Several weeks later, and before our mandate issued, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which held that in the context of mandatory state sentencing guidelines, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. After Blakely, Crawford asked us to recall our previous mandate. While this motion was pending, the Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), where it held, among other things, that the Sentencing Guidelines were merely advisory, not mandatory, and that appellate courts should review sentences for "reasonableness." In August 2005, we vacated Crawford's sentence and remanded his case for re-sentencing in light of Booker and pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Crawford, 422 F.3d 1145 (9th Cir.2005) (order).

New counsel was appointed for Crawford and the parties re-briefed the sentencing issues. The district court held another sentencing hearing and imposed the same sentence as before. Crawford appealed his re-sentencing, but his case and others were deferred pending resolution of United States v. Carty, 462 F.3d 1066 (9th Cir.2006) (order),¹ which itself was deferred until after the Supreme Court decided several sentencing cases, among them Rita v. United States, 551 U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (holding that appellate courts may presume the reasonableness of within-Guidelines sentences), and Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007) (holding that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard). On the same day it decided Gall, the Court held in Kimbrough v. United States that the Guidelines for crack cocaine, like all others under Booker, wee advisory only, and "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder [cocaine] disparity yields a sentence `greater than necessary' to achieve [18 U.S.C] § 3553(a)'s purposes, even in a mine-run case." Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007). Crawford's sentence was within the Guidelines, and so we can now decide his appeal based on Rita and United States v. Carty, 520 F.3d 984, Nos. 05-10200, 05-30120 (9th Cir. filed March 24, 2008) (en banc) (declining to adopt a "presumption" of reasonableness for within-Guidelines sentences, but recognizing that a correctly calculated Guidelines sentence "will usually be reasonable").

Analysis

Crawford raises three issues on appeal: (1) whether the Sentencing Commission's policy statements should be given more weight than the Guidelines for crack cocaine sentences because the Commission's reports are supported by empirical evidence, while the Guidelines were based on unproven assumptions; (2) whether the district court procedurally erred in offering comments concerning the view that the Guidelines are presumptively reasonable and whether it failed to consider the sentencing factors set forth in 18 U.S.C. § 3553(a); and (3) whether the district court erred in finding that Crawford was a career offender. We deal with each issue in turn.

A. SENTENCING DISPARITY BETWEEN CRACK AND POWDER COCAINE

Crawford argues that the reports by the Sentencing Commission are supported by empirical research, while the Guidelines are based on speculations that "ha[ve] never held up to objective scrutiny," and consequently, a district court should give more weight to the Commission's reports and less weight to the Guidelines. Although the Supreme Court has since validated Crawford's view, see Kimbrough, 128 S.Ct. at 575 ("In formulating Guidelines ranges for crack cocaine offenses, ... the Commission ... did not take account of `empirical data and national experience.' Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions ... for crack cocaine offenses...." (citations omitted)), Kimbrough does not help Crawford's case because he conceded during his re-sentencing hearing that the disparity does not actually affect his sentencing level. The judge asked during the hearing, "[a]ssuming the court is correct that[Crawford] qualifies as a career offender, if the conviction had been for powder instead of crack, wouldn't we be in the same place?," to which Crawford's counsel responded by acknowledging that the base offense level calculation would be the same regardless of the powder cocaine versus crack cocaine distinction. Thus Kimbrough is unavailing to Crawford's cause.

B. REASONABLENESS OF SENTENCE AND APPLICATION OF § 3553(A) FACTORS

1. Post-Rita and Carty reasonableness analysis

Crawford argues that the district court erred in imposing a sentence within the Guidelines after declaring its view that such sentences are presumptively reasonable. Though the Supreme Court in Rita held that appellate courts may presume that a sentence is reasonable when a district court judge's discretionary decision accords with the sentence the Sentencing Commission deems appropriate in most cases, the Court emphasized that such a presumption was limited to the standard on appeal. See Rita, 551 U.S. at ___, 127 S.Ct. at 2465 ("We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate `reasonableness' review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review." (emphasis in original) (citing Booker, 543 U.S. at 259-60, 125 S.Ct. 738)); Gall, 128 S.Ct. at 596-97; Carty, 520 F.3d at ___ (the district court may not presume that the Guidelines range is reasonable).

The district court here did not presume the reasonableness of a Guidelines sentence with respect to Crawford's case but, rather, presciently forecasted Rita's holding, while citing to Booker and acknowledging other circuits that had already adopted the rule Rita would eventually espouse:

[W]e all recognize that now, the sentencing guidelines are advisory. They're not mandated. We are required to consult them, calculate — the career offender provision under Chapter 4 of the guidelines is advisory.... But as I've said before and I'll say now, in view of the Booker/Fan Fan cases, which require us to look at the guidelines, consult them, calculate the appropriate guideline sentence, that the standard of review on appeal is reasonable if the court feels that — and some of the circuits have said — specifically held that a guideline sentence, unless there's some real reason to vary from it, is presumptively reasonable; and I think that that makes sense.

This statement must be viewed in the context of the entire sentencing hearing. We must distinguish the district court's comment on some circuits' adoption of the presumption for appellate review, a statement made in passing, from the thorough process the court went through in determining the appropriateness of Crawford's sentence, which was done within the framework established by Booker and reinforced by Rita, Gall, and Kimbrough. See Kimbrough, 128 S.Ct. at 574 (the Guidelines are "the `starting point and the initial benchmark'" (quoting Gall, 128 S.Ct. at 596)); Gall, 128 S.Ct. at 596-97 n. 6 (the Guidelines are to be kept in mind throughout the process); Carty, 520 F.3d at ___ (all sentencing proceedings are to begin by determining the applicable Guidelines range, which must be calculated correctly, and the Guidelines should be kept in mind throughout the process). The district court neither misapprehended the sentencing framework nor adopted a presumption of reasonableness.

2. Application of § 3553(a) factors

To comply with the requirements of Booker, a district court must sufficiently consider the Guidelines, as well as the other factors listed in § 3553(a). The district court here more than met Booker's requirements. The sentencing colloquy...