U.S. v. Tabor

• Decision Date: 10 July 2008
• Docket Number: No. 05-2169.,05-2169.
• Citation: 531 F.3d 688
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David TABOR, also known as Country, also known as Big Country, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

531 F.3d 688

UNITED STATES of America, Plaintiff-Appellee, v. David TABOR, also known as Country, also known as Big Country, Defendant-Appellant.

No. 05-2169.

United States Court of Appeals, Eighth Circuit.

Submitted: February 20, 2008.

Filed: July 10, 2008.

Sean Joseph Brennan, Lincoln, NE, for appellant.

Sara E. Fullerton, Assistant U.S. Attorney, Lincoln, NE, for appellee.

Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

This case was vacated and remanded to us by the United States Supreme Court for reconsideration in light of Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Tabor v. United States, ___ U.S. ___, 128 S.Ct. 1060, 169 L.Ed.2d 801 (2008). After reconsideration of Tabor's appeal as directed by the Supreme Court, we affirm his conviction for conspiracy to distribute and possess with intent to distribute fifty grams or more of a mixture or substance containing cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. Consequently, we reinstate Parts I, II, and III of our prior panel opinion as unaffected by Kimbrough. United States v. Tabor, 439 F.3d 826 (8th Cir.2006). We do not reinstate Part IV of the panel opinion affirming Tabor's sentence because we conclude that his sentence should be reversed and the case remanded to the district court for re-sentencing in light of the Supreme Court's holding in Kimbrough.

On appeal, Tabor argues that the district court erred when it refused to consider that the crack cocaine Guidelines were "irrational" and resulted in "unfair and disparate sentences as compared to sentences for powder cocaine." Tabor, 439 F.3d at 830. Specifically, he urged the district court to vary from the advisory Guidelines range and impose a lower sentence. Instead, the district court imposed a sentence of 200 months in a written order filed April 18, 2005. United States v. Tabor, 365 F.Supp.2d 1052, 1062 (D.Neb.2005). This sentence was near the bottom of the advisory sentencing range of 188 to 235 months.

I.

Like all versions prior to the recent amendments, the Guidelines in effect at Tabor's sentencing advised that "a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine." Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007); USSG § 2D1.1(c) (drug quantity table) The crack/powder cocaine disparity was long criticized, but an attempt in 1995 by the Sentencing Commission to eliminate the disparity was blocked by Congress. Kimbrough, 128 S.Ct. at 569. Despite continued urging by the Commission to lessen the disparity, Congress took no action except to direct the Commission to propose revisions of the drug quantity ratio. Id. Finally, last year the Commission adopted "modest" changes to the Guidelines that reduced "the base offense level associated with each quantity of crack by two levels." Id.; Amendments to the Sentencing Guidelines for United States Courts, 72 Fed.Reg. 28558, 28572-574 (May 21, 2007). This time, however, Congress did not exercise its power to block the amendments, and the changes became effective on November 1, 2007. Kimbrough, 128 S.Ct. at 564. There still exists a disparity between crack and powder cocaine ranges, but the disparity is no longer based on the 100-to-1 quantity ratio. Id. at 573 (explaining that the quantity disparity is now variable and ranges between 25-to-1 and 80-to-1); id. at 569 n. 10 (explaining that the 100-to-1 ratio still exists when the amount of cocaine base is either five or fifty grams because those amounts trigger mandatory minimum sentences effected by Congress, which were derived using the 100-to-1 ratio).

These facts set the stage for Kimbrough, and in late 2007 the Supreme Court held that a district court may vary from the advisory sentencing range solely on the basis of its disagreement with the extent of the crack/powder disparity if it concludes that the "disparity yields a sentence `greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case." Id. at 575 (quoting 18 U.S.C. § 3553(a)). Tabor's sentencing occurred much earlier, however, on April 18, 2005. United States v. Tabor, 365 F.Supp.2d 1052, 1052 (D.Neb.2005). It followed by only a few months the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (Jan. 12, 2005), which rendered the Guidelines "effectively advisory," id. at 245, 125 S.Ct. 738, and instructed appellate courts to review a sentence for reasonableness, id. at 261, 125 S.Ct. 738. With very little guidance in the way of post-Booker jurisprudence, the district court was called upon by Tabor to vary from his advisory sentencing range on the basis of the crack/powder disparity. Tabor, 365 F.Supp.2d at 1054. The sentencing judge declined the invitation in a thoughtful written order. He explained that he had two reasons for not varying from the crack cocaine Guidelines despite his personal disagreement with them. Id. at 1059 n. 9. His principal reason was deference to Congress's intent; he wrote, "As a judge, I should defer to the choice of penalties that Congress has made for crack cocaine even though I would quickly do something different if it were within my proper role to choose." Id. at 1060. His second reason was based on the fear that without the crack cocaine Guidelines there was no rational basis by which a sentencing judge could choose which alternative sentencing structure to apply. Id. at 1060-61 (noting that at various times several different reforms have been proposed, including setting the Guidelines based on a ratio at 1-to-1, 10-to-1, and 20-to-1). On that point, he wrote that if sentencing judges were free to vary from the crack cocaine Guidelines simply on the basis of the disparity, "a bunch of different standards for crack sentencing" would emerge despite his opinion that "judges lack the institutional capacity (and frankly, the personal competence) to set and then enforce one new, well-chosen, theoretically coherent, national standard." Id. at 1061. Consequently, the district court found that its disagreement with the extent of the crack/powder disparity was not an appropriate basis for a variance.

In our original review of Tabor's appeal, we did not address the correctness of this conclusion. Rather, we concluded that a sentence within the crack cocaine Guidelines was not inherently unreasonable. Tabor, 439 F.3d at 831 (although we did say that the district court did not neglect to consider a relevant factor). A few months later, however, our court did consider whether the disparity could form the basis of a variance from the Guidelines. United States v. Spears 469 F.3d 1166 (8th Cir.2006) (en banc), vacated and remanded by ___ U.S. ___, 128 S.Ct. 858, 169 L.Ed.2d 709 (2008), reinstated and aff'd in part and rev'd in part on remand by, ___ F.3d ___, Nos. 05-4468 & 06-1354, 2008 WL 2485329 (8th Cir. June 23, 2008) (en banc). We answered that question in the negative, stating, "Congress has elected not to revise the 100:1 quantity disparity between powder cocaine and crack cocaine" and we "must defer to Congress" on the issue. Id. at 1178. In Spears, we identified the same concerns that troubled the sentencing judge in this case: judicial contravention of Congressional intent, id. at 1177-78, and the likelihood that different sentencing judges would adopt different crack/powder cocaine ratios, id. at 1176.

In the intervening year, the Supreme Court has rejected the view that these concerns prohibit a district court from granting a downward variance on the basis of the crack/powder disparity. First, Kimbrough rejected the argument that Congress intended the 100-to-1 crack/powder ratio to form the basis for the crack cocaine Guidelines. 128 S.Ct. at 571 (rejecting the argument that Congress's use of the same ratio as the basis for its mandatory minimums evidenced such an intent); id. at 572-73 (rejecting the argument that Congress approved of the 100-to-1 ratio when it rejected prior efforts by the Sentencing Commission to revise the ratio). And second, it dismissed the concern that different sentencing judges would adopt disparate approaches to the crack cocaine Guidelines, stating that "possible variations among district courts are constrained by the mandatory minimums" and that "ongoing revision of the Guidelines in response to sentencing practices will help to avoid excessive sentencing disparities." Id. at 574 (internal quotation marks omitted). Further, it noted that appellate review of whether a sentence is reasonable will help achieve a broad uniformity, even if it cannot replicate the more exact uniformity sought by the Guidelines. Id. at 573. The Supreme Court in Kimbrough squarely considered the two concerns the sentencing judge found crucial in this case, and it held that they did not preclude a variance based on disagreement with the 100-to-1 ratio.

II.

With this history in mind, we now turn to considering Tabor's appeal within the framework of appellate sentencing review. We review a defendant's sentence for "both the procedural soundness of the district court's decision and the substantive reasonableness of the sentence imposed." United States v. Merrival, 521 F.3d 889, 890 (8th Cir.2008). Procedural sentencing acts are those acts the district court must take to aid it in crafting an appropriate sentence, Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (such as giving the parties an opportunity to argue for the appropriate sentence, properly calculating the Guidelines, treating the Guidelines as advisory, considering each of the § 3553(a) factors, and selecting facts that are not clearly erroneous), or those acts the district court takes to aid appellate review of its sentence, id. (a district court must "adequately explain the chosen sentence")....