U.S. v. Williams, No. 05-13205.

• Decision Date: 13 December 2006
• Docket Number: No. 05-13205.
• Citation: 472 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Aaron Eric WILLIAMS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

472 F.3d 835

UNITED STATES of America, Plaintiff-Appellant, v. Aaron Eric WILLIAMS, Defendant-Appellee.

No. 05-13205.

United States Court of Appeals, Eleventh Circuit.

December 13, 2006.

Peggy Morris Ronca, Jacksonville, FL, for U.S.

George Allen Couture and Rosemary T. Cakmis, Fed. Pub. Defenders, Clarence W. Counts, Jr., Asst. Fed. Pub. Def., Orlando, FL, for Williams.

Appeals from the United States District Court for the Middle District of Florida (No. 04-00111-CR-ORL-31-JGG); Gregory A. Presnell, Judge.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

BY THE COURT:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.

BLACK, Circuit Judge, Concurring in the Denial of Rehearing En Banc, in which CARNES, MARCUS and PRYOR, Circuit Judges, join:

The decisions in United States v. Williams, 435 F.3d 1350 (11th Cir.2006), United States v. Williams, 456 F.3d 1353 (11th Cir.2006), and United States v. Pope, 461 F.3d 1331 (11th Cir.2006), correctly apply United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The decisions of this Circuit principally distinguish between varying from an advisory Guidelines range based on a case-specific, individualized application of the 18 U.S.C. § 3553(a) factors and varying from an advisory Guidelines range based on a categorical rejection of Congress's clearly expressed sentencing policy as embedded in the Guidelines and in its statutes. The latter amounts to error, while the former falls within the scope of the district court's discretion intended by Booker.

The cases of this Circuit cited above all deal with the 100-to-1 powder cocaine-to-crack cocaine ratio codified in 21 U.S.C. § 841(b)(1)(B) and embedded in U.S.S.G. § 2D1.1. Our evaluation of these cases naturally requires a thorough understanding of the district court's role in sentencing post-Booker and the history of the powder-to-crack cocaine ratio before we can apply that understanding to the three cases cited above and to the dissent to the denial of rehearing en banc in this case.

A. The District Court's Role in Sentencing Post-Booker

Under our constitutional system, the power to define penalties for federal crimes belongs to Congress, not the judiciary. United States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 636, 92 L.Ed. 823 (1948). The judiciary is not free, generally, to replace a congressional policy with one it deems superior. See, e.g., Neal v. United States, 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996); Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

Congress created the Sentencing Commission under its power to define penalties for federal crimes, using a sentencing guidelines scheme to limit judicial discretion. Of course, Congress's authority in this area is not without limitation. In United States v. Booker, the Supreme Court held that mandatory sentencing enhancements triggered by judge-found facts violate a defendant's constitutional right to a trial by jury. 543 U.S. at 244, 125 S.Ct. at 756. To solve the constitutional problem, the Court excised the statutory provision that made the Sentencing Guidelines mandatory, thereby rendering them advisory. Id. at 244-46, 125 S.Ct. at 756-57.

Rendering the Guidelines advisory, however, does not permit unfettered judicial discretion. District courts must still "consult [the] Guidelines and take them into account when sentencing." Id. at 264, 125 S.Ct. at 767. Moreover, Booker cabined judicial discretion by grounding it in the 18 U.S.C. § 3553(a) factors.¹ Id. at 261, 125 S.Ct. at 766. These factors serve to guide district courts in applying their newly found discretion in individual cases, and to promote greater uniformity in sentencing decisions. Id. at 263-64, 125 S.Ct. at 766-67.

After the Booker decision, sentencing now requires two steps. First, the district court must correctly calculate the applicable sentencing range provided by the Sentencing Guidelines. United States v. McVay, 447 F.3d 1348, 1353 (11th Cir. 2006). Second, the district court must determine a reasonable sentence by considering the sentencing range provided by the Guidelines and the § 3553(a) factors. Booker, 543 U.S. at 264, 125 S.Ct. at 767; United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005).

B. The Powder Cocaine-to-Crack Cocaine Ratio

The 100-to-1 cocaine-to-crack ratio directly reflects clearly expressed, unambiguous congressional sentencing policy, which Congress embedded in the U.S. Code and is reflected in the Guidelines.² Following 21 U.S.C. § 841(b)(1)(B), which Congress enacted in 1986, the Guidelines have always treated 1 gram of crack cocaine the same as 100 grams of powder cocaine. In 1995, the Sentencing Commission proposed amendments that would have abandoned the 100-to-1 ratio and equated the sentences for powder cocaine and crack cocaine, while leaving in place the different mandatory minimum sentences that are beyond the Sentencing Commission's reach. Congress, however, passed, and the President signed, legislation rejecting the amendments. Act of Oct. 30, 1995, Pub. L. 104-38, 109 Stat. 334. In 1997, the Commission again issued a report asking Congress to change the statute or to allow district courts discretion over sentences exceeding the statutory minimum. Congress took no action. United States Sentencing Comm'n, Cocaine and Federal Sentencing Policy (1997). In 2002, the Commission still again recommended that Congress reduce the ratio. United States Sentencing Comm'n, Cocaine and Federal Sentencing Policy (2002). Congress once again took no legislative action.

Arguing the 100-to-1 ratio reflected in the Guidelines is not Congress's policy but the Sentencing Commission's policy alone ignores Congress's repeatedly expressed policy judgment. In determining the threshold quantities for the statutory sentencing ranges in 21 U.S.C. § 841(b), Congress decided on a 100-to-1 ratio, and the Sentencing Commission followed Congress's decision to avoid creating sentencing disparities. See §§ 841(b)(1)(A)(ii), (iii) (applying the same penalties to offenses involving 5 kilograms or more of cocaine powder and offenses involving 50 grams or more of crack cocaine); §§ 841(b)(1)(B)(ii), (iii) (applying the same penalties to offenses involving 500 grams or more of cocaine powder and offenses involving 5 grams or more of crack cocaine).

Congress realized gross sentencing disparities would occur if it accepted the Sentencing Commission's proposal to equate the drugs for Guidelines purposes. H.R.Rep. No. 104-272, at 4 (1995), as reprinted in 1995 U.S.C.C.A.N. 335, 337. For example, if Congress affirmed the Sentencing Commission's recommendations and either equated the drugs or used a different ratio in the Guidelines than it used in setting its statutory minimums and maximums, defendants whose offenses involved the same drug but different amounts near the threshold drug quantity for a mandatory minimum sentence would receive markedly different sentences depending on whether the amounts met the threshold for a mandatory minimum or whether the amounts fell just short. Rationally, Congress rejected the Commission's proposals to equate the two drugs, mandating the 100-to-1 ratio. To do otherwise would have undermined its statutory objective of avoiding unwarranted disparities in sentences. Congress ensured its sentencing policy was reflected clearly in the Guidelines.

After Booker, some district courts concluded they were free to disagree openly with this clearly expressed, unambiguous congressional sentencing policy embedded in the Guidelines and in the U.S. Code. Their sentencing decisions fell into three categories. Some district courts recalculated the Guidelines range with a lower cocaine-to-crack ratio. See United States v. Pho, 433 F.3d 53 (1st Cir.2006). Other district courts calculated the Guidelines range correctly, but then varied from the range based on categorical rejections of the congressional policy behind the cocaine-to-crack ratio without looking at the case-specific, individualized facts pertinent to each defendant. See United States v. Miller, 450 F.3d 270 (7th Cir.2006). Finally, some district courts couched their disagreement with the cocaine-to-crack ratio in the language of the § 3553(a) factors, but did so without indicating any case-specific, individualized reasons a factor required either an upward or downward variance from the advisory Guidelines range. See United States v. Eura, 440 F.3d 625 (4th Cir.2006).

This final category presents the most problems. The determination of the gray area between case-specific, individualized facts and generalized rejections of unambiguous congressional policy will naturally involve an extensive review of the record.

Although each Circuit to address the cocaine-to-crack ratio in the Guidelines has approached the issue differently, in large part because the cases have had different factual and procedural backgrounds, these Circuits have all agreed that a district court is not at liberty to vary from an advisory Guidelines range because of a categorical rejection of congressional sentencing policy regarding the 100-to-1 ratio. The Circuits allow variances only for case-specific, individualized reasons grounded in the § 3553(a) factors. United States v. Williams, 456 F.3d 1353 (11th Cir.2006) (holding the district court's rejection of the 100-to-1 drug quantity ratio cannot be justified); United States v. Gunter, 462 F.3d 237, 249 (3d Cir.2006) (suggesting a court categorically rejecting "the 100:1 ratio and substitut[ing] its own . . . is verboten"); United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.2006) (...