On Appeal from the United States District Court for the Western District of Pennsylvania (Criminal No. 06-cr-00072) District Judge: Honorable Maurice B. Cohill.
The opinion of the court was delivered by: Ellis, Senior District Judge.
Submitted Under Third Circuit LAR 34.1(a) January 9, 2009
Before: CHAGARES, HARDIMAN Circuit Judges, and ELLIS, Senior District Judge.*fn1
Cleotis Eugene Russell, Jr. appeals his 87-month sentence following a guilty plea, arguing (i) that the District Court erred in concluding it was barred from categorically rejecting the Sentencing Guidelines' crack-powder cocaine differential on policy grounds; (ii) that the District Court erred in giving the Sentencing Guidelines presumptive weight; (iii) that Russell's 87-month sentence is substantively unreasonable; and (iv) that the District Court erred in including a misdemeanor marijuana possession conviction in Russell's criminal history calculation. For the reasons stated here, we vacate and remand for resentencing.
The essential facts are easily summarized and are not in dispute.
On August 21, 2007, Russell pled guilty to four counts of possession with intent to distribute five grams or more of cocaine base, commonly known as "crack cocaine," in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The presentence investigation report (PSR) calculated Russell's total offense level as 27 and his criminal history category as III, resulting in an advisory Guidelines range of 87 to 108 months.
Prior to sentencing, Russell filed a sentencing memorandum urging imposition of a 60-month sentence, the statutory mandatory minimum. Specifically, Russell sought a variance under 18 U.S.C. § 3553(a), on the ground, inter alia, that the Guidelines' 70-to-1 powder-to-crack cocaine ratio for his base offense level-one of the highest such ratios for any base offense level-failed to reflect the seriousness of his offense or to promote respect for the law. In this regard, Russell noted that "if [his] guidelines were calculated using a 25-to-1" ratio, the bottom end of his advisory Guidelines range would be 60 months.*fn2 Accordingly, given the disparity between the different powder-to-crack ratios for different base offense levels, Russell argued that an advisory guideline range in his case would be "irrational and unreasonable" and that the District Court should exercise its § 3553(a) discretion to impose a 60-month sentence.
At the November 28, 2007, sentencing hearing, Russell reiterated his request for a variance, arguing that the 60-month mandatory minimum sentence was appropriate, inter alia, (i) because the calculation of base offense levels using the "varying crack[-]powder ratios" was not a "rational way to treat the differences between crack cocaine and powdered cocaine[,]" (ii) because Russell had not previously been incarcerated, and (iii) because the instant offense did not involve weapons or violence.
The District Court rejected Russell's request for a variance, holding that "in this case" it was appropriate to look to the advisory Guidelines range of 87 to 108 months. During the course of its ruling, the District Court cited United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), stating that "in Ricks the Third Circuit held that the district courts may not categorically reject the crack/powdered cocaine differential as a matter of policy" and that "to the extent district courts may consider the crack/powder cocaine differential, they should not do so by creating a new ratio altogether." The District Court went on to observe as follows:
But I think the [Third Circuit is] telling us the guidelines are still important; and I'm one of the judges who didn't ever like the guidelines from the time they were promulgated. I always did - I appreciated them and felt that it did serve to give some consistency to the - to the various sentences which are handed down by federal courts across the country; so I appreciated them and rarely do I depart from them, either in one direction or the other direction.
Following allocution, the District Court imposed a 87-month sentence, consistent with the bottom end of ...