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Crack defendant entitled to new sentence

Defendants sentenced for crack cocaine offenses as career offenders are entitled to resentencing, if circuit precedent at the time of their sentence barred the district judge from rejecting the disparity between crack and powder forms of the drug.

The defendant actually received a sentence below the guideline applicable to powder cocaine. Nevertheless, the Seventh Circuit held on Aug. 16 that he is entitled to resentencing, where he preserved the argument, and the district court didn’t say on the record that it would impose the same sentence even if it had the authority to disagree with the disparity.

James J. Brown Sr. pleaded guilty to possessing crack cocaine with the intent to distribute. He qualified as a career offender under the sentencing guidelines.

His sentencing range was 262-327 months. Had powder cocaine been involved, instead, the range would have been 151-188 months. The mandatory minimum was 120 months.

At sentencing in 2009, Brown requested that the district judge consider the crack/powder cocaine disparity as a factor, but the court was barred from doing so at the time, pursuant to U.S. v. Welton, 583 F.3d 494 (7th Cir. 2009).

In Welton, the court distinguished career offender sentences from garden-variety crack cocaine sentences, because the disparity was established by statute, sec. 28 U.S.C. 994(h), rather than merely by the guidelines.

U.S. District Court Judge Lynn Adelman imposed a sentence of 150 months, one month below the guideline range for powder cocaine. Judge Adelman cited a litany of factors for the below-guideline sentence, but not the crack/powder disparity.

Brown appealed, and the Seventh Circuit vacated the sentence, in an opinion by Judge Ann Claire Williams.

After Brown was sentenced, the Seventh Circuit overruled Welton in U.S. v. Corner, 598 F.3d 411 (7th Cir. 2010)(en banc), holding that a sentencing judge can consider policy disagreements with the crack/powder disparity, even when it sentenced a person with career offender status.

The decision in Corner requires that Brown’s sentence be vacated, the court concluded.

The government argued that, because Brown’s sentence was actually lower than the advisory guideline range for powder cocaine, the sentence should be affirmed. But the court disagreed.

“The problem with this argument,” the court wrote, “is that we have no way of knowing how the district court might have sentenced Brown had it known it could disagree with the crack/powder disparity inherent in the career offender guideline.”

Accordingly, the court adopted the same approach it had in similar situations regarding the guidelines.

After the Supreme Court held the guidelines advisory only, in U.S. v. Booker, 543 U.S. 220 (2005), and that a sentencing judge could disagree with the crack/powder disparity for policy reasons in non-career offender cases, in Kimbrough v. U.S., 552 U.S. 85 (2007), the Seventh Circuit remanded cases so that the sentencing judges could resentence defendants if they wished.

The court acknowledged that the sentencing court thoroughly discussed the relevant sentencing factors. But it did not address the disparity raised by Brown, because of the then-applicable precedent, and it made no statements suggesting that it would have imposed the same sentence even if it had the authority to disagree with the disparity.

Accordingly, the court concluded that the sentence must be vacated. And because Brown preserved the argument before the district court, it held he is entitled to a full resentencing, and not just a limited remand.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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