United States v. Curtis James Hudson , 429 F. App'x 870 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10894 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 9, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cr-00056-CAR-CWH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CURTIS JAMES HUDSON,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 9, 2011)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Curtis Hudson pled guilty to two counts of a
three-count indictment: possession with intent to distribute more than five grams
of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(B)(iii) (Count One), and
possession of a firearm after being convicted of a felony, in violation of 18 U.S.C.
§ 922(g) (Count Three). The district court sentenced Hudson to concurrent prison
sentences: 145 months on Count One,1 and 120 months on Count Three. He now
appeals his sentences.2
First, Hudson argues that the district court infringed his constitutional rights
to due process and equal protection of the laws by applying the Guidelines
sentence range for crack cocaine, which is higher than the sentence range for
powder cocaine, in fashioning his Count One sentence. Second, Hudson argues
that Count One sentence is procedurally and substantively unreasonable because
the district court afforded de facto mandatory treatment to the guideline for crack
cocaine, failed to give due consideration to the 18 U.S.C. § 3553(a) sentencing
factors, failed to explain the sentence pursuant to 18 U.S.C. § 3553(c), and did not
sentence him based on a “1-to-1” crack-to-powder cocaine ratio.
I.
1
The sentence range prescribed by the Guidelines for the Count One offense was 130-
162 months’ imprisonment.
2
Hudson appeals both sentences. The grounds for reversal, however, apply only to the
Count One sentence. Therefore, in this opinion, our discussion is limited to the Count One
sentence, although our disposition affirms the district court’s entire judgment, i.e., both
sentences.
2
We review constitutional claims de novo. United States v. Tagg, 572 F.3d
1320, 1325 (11th Cir. 2009). Under the rational basis test, “a law does not violate
equal protection so long as [it is] rationally related to a legitimate government
interest.” United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006)
(quotation omitted).
We have rejected an equal protection challenge to the “100-to-1”
crack-to-powder cocaine sentencing disparity in the Sentencing Guidelines.
United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992). After King, the
Sentencing Commission promulgated Amendment 706, which took effect on
November 1, 2007, and amended the Drug Quantity Table in Sentencing
Guidelines § 2D1.1(c). U.S.S.G. App. C, Amend. 706. The effect of Amendment
706 was to provide a two-level reduction in base offense levels for certain crack
cocaine offenses. See id.; United States v. Mills, 613 F.3d 1070, 1075 (11th Cir.
2010). In explaining the reasoning for Amendment 706, the Commission noted
that it had “updated its analysis of key sentencing data about cocaine offenses and
offenders,” based on scientific literature; trends in trafficking patterns, price, and
use; state drug laws; and relevant case law. U.S.S.G. App. C, Amend. 706,
Reason for Amendment. It concluded that there was an “urgent” and “compelling”
need to correct problems associated with the “100-to-1” crack-to-powder cocaine
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ratio, and that Amendment 706 was “an interim measure” to correct those
problems. Id.In Kimbrough, the Supreme Court noted that a number of Congressional
concerns that led to the “100-to-1” disparity rested on discredited assumptions
about crack cocaine. Kimbrough v. United States, 552 U.S. 85, 95-98, 128 S.Ct.
558, 567-68, 169 L.Ed.2d 481 (2007). In holding that district courts may depart
from the crack cocaine guidelines based on their disagreement with the crack-to-
powder cocaine disparity, the Court noted that “the Commission itself has reported
that the crack/powder disparity produces disproportionately harsh sanctions, i.e.,
sentences for crack cocaine offenses ‘greater than necessary’ in light of the
purposes of sentencing set forth in § 3553(a).” Id. at 110, 128 S.Ct. at 575. Even
so, the Court noted that the Commission’s most recent reports acknowledged that
“some differential” in treatment was warranted. Id. at 98, 128 S.Ct. at 568.
The Fair Sentencing Act (“FSA”), signed into law on August 3, 2010,
changed the crack-to-powder ratio from 100:1 to about 18:1. See Pub.L.No 111-
220, 124 Stat. 2372. The Act amended the sentencing provisions in 21 U.S.C. §
841(b)(1) by raising from 50 grams to 280 grams the amount of crack cocaine
necessary to trigger a 10-year mandatory minimum sentence, and raising the
amount from 5 to 28 grams necessary to trigger a 5-year mandatory minimum. Id.4
§ 2(a)(1)-(2). However, because the FSA took effect in August 2010, the
punishment of crimes committed before August 2010 is not affected by the Act
pursuant to 1 U.S.C. § 109. See United States v. Gomes, 621 F.3d 1343, 1346
(11th Cir. 2010) (holding that § 109 bars the FSA from affecting the punishment
of a defendant who had committed the crime before the FSA took effect).
The district court’s consideration of the crack cocaine guidelines did not
deny Hudson equal protection of the law, even after the developments set forth
above. While the Supreme Court noted in Kimbrough that the Sentencing
Commission viewed Amendment 706 as “‘only . . . a partial remedy,’” it also
noted that the Commission supported a ratio in excess of “1-to-1.” Furthermore,
Hudson was not sentenced based on a 100:1 ratio; rather, he was sentenced based
on guidelines that had a crack/powder ratio of between 25:1 and 80:1. Finally, in
King, we rejected the argument that the crack/powder disparity denied equal
protection of the law, and under the prior precedent rule, we are “bound to follow
a prior binding precedent unless and until it is overruled by this [C]ourt en banc or
by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236
(11th Cir. 2008) (quotation omitted). In sum, the district court did not err in
applying the crack cocaine guidelines to Hudson.
II.
5
We review a sentence for reasonableness. United States v. Winingear, 422
F.3d 1241, 1245 (11th Cir. 2005). The reasonableness standard means review for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,
169 L.Ed.2d 445 (2007). We review de novo whether a sentence is procedurally
reasonable based on the sufficiency of the district court’s explanation under
§ 3553(c)(1). United States v. Ghertler, 605 F.3d 1256, 1261-62 (11th Cir. 2010).
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the Guidelines, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to adequately explain the chosen sentence. Gall,
552 U.S. at 51, 128 S.Ct. at 597.
The § 3553(a) factors include (1) the applicable guideline sentence range;
(2) the nature and circumstances of the offense; (3) the history and characteristics
of the defendant; (4) the need for the sentence imposed to reflect the seriousness
of the offense, promote respect for the law, and provide just punishment for the
offense; (5) the need for adequate deterrence to criminal conduct; (6) protection of
the public from further crimes of the defendant; and (7) the need to avoid
unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
In imposing a sentence, the court must state its reasons for the sentence. 18
6
U.S.C. § 3553(c). There is no requirement under § 3553(c) that the court
explicitly reveal its consideration of each of the § 3553(a) factors on the record, as
long as the court “set[s] forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356,
127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). In a “typical” case involving a
sentence within the advisory guideline sentence range, “the district court is not
required to give a lengthy explanation for its sentence.” United States v. Livesay,
525 F.3d 1081, 1090 (11th Cir. 2008); see also United States v. Ellisor, 522 F.3d
1255, 1278 (11th Cir. 2008) (stating that we have “held that a court’s explicit
acknowledgment that it has considered a defendant’s arguments and the § 3553(a)
factors is sufficient to demonstrate that it has adequately and properly considered
these factors”).
Once we conclude that the district court made no procedural errors, we then
consider “the substantive reasonableness of the sentence,” under the totality of the
circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The weighing of § 3553(a)
factors is within the court’s discretion, so long as the court has made no clear error
of judgment. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc) (reviewing government appeal of downward variance).
7
The Supreme Court previously considered the sentence of a defendant who
had been sentenced under the November 1, 2004, version of the Guidelines and
was affected by the “100-to-1” ratio then in effect. Kimbrough, 552 at 91, 92 n.2,
128 S.Ct. at 564, 565 n.2 (2007). In Kimbrough, the Court held that “it would not
be an abuse of discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” such that
district courts possess the authority to deviate from the “100-to-1” ratio. Id. at
110, 128 S.Ct. at 575. However, the “ultimate question” still is whether the
sentence is reasonable. Id. at 111, 128 S.Ct. at 576.
Hudson’s Count One sentence is procedurally reasonable. The district court
did not treat the Guidelines as de facto mandatory, because (a) it explicitly
acknowledged that the Guidelines were advisory, (b) it stated that it was not bound
to apply the Guidelines, and (b) it stated that it was deciding not to vary downward
based on its unanswered questions about why the Sentencing Commission has still
not definitively decided how to resolve the crack/powder disparity. Additionally,
the court expressly stated that it had considered the § 3553(a) factors and
demonstrated that consideration by discussing the nature of the underlying offense
and the sentencing disparity between crack and powder cocaine. By finding that
8
the § 3553(a) factors and the totality of the circumstances justified Hudson’s
sentence, the court provided an explanation sufficient to allow for meaningful
appellate review. Accordingly, the court committed no procedural error.
Hudson’s 145-month sentence was substantively reasonable because it was
supported by the § 3553(a) factors. The court balanced Hudson’s arguments for
mitigation based on the disparity between crack cocaine and powder cocaine
sentences against the Government’s argument that a departure was not warranted
because of Hudson’s significant criminal history. Moreover, the record reflects
that the court gave due consideration to mitigating factors because Hudson’s
sentence fell in the middle of the crack-cocaine guideline sentence range—which
already addressed the sentencing disparity to some degree in light of Amendment
706—and was substantially below the statutory maximum term of 40 years’
imprisonment.
AFFIRMED.
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