United States v. Reginald Davis ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-4101, 06-4376 & 07-1813
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RMEAN K NOX, A NTHONY K NOX,
AND R EGINALD D AVIS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-CR-818—Amy J. St. Eve, Judge.
A RGUED S EPTEMBER 18, 2008—D ECIDED JULY 20, 2009
Before E ASTERBROOK, Chief Judge, and S YKES and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Defendants Reginald Davis,
Anthony Knox, and Armean Knox 1 made a deal to buy
fourteen semi-automatic handguns for the bargain price
1
For clarity, we will refer to the Knox defendants as “An-
thony” and “Armean.”
2 Nos. 06-4101, 06-4376 & 07-1813
of 2 1/4 ounces of crack cocaine. As their unfortunate
luck would have it, the seller was an undercover agent.
After being arrested on various drugs and weapons
charges, each defendant pleaded guilty to conspiracy to
distribute more than 50 grams of crack. On appeal, the
defendants raise several challenges to the reasonable-
ness of their sentences, including that Kimbrough v.
United States, 128 S. Ct. 558 (2007), entitles them to
resentencing.
I. Background
A. Facts
On three separate occasions between June and Septem-
ber 2004, Davis sold between one-quarter and one-half
ounces of crack cocaine to an undercover agent with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”). During
each of these meetings, Davis expressed an interest in
purchasing handguns from the agent. At the third
meeting, Davis introduced the agent to Anthony, and the
two defendants negotiated a deal to pay $2000 cash for
one .45-caliber and thirteen .38-caliber guns. Armean
also met the agent at this meeting when he delivered the
crack for purchase.
On September 9, 2004, Davis and Armean met with the
agent again to discuss the guns purchase, and the agent
suggested that the defendants pay for the guns with 2
1/4 ounces of crack instead of $2000 cash. Davis and
Armean readily agreed to this payment term, since,
according to the defendants, that quantity of crack was
Nos. 06-4101, 06-4376 & 07-1813 3
worth only about $1000 to $1400. Davis indicated that he
could easily supply the requested 2 1/4 ounces, telling the
agent that “if you want two and a split that’s nothing.”
During this meeting, Davis called Anthony, who also
agreed to the change in payment.
On September 16, 2004, Anthony and Armean delivered
61.5 grams 2 of crack to the agent in exchange for the
fourteen guns. ATF agents arrested Anthony and
Armean on site immediately after they received the
guns, and Davis was later arrested in December 2004.
The government obtained an indictment charging
Davis, Anthony, and Armean with one count of con-
spiracy to possess with intent to distribute and to distrib-
ute more than 50 grams of crack cocaine, in violation
of 21 U.S.C. § 846, and several counts of intentionally
distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Additionally, the indictment charged Anthony
and Armean each with one count of being felons in posses-
sion of firearms, in violation of 18 U.S.C. § 922(g)(1). The
indictment also charged Davis with conspiring with
another individual to possess with intent to distribute
and to distribute more than five grams of crack cocaine,
but the government later dismissed the charges against
that individual. The defendants pleaded guilty without
plea agreements. Each defendant pleaded guilty to the
conspiracy to distribute more than 50 grams of crack
cocaine, and Anthony and Armean pleaded guilty to
the firearms possession counts. The government subse-
2
61.5 grams equals 2.17 ounces.
4 Nos. 06-4101, 06-4376 & 07-1813
quently dismissed all of the distribution counts against
the defendants and the other conspiracy count against
Davis.
B. Sentencing Proceedings
The defendants were sentenced between December 2006
and March 2007. Under the Sentencing Guidelines, Davis
qualified as a career offender based on three of his prior
felony drug convictions, see U.S.S.G. § 4B1.1(a), resulting
in a criminal history category of VI and an offense level
of 37, see id. § 4B1.1(b)(A) (applying an offense level
of 37 for offenses with statutory maximums of life im-
prisonment); 21 U.S.C. § 841(b)(1)(A)(iii) (imposing a
maximum sentence of life imprisonment for drug
offenses involving 50 grams or more of crack). After a
three-level reduction for acceptance of responsibility,
see U.S.S.G. § 3E1.1, Davis’ total offense level was 34,
yielding an advisory guidelines sentencing range of 262-
327 months. This sentencing range was higher than what
Davis would have received had he been sentenced as a
non-career offender under the drug-offense guideline,
§ 2D1.1; although Davis’ criminal history category was
VI even before the application of § 4B1.1, his offense level
was higher under § 4B1.1.
At his sentencing hearing, Davis asked for a below-
guidelines sentence based on the Guidelines’ 100:1 dispar-
ity between sentences for crack- and powder-cocaine
Nos. 06-4101, 06-4376 & 07-1813 5
offenses,3 the ATF agent’s use of sentencing entrap-
ment and manipulation, and Davis’ cooperation with the
government. Davis also presented substantial evidence
of his unstable childhood and his family’s history of
substance abuse, as well as expert testimony of Davis’
mental illness.
The district court dismissed Davis’ argument based on
the severity of the crack/powder disparity, citing then-
binding circuit precedent precluding the court from
relying on that disparity as a basis for imposing a sen-
tence below the guidelines range. See United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006), abrogated by Kimbrough
v. United States, 128 S. Ct. 558 (2007). The court also
rejected Davis’ claims of sentencing entrapment, sentenc-
ing manipulation, and cooperation with the govern-
ment. The court did, however, give substantial credit
to Davis’ evidence of his difficult childhood and history
of mental illness. Concluding that these factors made it
reasonable to deviate from the Guidelines, the court gave
Davis a below-guidelines sentence of 220 months.
3
Under the drug-offense guideline applicable at the time of the
defendants’ sentencing hearings, an offense involving a given
quantity of crack triggered the same sentencing range as an
offense involving 100 times that quantity of powder cocaine.
See U.S. Sentencing Comm’n, Guidelines Manual § 2D1.1(c)(4)
(2005) (applying equal base offense levels to drug offenses
involving 50 grams of crack and 5 kg of powder cocaine). The
Sentencing Commission has since amended the drug-offense
guideline to reduce this crack/powder disparity. See
U.S.S.G. app. C, amend. 706 (Supp. 2007), available at http://
www.ussc.gov/2007guid/appc2007.pdf.
6 Nos. 06-4101, 06-4376 & 07-1813
Anthony, like Davis, qualified as a career offender
under § 4B1.1, resulting in a criminal history category of VI
and an offense level of 37. After a three-level reduction
under § 3E1.1 for acceptance of responsibility, Anthony’s
total offense level was 34, yielding an advisory guide-
lines sentencing range of 262-327 months. As in Davis’
case, this sentencing range was higher than what Anthony
would have received under § 2D1.1 as a non-career of-
fender; although Anthony’s criminal history category
was VI even before the application of § 4B1.1, his
offense level was higher under § 4B1.1.
At the sentencing hearing, Anthony argued for a below-
guidelines sentence based on the severity of the Guide-
lines’ 100:1 crack/powder disparity and the ATF agent’s
use of sentencing manipulation. The district court did not
accept these arguments and imposed a minimum-guide-
lines sentence of 262 months.
Armean, unlike his co-defendants, did not qualify as a
career offender; his sentence for the drug offense was
determined by § 2D1.1. Because the guns purchase in-
volved a quantity of crack between 50 and 150 grams,
Armean’s base offense level was 32.4 After a two-level
enhancement for the possession of a dangerous weapon,
4
A base offense level of 32 resulted from the district court’s
correct application of the drug quantity table of § 2D1.1 that
predated the Sentencing Commission’s 2007 amendment of
that guideline. Under the current version of § 2D1.1, a crack
quantity between 50 and 150 grams corresponds to a base
offense level of only 30. See U.S.S.G. § 2D1.1(a)(3), (c)(5).
Nos. 06-4101, 06-4376 & 07-1813 7
see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction
for acceptance of responsibility under § 3E1.1, Armean’s
total offense level was 31. His criminal history category
was IV, yielding an advisory guidelines sentencing
range of 151-188 months. The district court imposed a
guidelines sentence of 165 months.
C. Arguments on Appeal
On appeal, all three defendants argue that the district
court should have considered the Guidelines’
crack/powder disparity as a basis for reducing their
sentences. They claim that the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558, 564 (2007),
which held that the disparity is advisory and therefore
within a district court’s discretion to consider, entitles
them to resentencing. Davis and Anthony also argue that
the district court failed to sufficiently address their sen-
tencing entrapment and manipulation claims. Finally,
Davis raises several additional challenges to the reason-
ableness of his sentence, which we describe in greater
detail below.
II. Analysis
We review the district court’s sentencing decisions for
an abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Clanton, 538 F.3d 652, 659
(7th Cir. 2008). After ensuring that the district court
committed no procedural error such as failing to
properly calculate the guidelines range or consider the
8 Nos. 06-4101, 06-4376 & 07-1813
sentencing factors of 18 U.S.C. § 3553(a), we examine the
substantive reasonableness of the sentence. Gall, 128 S. Ct.
at 597; Clanton, 538 F.3d at 659. In determining whether
a guidelines sentence is reasonable, the district court
should consider all of the § 3553(a) factors and “make
an individualized assessment based on the facts pre-
sented.” Gall, 128 S. Ct. at 597.
A. The Impact of Kimbrough and the Crack/Powder
Disparity on Career Offenders
1. The Effect of Kimbrough on Davis’ and
Anthony’s Sentences
After the defendants in this case were sentenced,
the Supreme Court held in Kimbrough v. United States,
128 S. Ct. 558, 564 (2007), that district courts may con-
sider the crack/powder disparity embedded in the drug-
offense guideline, § 2D1.1, as a basis for choosing a below-
guidelines sentence. The Court explained that a district
court may generally consider policy disagreements
with the advisory Guidelines, provided that the court
does not disregard statutes such as mandatory mini-
mums and maximums. See id. at 570-71. Since the Guide-
lines’ crack/powder disparity does not result from a
congressional mandate, see id. at 571-72, “it would not
be an abuse of discretion for a district court to conclude”
that the disparity “yields a sentence ‘greater than neces-
sary’ to achieve § 3553(a)’s purposes . . . .” Id. at 575.
Before Kimbrough, our circuit precedent prevented
district courts from considering the crack/powder
Nos. 06-4101, 06-4376 & 07-1813 9
disparity as a basis for choosing a below-guidelines
sentence. See United States v. Miller, 450 F.3d 270, 274-75
(7th Cir. 2006). To correct the prejudicial effects of Miller,
we have established remand procedures for crack
offenders sentenced prior to Kimbrough. Offenders who
did not raise a challenge to the crack/powder disparity
at sentencing are entitled to a limited remand,
allowing the district court to indicate whether it would
have selected a different sentence had it known of its
discretion under Kimbrough. United States v. Taylor, 520
F.3d 746, 747-49 (7th Cir. 2008). Offenders who did chal-
lenge the disparity at sentencing are entitled to a full
remand and resentencing. Clanton, 538 F.3d at 659.
We have previously granted these remands only to
offenders sentenced under the drug-offense guideline,
§ 2D1.1, as opposed to the career offender guideline,
§ 4B1.1. See id. at 659-60. Although career offenders are
subject to a 100:1 crack/powder sentencing disparity,
that disparity does not originate in the advisory drug-
offense guideline at issue in Kimbrough. Instead, it is the
operation of mandatory statutes that subjects career
offenders to the policy of harsher sentences for crack-
cocaine offenses. Congress has directed that career of-
fenders convicted of offenses “described in” certain,
enumerated statutes, including 21 U.S.C. § 841, be sen-
tenced “at or near the maximum term authorized” for
the offense. 28 U.S.C. § 994(h)(1)(B). To implement this
directive, the career offender guideline prescribes base
offense levels that track the statutory maximums of the
offense of conviction. U.S.S.G. § 4B1.1(b). For convic-
tions of drug offenses under 21 U.S.C. § 841, the
10 Nos. 06-4101, 06-4376 & 07-1813
applicable statutory maximums treat a given quantity of
crack cocaine the same as 100 times that quantity of
powder cocaine for sentencing purposes. See 21 U.S.C.
§ 841(b)(1)(A)(ii)-(iii) (imposing a maximum sentence of
life imprisonment for drug offenses involving both 50
grams of crack and 5 kg of powder cocaine). It is this
statutory penalty provision, incorporated into the Guide-
lines pursuant to another statute, 28 U.S.C. § 994(h),
wherein the 100:1 crack/powder disparity affecting
career offenders lies.
Relying on the statutory origin of the crack/powder
disparity embedded in § 4B1.1, we held in United States
v. Harris, 536 F.3d 798, 813 (7th Cir. 2008), that Kimbrough
had no effect on a career offender’s sentence. We
reasoned that, although a sentencing disparity might
occur under § 4B1.1 based on the type of cocaine
involved, that disparity “is the product of a discrepancy
created by statute.” Id. at 812-13. “While the sentencing
guidelines may be only advisory for district judges,
congressional legislation is not.” Id. at 813; see also United
States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009)
(“Kimbrough’s discussion of a district court’s discretion
to take into account the crack/powder disparity is of no
consequence to a defendant sentenced under § 4B1.1 as a
career offender.”); Clanton, 538 F.3d at 660 (“[A] sentence
entered under the career offender guideline, § 4B.1.1, raises
no Kimbrough problem . . . .” (quoting Harris, 536 F.3d
at 813)).
Given our holding in Harris, it may seem that Davis
and Anthony, both career offenders sentenced under
Nos. 06-4101, 06-4376 & 07-1813 11
§ 4B1.1, are not entitled to resentencing in light of
Kimbrough. However, these defendants cite United States
v. Liddell, 543 F.3d 877 (7th Cir. 2008), in support of their
argument that a district court may rely on the
crack/powder disparity as a basis for imposing a sen-
tence below the career offender guidelines range. After
being sentenced as a career offender, Liddell argued on
appeal that the district court should have considered the
severity of the crack/powder disparity. Id. at 880, 882.
Citing Harris, the court first noted that Liddell’s argu-
ment was problematic because the only crack/powder
disparity that affected his sentence under § 4B1.1 was the
product of a statute. Id. at 882-83. Nonetheless, the
court then recognized what it called the defendant’s
“more nuanced” argument of whether a district court
“can consider the disparity as a reason for issuing a
below-guideline sentence.” Id. at 883. This contention
was ultimately rejected because Liddell did not raise it
below, and any error by the district court in failing to
consider his Kimbrough challenge was not plain. Id. at 883,
885; see also United States v. Hearn, 549 F.3d 680, 684 (7th
Cir. 2008) (rejecting the defendant’s “more nuanced
argument based on Kimbrough” under a plain-error stan-
dard of review (quoting Liddell, 543 F.3d at 883)).
Liddell is difficult to reconcile with Harris, but it is not
necessary to resolve the tension between these cases
today because Davis and Anthony are entitled to
resentencing for a reason not present in either case. Unlike
the defendants in Harris and Liddell, the defendants
in this case pleaded guilty to conspiracy under 21 U.S.C.
§ 846 but not to the substantive offense under 21 U.S.C.
12 Nos. 06-4101, 06-4376 & 07-1813
§ 841. See Harris, 536 F.3d at 802 (conviction of distrib-
uting crack cocaine under § 841(a)); Liddell, 543 F.3d at
879 (guilty plea to possession with intent to distribute
under § 841(a)). It is true that drug distribution or posses-
sion with the intent to distribute was the object of the
Knox and Davis conspiracy, but that is of no con-
sequence here. As mentioned above, the congressional
directive that career offenders be sentenced “at or near”
the statutory maximum applies only to certain,
enumerated offenses of conviction. 28 U.S.C. § 994(h).
Although substantive distribution offenses under § 841
are among the listed offenses, conspiracy offenses under
§ 846 are not. Id. § 994(h)(1)(B). Moreover, the precision
with which § 994(h) includes certain drug offenses
but excludes others indicates that the omission of § 846
was no oversight.
Section 994(h)(1)(B) provides a narrow list of drug
offenses that require the “at or near the maximum” career
offender treatment, including distribution under § 841,
importation of certain controlled substances under 21
U.S.C. § 952(a), and manufacturing and distributing on
board vessels under 46 U.S.C. § 70503. The statute also
omits several significant drug offenses, including the
use of a communication facility to facilitate a drug
offense under 21 U.S.C. § 843(b) and simple possession
under 21 U.S.C. § 844. Perhaps the best example of the
statute’s precision is the inclusion of only those importa-
tion offenses involving the most harmful drugs. Section
994(h) includes 21 U.S.C. § 952(a), which prohibits the
importation of schedule I and II controlled substances
and narcotic drugs under schedules III, IV, and V, but
Nos. 06-4101, 06-4376 & 07-1813 13
carefully excludes 21 U.S.C. § 952(b), which prohibits
the importation of nonnarcotic schedule III, IV, and V
substances.
Also telling is § 994(h)’s inclusion of a conspiracy
offense other than § 846. The statute incorporates all
maritime drug offenses “described in . . . chapter 705 of
title 46.” 28 U.S.C. § 994(h)(1)(B). That chapter includes,
among other things, a penalty provision for “attempts and
conspiracies” to manufacture controlled substances on
board vessels. 46 U.S.C. § 70506(b). If Congress wanted to
include the Controlled Substances Act’s analogous § 846
conspiracy provision, it knew how to do so. And simply
reading § 846 offenses into § 994(h) would undermine
Congress’s intent to exclude certain drug offenses from
the statute’s reach. Since § 846 prohibits any attempt or
conspiracy “to commit any offense defined in this
subchapter,” incorporating § 846 into § 994(h) would
include through the back door as the object of a con-
spiracy substantive drug offenses, such as simple posses-
sion of a controlled substance in violation of 21 U.S.C.
§ 844, that Congress specifically omitted from the “at
or near the maximum” directive.
Based on the deliberate manner in which § 994(h)
includes specific drug offenses but excludes others,
Congress did not intend to include § 846 offenses
among those requiring sentences “at or near” the
statutory maximum. Because § 846 is not included in
this statutory mandate, § 994(h) does not limit a district
court’s discretion under Kimbrough to consider the
crack/powder disparity affecting a career offender con-
victed under § 846.
14 Nos. 06-4101, 06-4376 & 07-1813
True, the career offender guideline itself draws no
distinction between § 841 and § 846 offenses for sentencing
purposes. U.S.S.G. § 4B1.2 cmt. n.1 (defining the drug
offenses qualifying for career-offender treatment to
include “the offenses of aiding and abetting, conspiring,
and attempting to commit such offenses”). Relying on
its “general guideline promulgation authority under
28 U.S.C. § 994(a)-(f),” the Sentencing Commission has
gone beyond the specific offenses listed in § 994(h) and
included § 846 conspiracy offenses in § 4B1.1. U.S.S.G.
§ 4B1.1 cmt. bkgd. Courts have repeatedly recognized
that this exercise of the Commission’s authority under
§ 994 was valid. E.g., United States v. Damerville, 27 F.3d 254,
257 (7th Cir. 1994); United States v. Mendoza-Figueroa, 65
F.3d 691, 693-94 (8th Cir. 1995) (en banc). Indeed, the
Senate Report to § 994(h) provides that the statute is
“not necessarily intended to be an exhaustive list of
types of cases in which . . . terms at or close to
authorized maxima should be specified.” S. Rep. No. 98-
225, at 176 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,
3359; see also Mendoza-Figueroa, 65 F.3d at 694 (relying
on legislative history to conclude that § 994(h) “is ample
authority to include drug conspiracies as qualifying
offenses”). Moreover, since the statutory penalties for
conspiracy offenses under § 846 and substantive offenses
under § 841 are the same, the Commission had good
reason to go beyond the specific mandate of § 994(h) and
include conspiracy offenses in the career offender guide-
line. Damerville, 27 F.3d at 257; United States v. Jackson,
60 F.3d 128, 133 (2d Cir. 1995).
Still, although the Commission had the authority to
include drug conspiracy offenses under § 846 in the
Nos. 06-4101, 06-4376 & 07-1813 15
career offender guideline, nothing in the text of § 994(h)
requires the Commission to do so. See Damerville, 27 F.3d
at 257 (“Section 994(h) provides the minimum obligation
of the Commission and does not prohibit the inclusion
of additional offenses that qualify for such treatment.”);
United States v. Piper, 35 F.3d 611, 618 (1st Cir. 1994)
(explaining that only those offenses listed in § 994(h)
comprise “the irreducible minimum that the Commission
must do by way of a career offender guideline”);
United States v. Heim, 15 F.3d 830, 832 (9th Cir. 1994) (“The
Commission’s decision to go beyond the mandate of
§ 994(h) is . . . consistent with the legislative history to
§ 994(h).” (emphasis added)). So the Commission’s deci-
sion to include conspiracy offenses in the career offender
guideline—and thereby subject § 846 offenders to the
crack/powder disparity contained in the statutory maxi-
mums—reflects an exercise of discretion. See United
States v. Allen, 24 F.3d 1180, 1186 (10th Cir. 1994) (“Section
994(h) does not, by mandating enhancement for certain
crimes, preclude the Commission from enhancing others
if it is within the Commission’s grant of discretion to
do so.”). Such policy decisions made by the Commission
in developing the Guidelines are not binding on sen-
tencing courts. See Kimbrough, 128 S. Ct. at 570-71 (observ-
ing that no congressional act prevented sentencing
courts from disagreeing with the crack/powder disparity
embedded in § 2D1.1); United States v. Spears, 129 S. Ct. 840,
843 (2009) (per curiam) (Kimbrough recognized “district
courts’ authority to vary from the crack cocaine Guide-
lines based on policy disagreement with them . . . .”).
Since no congressional statute requires that a career
offender convicted of a conspiracy offense under 21 U.S.C.
16 Nos. 06-4101, 06-4376 & 07-1813
§ 846 be sentenced “at or near” the statutory maximum,
sentencing courts have the discretion under Kimbrough
to consider the crack/powder disparity affecting such
an offender’s sentence. It follows that Davis and
Anthony, who both pleaded guilty to conspiracy under
§ 846 but not to the substantive drug offense under § 841,
are entitled to a remand for resentencing in light of
Kimbrough.
2. The Effect of the 2007 Amendment Reducing
the Guidelines’ Crack/Powder Disparity on Davis’
and Anthony’s Sentences
Related to their Kimbrough argument, Davis and
Anthony argue that they are entitled to resentencing
under the Commission’s 2007 amendment to § 2D1.1,
which reduced the sentencing disparity between crack- and
powder-cocaine offenses. U.S.S.G. app. C, amend. 706
(Supp. 2007). We can easily dispense with this argument.
The Commission’s policy is that a defendant already
serving a sentence may not benefit from a guidelines
amendment unless it “ha[s] the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Since Davis’ and Anthony’s sentences
were determined by § 4B1.1, the 2007 amendment to
§ 2D1.1 does not lower their applicable guidelines
ranges. See United States v. Forman, 553 F.3d 585, 589 (7th
Cir. 2009) (per curiam) (“Amendment 706 provides no
benefit to career offenders.”); Clay, 524 F.3d at 878-79
(“Although the recent amendments to the sentencing
guidelines lowered the offense levels associated with
Nos. 06-4101, 06-4376 & 07-1813 17
crack in the drug quantity table in U.S.S.G. § 2D1.1, they
did not change the career offender provision in
§ 4B1.1 . . . .”). Further, the Commission’s policy on
this point is not one that we can simply ignore, since
Congress has declared that any sentence reductions
based on a guidelines amendment must be “consistent
with applicable policy statements issued by the Sen-
tencing Commission.” 18 U.S.C. § 3582(c)(2); see also
United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008)
(recognizing that a district court’s authority to reduce
sentences under § 3582(c)(2) is limited by the Com-
mission’s policy statements).
3. The Effect of Kimbrough and the 2007 Amendment
on Armean’s Sentence
Unlike his co-defendants, Armean did not qualify as a
career offender. Since his sentence was determined by
§ 2D1.1, Armean should be an obvious candidate for
resentencing in light of Kimbrough. However, Armean
failed to challenge the crack/powder disparity embedded
in § 2D1.1 both at his sentencing hearing and in his ap-
pellate brief. The latter omission would generally mean
that Armean has waived any benefit from Kimbrough,
since “[a] party waives any argument that . . . it fails to
develop on appeal.” Local 15, Int’l Broth. of Elec. Workers,
AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir. 2007)
(quotation and citation omitted)). Fortunately for
Armean, the government has conceded that Armean is
entitled to a Taylor limited remand in light of Kimbrough,
thereby “waiving waiver” of Armean’s Kimbrough claim.
18 Nos. 06-4101, 06-4376 & 07-1813
See, e.g., United States v. Pacheco-Diaz, 506 F.3d 545, 551
(7th Cir. 2007). We will accordingly grant Armean a
limited remand at which the district court should
indicate whether it would have sentenced Armean dif-
ferently had it known of its discretion under Kimbrough.
See Taylor, 520 F.3d at 748-49.
Although failing to brief his Kimbrough claim, Armean
has argued on appeal that he is entitled to a sentence
reduction under the 2007 amendment to § 2D1.1. That may
be true, but this appeal is not the proper vehicle for
Armean to raise this claim in the first instance; rather,
Armean should move for a reduced sentence in the
district court under 18 U.S.C. § 3582(c)(2). Armean will
have the opportunity to make this motion at his limited
remand, at which the district court should first decide
“whether to act favorably on [Armean’s] motion (if he
makes one, or on the judge’s own initiative, if [Armean]
does not) for relief under the Commission’s new crack
regime.” Taylor, 520 F.3d at 748. After resolving any § 3582
motion, the court should indicate whether it is inclined
to reduce Armean’s sentence even further in light of
Kimbrough. Id. at 749.
B. Sentencing Arguments Resolved—Davis
Although we conclude that Davis and Anthony are
entitled to a full remand and resentencing in light of
Kimbrough, we have also considered their sentencing
arguments that are unrelated to the crack/powder dispar-
ity. Because some of these arguments are meritless
Nos. 06-4101, 06-4376 & 07-1813 19
and were fully developed in the initial sentencing pro-
ceedings, we may dispense with them in this appeal.
Beginning with Davis’ individual arguments, he asserts
that other errors were committed at his sentencing. He
argues that the district court abused its discretion by
failing to adequately consider evidence that the ATF agent
engaged in sentencing entrapment and manipulation.
Davis also asserts that the court’s application of the
career offender guideline to his case was unreasonable
based on the minor nature of his prior felony convic-
tions and the unreliability of the court’s findings of Davis’
prior convictions. Finally, Davis challenges the district
court’s refusal to reduce his sentence based on his coopera-
tion with the government.
1. Sentencing Entrapment and Manipulation
Sentencing entrapment occurs “when a defendant who
lacks a predisposition to engage in more serious crimes
nevertheless does so ‘as a result of unrelenting govern-
ment persistence.’ ” United States v. White, 519 F.3d 342,
347 (7th Cir. 2008) (quoting United States v. Veazey, 491 F.3d
700, 710 (7th Cir. 2007)). The government may disprove
sentencing entrapment by simply showing that the defen-
dant was in fact predisposed to violate the law without
“extraordinary inducements.” Id.
Sentencing manipulation is distinct from entrapment
and occurs when the government procures evidence
“through outrageous conduct solely for the purpose of
increasing the defendant’s sentence under the Sentencing
20 Nos. 06-4101, 06-4376 & 07-1813
Guidelines.” United States v. Wagner, 467 F.3d 1085, 1090
(7th Cir. 2006). Because “this circuit clearly and consis-
tently has refused to recognize any defense based on
either ‘sentencing manipulation’ or on asserting ‘outra-
geous government conduct,’ ” White, 519 F.3d at 346,
Davis’ manipulation argument would seem to be a
nonstarter. However, Davis raises both sentencing entrap-
ment and manipulation not as defenses to criminal con-
duct, but as mitigating factors that the district court may
consider in choosing a reasonable sentence. See United
States v. Lakhani, 480 F.3d 171, 186 (3d Cir. 2007) (acknowl-
edging that the district court at sentencing “would have
been entitled to consider the Government’s pervasive
role in this case,” even though the jury had rejected the
defendant’s entrapment defense); cf. United States v. Hale,
448 F.3d 971, 989 (7th Cir. 2006) (rejecting a sentencing
entrapment argument under § 3553(a) on the ground that
the defendant had not shown “extraordinary induce-
ments”). Assuming that evidence of sentencing entrap-
ment and manipulation could be relevant to a district
court’s application of the § 3553(a) factors, the evidence
in this case was not so strong that the district court
abused its discretion in rejecting Davis’ entrapment and
manipulation arguments.
Davis argues that, by changing the payment term of the
guns purchase from $2000 cash to 2 1/4 ounces cocaine, the
ATF agent entrapped Davis into a drug offense that he
would not otherwise have committed. That change also
amounts to sentencing manipulation, says Davis, because
the drug offense triggered a harsher sentencing range
under the career offender guideline, which would not
Nos. 06-4101, 06-4376 & 07-1813 21
apply to a cash purchase of guns. See U.S.S.G. § 4B1.1(a)(2)
(indicating that the career offender guideline applies
only where “the instant offense of conviction is a felony
that is either a crime of violence or a controlled sub-
stance offense”).
We find these arguments to be without merit. As to
sentencing entrapment, Davis had sold crack to the
agent on three prior occasions, indicating that he did not
lack the predisposition to commit another crack deal. True,
the prior sales involved quantities below the 50-gram
threshold that triggered a higher statutory maximum for
Davis’ instant conviction. See 21 U.S.C. § 841(b)(1)(a)(iii).
But Davis was at all times agreeable to paying for the
guns with 2 1/4 ounces of crack, telling his co-defendants
that he could easily supply that quantity. The agent
did not have to use “extraordinary inducements” to
convince Davis to engage in this relatively high-volume
crack deal. White, 519 F.3d at 347. And while the 2 1/4
ounces solicited by the agent may have had a slightly
lesser value than the originally proposed $2000 cash, such
“bargain basement pricing” does not amount to sen-
tencing entrapment. United States v. Estrada, 256 F.3d 466,
473-74 (7th Cir. 2001).
As to sentencing manipulation, it is not enough that
the agent’s provision of handguns and solicitation of
larger crack quantities may have been “motivated in part
by the desire to increase [Davis’] sentence.” Wagner, 467
F.3d at 1090. Although the agent’s tactics had the effect
of increasing Davis’ guidelines sentencing range, it also
served the legitimate purpose of investigating the full
22 Nos. 06-4101, 06-4376 & 07-1813
extent of Davis’ criminal activity, including his ability to
deal in large quantities of crack. See id. The govern-
ment’s conduct in this case was not so outrageous as to
require leniency under § 3553(a).
2. Application of the Career Offender Guideline
Davis challenges the reasonableness of the district
court’s application of the career offender guideline. In
particular, Davis contends that sentencing him under
§ 4B1.1 is unreasonable because two of the three prior
drug felonies that qualified him as a career offender
occurred at a young age, involved relatively small
amounts of drugs, and resulted in relatively short periods
of incarceration. The problem for Davis, however, is that
the district court fully considered these factors when
examining Davis’ “extensive criminal history.” The court
simply discounted the relative brevity of Davis’ prior
sentences against the fact that “the sentences that you
have served certainly have not been a deterrent to your
conduct.” There was no abuse of discretion here.
Davis also challenges the district court’s conclusion
that he qualified as a career offender based on prior
convictions that were not proven beyond a reasonable
doubt. He argues that due process requires that sen-
tencing enhancements be based on only reliable facts, and
that prior convictions established by a mere prepon-
derance of the evidence are unreliable. However, rather
than developing a cogent due process claim, Davis’ brief
blends his argument for a reasonable doubt standard
with a discussion of the Sixth Amendment right to a
Nos. 06-4101, 06-4376 & 07-1813 23
jury trial. We have repeatedly held that the Sixth Amend-
ment does not require that prior convictions supporting
a career offender classification be found by a jury beyond
a reasonable doubt. See Clanton, 538 F.3d at 654 (citing
Almendarez-Torres v. United States, 523 U.S. 224 (1998));
United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.
2007). We do not see how Davis’ argument, though
couched in terms of due process and the reasonableness
of his sentence, survives this precedent.
3. Cooperation with the Government
In his final challenge to the reasonableness of his sen-
tence, Davis argues that the district court abused its
discretion by failing to consider his cooperation with
the government. Prior to pleading in this case, Davis
discussed a plea agreement where, in exchange for dis-
closing the details of the crime and serving as a witness,
the government would move for a reduced sentence
based on Davis’ “substantial assistance.” See U.S.S.G.
§ 5K1.1. The deal fell through, however, based on Davis’
desire to make other mitigation arguments at sentencing
and his failure to admit all of the details of the offense,
particularly that it involved crack cocaine. As a result,
the government declined to make a § 5K1.1 motion at
Davis’ sentencing.
We agree with Davis that, as a general matter, a district
court may consider a defendant’s cooperation with the
government as a basis for a reduced sentence, even if the
government has not made a § 5K1.1 motion. See United
24 Nos. 06-4101, 06-4376 & 07-1813
States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (reasoning
that a district court should consider “the contention that
a defendant made efforts to cooperate, even if those
efforts did not yield a Government motion for a down-
ward departure pursuant to U.S.S.G. § 5K1.1”); United
States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir. 2005) (con-
cluding that “a defendant’s assistance should be fully
considered by a district court at sentencing even if that
assistance is not presented to the court in the form of a
§ 5K1.1 motion”); cf. United States v. Blue, 453 F.3d 948,
954 (7th Cir. 2006) (recognizing the district court’s “obliga-
tion to weigh the defendant’s cooperation . . . against the
other statutory sentencing factors” where the govern-
ment had made a § 5K1.1 motion). However, we
disagree that the district court in this case failed to give
sufficient consideration to Davis’ substantial-assistance
argument. The court simply rejected that argument in
favor of the government’s claim that “there were certain
things that [Davis] would not admit that were essential
to [his] cooperation.” The court’s decision to give more
credit to the government’s view of the extent of Davis’
cooperation was not an abuse of discretion.
C. Sentencing Entrapment and
Manipulation—Anthony
In addition to the Kimbrough argument that we have
addressed above, Anthony adopts Davis’ arguments
that the district court failed to adequately consider evi-
dence of sentencing entrapment and manipulation. As
with Davis’ analogous claims, we find that Anthony’s
Nos. 06-4101, 06-4376 & 07-1813 25
sentencing entrapment and manipulation claims are
without merit. Along with Davis, Anthony negotiated
the guns purchase with the ATF agent and readily
agreed to the agent’s suggestion that the defendants pay
for the guns with crack instead of cash. The government
did not have to resort to “extraordinary inducements”
that would support a sentencing entrapment claim,
White, 519 F.3d at 347, and its conduct was not so outra-
geous to support a sentencing manipulation claim,
Wagner, 467 F.3d at 1090.
III. Conclusion
Because no congressional directive prohibited the
district court from considering Davis’ and Anthony’s
sentencing argument based on the crack/powder
disparity affecting career offenders convicted of drug
conspiracy offenses under 21 U.S.C. § 846, we V ACATE
these defendants’ sentences and R EMAND for resentencing
consistent with this opinion. As for Armean’s case, we
order a L IMITED R EMAND so that the district court may
follow the procedure described in United States v. Taylor,
520 F.3d 746, 748-49 (7th Cir. 2008), to address the effect
of both the 2007 Amendment to § 2D1.1 and Kimbrough on
Armean’s sentence. After resolving any motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2) based on
the Amendment, the court should indicate whether it is
inclined to reduce Armean’s sentence under Kimbrough.
7-20-09