United States v. James Brown, Sr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3776
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES J. B ROWN, S R.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-CR-58—Lynn Adelman, Judge.
A RGUED A PRIL 22, 2010—D ECIDED A UGUST 16, 2010
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
W ILLIAMS, Circuit Judge. James J. Brown, Sr. pled
guilty to possessing crack cocaine with the intent to
distribute it. He qualified as a career offender under
the United States Sentencing Guidelines, and he pointed
out in his sentencing memorandum that the guideline
range for powder cocaine offenders was lower than that
for crack cocaine offenders like him. At the time, our
precedent dictated that a sentencing judge was bound
2 No. 09-3776
by the crack/powder disparity reflected in the career
offender guideline, U.S.S.G. § 4B1.1. We overruled that
precedent in United States v. Corner, 598 F.3d 411 (7th
Cir. 2010) (en banc), which we decided after Brown
was sentenced. Although Brown received a sentence
that was one month less than the low end of the advi-
sory guideline range for powder cocaine career of-
fenders, we do not know how the district court would
have sentenced Brown had it known it could disagree
with the crack/powder disparity inherent in the career
offender guideline. Therefore, in light of Corner, we
vacate Brown’s sentence and remand for resentencing.
I. BACKGROUND
While conducting surveillance near an apartment
complex in Fitchburg, Wisconsin, an officer saw a drug
deal and radioed the license plate numbers and descrip-
tions of the vehicles involved. Officers stopped the
vehicle James J. Brown, Sr. was driving. Brown got out
and ran, but an officer caught him a short time later and
found a clear plastic bag containing 18.18 grams of crack
cocaine nearby. Brown admitted in a statement that he
ran from the officer because he had crack cocaine and
that he had thrown the plastic bag containing crack
cocaine while the police chased him.
Brown pled guilty to knowingly and intentionally
possessing, with the intent to distribute, more than five
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).
The Presentence Investigation Report (“PSR”) affixed a
base offense level of 24 in light of the 18.18 grams of crack
No. 09-3776 3
cocaine found at the scene. See U.S.S.G. § 2D1.1. Brown’s
prior convictions made him a career offender under
the guidelines, and that status raised his offense level to
37. See U.S.S.G. § 4B1.1. A three-level reduction for ac-
ceptance of responsibility resulted in a final offense level
of 34, and his criminal history as a career offender was
VI. The resulting advisory guideline range was 262 to
327 months. Brown also faced a statutory mandatory
minimum of 120 months’ imprisonment. See 21 U.S.C.
§ 841(b).
Through counsel, Brown filed a sentencing memoran-
dum before his sentencing hearing. He pointed out in
the memorandum that although his guideline range
was 262-327 months, his range would have been 151-188
months’ imprisonment had his offense involved powder
cocaine. On November 4, 2009, the district court im-
posed a sentence of 150 months’ imprisonment, 8 years
of supervised release, and a $100 assessment. Brown
appeals his sentence.
II. ANALYSIS
At the time Brown was sentenced, the district court was
bound by our decision in United States v. Welton, 583
F.3d 494 (7th Cir. 2009). We held in Welton that a sen-
tencing court could not disagree with the crack/powder
disparity reflected in the career offender guideline,
U.S.S.G. § 4B1.1, because a statute, 28 U.S.C. § 994(h),
required the Sentencing Commission to set guideline
ranges for career offenders at or near the statutory maxi-
mum sentences, and the maximum sentences in 21 U.S.C.
4 No. 09-3776
§ 841 contained a crack/powder disparity. We later over-
ruled Welton in United States v. Corner, 598 F.3d 411(7th Cir. 2010) (en banc), holding that a sentencing
judge could consider policy disagreements with the
crack/powder disparity when it sentenced a person
with career offender status.
The question in this appeal is whether our decision
in Corner requires a remand in this case. As an initial
matter, Brown preserved his argument that the
crack/powder disparity reflected in U.S.S.G. § 4B1.1 af-
fected his sentence by asserting in his sentencing memo-
randum that had his case involved powder cocaine
instead of crack cocaine, his guideline range would
have been lower. See United States v. Johnson, 584 F.3d 731,
740 (7th Cir. 2009) (stating that defendant preserved
challenge to sentencing disparity by raising challenge
in his objections to the presentencing report).
The government maintains that despite our decision
in Corner, Brown’s sentence should be affirmed. It
argues that Brown’s 151-month sentence was rea-
sonable and emphasizes that his sentence was one
month below the low end of the advisory guideline
range for powder cocaine career offenders. The govern-
ment also points to the district court’s thorough discus-
sion at the sentencing hearing and maintains that
Brown failed to show that the court’s inability to
consider the crack/powder disparity in U.S.S.G. § 4B1.1
affected its choice of sentence.
The problem with this argument, however, is that we
have no way of knowing how the district court might
No. 09-3776 5
have sentenced Brown had it known it could disagree
with the crack/powder disparity inherent in the career
offender guideline. The course we have taken in similar
situations guides us here. After the Supreme Court held
in United States v. Booker, 543 U.S. 220 (2005), that
the sentencing guidelines were advisory and not man-
datory, we remanded sentencing appeals to the district
court unless we were confident that the sentencing
judge would not have given the defendant a lighter
sentence had it known the guidelines were only advi-
sory. See United States v. Paladino, 401 F.3d 471, 481-84
(7th Cir. 2005). We adopted the same approach after
the Supreme Court ruled in Kimbrough v. United States,
552 U.S. 85 (2007), that a sentencing judge could
disagree with the crack/powder disparity in the guide-
lines for policy reasons, overruling our precedent to the
contrary. See United States v. Taylor, 520 F.3d 746, 747-48
(7th Cir. 2008); United States v. White, 519 F.3d 342, 349
(7th Cir. 2008). In both situations, we concluded that
when we had no way of knowing how the sentencing
judge might have sentenced the defendant in light of
the Supreme Court decisions, a remand was neces-
sary so that the sentencing judge could make that deter-
mination.
That is the situation here too. The government is cor-
rect that the district court gave a thorough explanation
of the reasons for choosing the sentence it did. The
district court discussed Brown’s record and the convic-
tions that led to his career offender status. It acknowl-
edged that Brown’s current offense was serious, but it
also noted that the longest sentence he had received to
6 No. 09-3776
date was only 24 months’ imprisonment. The court
also discussed Brown’s difficult childhood, where a
neglectful, abusive mother often left Brown and his
siblings to fend for themselves. The district court also
recognized that Brown had five children and that his
fiancée described him as a good person and caring
father who became involved in drugs to make money.
The district court also noted that Brown was doing well
in treatment and had made an effort to be involved
with his other children. After taking these and other
considerations into account, the district court imposed
a sentence of 150 months.
But the district court imposed the 150-month term
not knowing that it could disagree with the 262-
327 month guideline range for crack cocaine career of-
fenders, and we do not know how it might have sen-
tenced Brown had it known it could sentence him
relative to a different range. The district court did not
address the crack/powder disparity Brown had raised
in his memorandum, which made sense in light of our
precedent at the time. It also made no statement sug-
gesting that it would have imposed the same sentence
if it had the authority to disagree with the disparity
reflected in § 4B1.1. The burden is on the government to
show that a remand is unwarranted, see United States v.
White, 582 F.3d 787, 799 (7th Cir. 2009); United States v.
Olson, 450 F.3d 655, 683 (7th Cir. 2006), and we do not
find that burden satisfied here. We therefore vacate
Brown’s sentence. Because he preserved his argument
before the district court, Brown receives a full resen-
tencing and not a limited remand. See Johnson, 584 F.3d
at 740; Olson, 450 F.3d at 683.
No. 09-3776 7
III. CONCLUSION
We V ACATE Brown’s sentence and R EMAND his case to
the district court.
8-16-10