NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2012
Decided October 10, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐1411
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 11‐Cr‐93
JEREMY MAKYLE MCINTYRE, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Jeremy McIntyre pleaded guilty to possessing and intending to distribute crack
cocaine and other controlled substances (not including heroin, however—a clerical error
in the judgment names heroin as the controlled substance involved in the case, but the
error had no effect on the sentence). He was sentenced to 48 months in prison, and ap‐
peals, challenging the sentence. On the basis of the drug equivalency tables (see U.S.S.G.
§ 2D1.1, Application Note 10), which equate 1 gram of crack to just under 18 grams of
cocaine the defendant’s guidelines range was 63 to 78 months. The defendant argued in
his sentencing memorandum that the “sentencing disparity between sentences for crack
No. 12‐1411 Page 2
compared to powder cocaine” in the guidelines is “not supported by the relative harm‐
fulness of crack and powder cocaine” and asked the judge to sentence him to 21 months
in prison—a sentence that would have been within the guidelines range if the guide‐
lines used a 1:1 crack to powder ratio instead of the 18:1 ratio in the guidelines. (The 1:1
ratio would have made his guidelines range 21 to 27 months.)
The prosecutor responded that Congress, given its ability to collect and analyze
data, had a “policy making perspective” superior to judges and just recently established
the 18:1 ratio in the Fair Sentencing Act of 2010, Pub. L. No. 111‐220,
124 Stat. 2372. In
response the defendant’s lawyer reminded the judge that a sentencing judge is free to
“impose a sentence in accordance with what it believes should be an appropriate treat‐
ment of crack and powder,” Kimbrough v. United States,
552 U.S. 85, 110 (2007), provided
of course that it is within the statutory sentencing range.
The judge declined to second guess Congress’s decision to fix the ratio of crack to
powder cocaine at 18:1:
And relative to the Fair Sentencing Act of 2010 and 2011, and the
amendments, as the Court has stated countless times it’s not its job to second
guess Congress. They author a law, and the Court has to follow the law. It’s very
dangerous institutionally for the Court to cross over and say well, you know, I
don’t like their reasoning in passing this law. I think it was politically expedient.
It’s very dangerous when you say, well, this is the law, but it was passed un‐
der—in a context of political expediency, therefore I don’t have to follow it. I
mean, that’s pretty dangerous stuff, in my opinion. As far as observing the sepa‐
ration of powers. And the degree of in‐put that a Court should have relative to
the Legislative process. And some people would argue that 100‐to‐1 ratio should
have remained the same. But it’s not for me to argue that. It’s what the Congress
decides. I mean, you look at this bill and say well, it’s political expediency. Take
a look at the health care bill. 2,200 pages. Nobody knows what’s in it. Talk about
political expediency. Passed without the help of the other party at midnight? But
it’s the law, and if it was here, and I was told to enforce it, I’d have to enforce it. .
. . I don’t want to get political here, and I’m not. It’s just that when you go to this
political expediency comment, I mean, you just can’t do that. There’s many op‐
portunities to do that, and the Judges aren’t supposed to do that.
So arguments can be made both ways. But the Court still has to consider
that Congress has got an 18‐to‐1 ratio, and that’s the way to consider it, and
that’s why the guidelines are structured the way they are. So it’s a serious offense
from that point of view.
Later the prosecutor, doubtless concerned that the judge’s words might be taken
to deny discretion to give a sentence below the guidelines range, a range based on the
18:1 ratio, asked “for an explicit clarification. Obviously the Defendant made the ratio
argument advocating a 1‐to‐1, as opposed to an 18‐to‐1. The Court rejected that. The
No. 12‐1411 Page 3
Court understood, obviously, that it has the discretion, still, even after the Fair Sentenc‐
ing Act, to go with the 1‐to‐1 if it chose to, is that correct?” The Court replied: “Yes, it is.
But this is the recommendation of the Congress, which the Court has, as indicated in its
other positions in line with the sentencing guidelines—even though they’re advisory,
gives it great weight. And as I said earlier, there are some people that argue that 100‐to‐
1 ratio should be the ratio. I’m not going to draw any opinion as to that. But if it was,
the court would also take that into account. But it’s taking into account the 18‐to‐1 ratio,
giving it great weight, but the Court’s reduction in sentence occurs because of its evalu‐
ation of the degree of cooperation that [the defendant] rendered.” (The sentence the
judge gave, 48 months, was below the 63‐month bottom of the applicable guidelines
range.)
We would have to remand if the judge had treated the guidelines as mandatory.
Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Carter,
530 F.3d 565, 577 (7th
Cir. 2008); United States v. Bazazpour,
690 F.3d 796, 803 (6th Cir. 2012). But the judge
made clear that he realized he could depart; he decided not to do so, because he re‐
spects the congressional judgment in fixing the ratio at 18:1. In effect he incorporated
the congressional judgment into his penal philosophy, as he was authorized to do. See
United States v. Meschino,
643 F.3d 1025, 1030–31 (7th Cir. 2011); United States v. Ultsch,
578 F.3d 827, 830–31 (8th Cir. 2009). The case is unlike United States v. Schmitt,
495 F.3d
860, 864–65 (7th Cir. 2007), on which the defendant relies, because in that case, while the
sentencing judge had offered a cursory acknowledgment that the guidelines are advi‐
sory, “the tenor of his remarks indicated that he felt that there was an outside constraint
on his discretion that he was not free to set aside.” See also United States v. Coopman,
602
F.3d 814, 817 (7th Cir. 2010); United States v. Stone,
575 F.3d 83, 96 (1st Cir. 2009). The
judge in this case merely decided to give Congress’s advice “great weight,” which he
was entitled to do.
AFFIRMED.
