                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2007

USA v. Ricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4833




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                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT



                                        No. 05-4833


                             UNITED STATES OF AMERICA,
                                                     Appellant

                                              v.

                                       MARC RICKS,
                                                                  Appellee




             ORDER SUR PETITION FOR REHEARING EN BANC
                              AMENDED




      Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY,
                 AMBRO, FUENTES, SMITH, FISHER, CHAGARES,
                     JORDAN and HARDIMAN, Circuit Judges




       The Petition for Rehearing filed by the Appellee in the above-entitled matter, having
been submitted to the judges who participated in the decision of this court and to all the other
available circuit judges of the circuit in regular active service, and no judge who concurred
in the decision having asked for rehearing, and a majority of the circuit judges of the circuit
in regular service not having voted for rehearing, the Petition for Rehearing by the panel and
the Court en banc, is hereby DENIED.


                                                    BY THE COURT,
                                                    /s/ Julio M. Fuentes
                                                    Circuit Judge



AMBRO, Circuit Judge, Dissent Sur Denial of the Petition for Rehearing.

       In this case the panel has vacated the sentences of two brothers, Michael and Marc

Ricks, because the District Court, in setting their actual sentence, disagreed with the

advisory Sentencing Guidelines regarding the crack/powder cocaine differential. Because

I believe that recent Supreme Court precedent and our Court’s precedent puts that

discretion with the District Court, I would grant rehearing en banc.

                                               I.

       The Guidelines incorporate the 100:1 ratio between the threshold quantities of

powder cocaine and crack cocaine that trigger certain mandatory minimum punishments

for distribution of these drugs. United States v. Ricks, slip op. at 4. This policy has many

critics, most prominently the U.S. Sentencing Commission. Id. at 5–8. But Congress has

yet to alter the mandatory-minimum provisions or the Guidelines based on them to

alleviate the disparity that the panel describes as “unjust.” Id. at 18.

       In sentencing Michael and Marc Ricks, the District Court categorically rejected the

Guidelines’ 100:1 ratio. The Court instead used a 20:1 ratio in crafting their sentences.

Id. at 3–4. But the panel has vacated the sentences for failing to give “ ‘meaningful

consideration’ ” to the Guidelines, id. at 9 (quoting United States v. Cooper, 437 F.3d
324, 327 (3d Cir. 2006), contrary to 18 U.S.C. § 3553(a)(4), which makes the Guidelines’

sentencing-range calculation a factor in sentencing. Marc Ricks then petitioned our Court

for rehearing en banc.

       While the panel forbids “categorical rejection” of the Guidelines 100:1 policy,

Ricks, slip. op. at 18, it would allow case-by-case consideration of the policy’s merits in

light of individualized factors. Id. In reaching this result, the panel relies on United

States v. Rita, ___ U.S. ___ ,127 S.Ct. 2456 (2007), and United States v. Gunter, 462 F.3d

237 (3d Cir. 2006).

                                              II.

       Gunter outlined a three-step procedure for District Courts to follow in sentencing,

as described by the panel’s opinion in this case. Ricks, slip op. at 8; Gunter, 462 F.3d at

247. At step one of Gunter’s procedure, district courts are to calculate the Guidelines’

sentencing range. 462 F.3d at 247. Step two involves addressing motions regarding

departures from the Guidelines. Id. At step three, district courts are to “exercise their

discretion by considering the relevant § 3553(a) factors” even if that results in a sentence

outside the Guidelines. Id. In this case, the panel holds that the District Court exercised

an impermissible degree of discretion, even if that discretion was exercised at step three.

But the holding of Gunter compels the opposite conclusion.

       Gunter stated in its final paragraph that “we do not suggest (or even hint) that the

Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.” Id.

at 249. The panel interprets that language as consonant with its holding in this case,

Ricks, slip op. at 11, regardless whether the District Court’s rejection of the 100:1 ratio
occurred at step one or step three of Gunter’s procedure. Id. at 9 n.9. In my view,

however, the parties’ dispute over whether the District Court calculated the Guidelines

range first (at step one) before applying a 20:1 ratio (at step three) matters a great deal.

       The quote from Gunter refers to the Guidelines’ continued role at step one.

Gunter cited with approval the decision of the First Circuit Court of Appeals in United

States v. Pho, 433 F.3d 53 (1st Cir. 2006), and the Fourth Circuit Court of Appeals in

United States v. Eura, 440 F.3d 625 (4th Cir. 2006), both of which had reversed sentences

in which the district court used a 20:1 ratio to determine the sentencing range.1 But that

rejection of the 100:1 ratio had occurred in the initial calculation of the Guidelines range.

Thus, the district courts in those cases never had the benefit of considering a correctly

calculated Guidelines range, a circumstance that will almost always warrant a remand.

       In Gunter, an identical situation arose, as the District Court at sentencing stated:

              [D]oesn’t a sentencing Court have to respect the
              congressional intent with respect to sentencing for crack
              versus powder cocaine, and to take a position that does not
              recognize what Congress clearly intended, wouldn’t that be a
              legislative act by a Court as opposed to a judicial act? I don’t
              think the provisions that Congress has put up there for a Court
              to decide to consider suggest that the Court can second guess
              Congress’ well spelled out intent with respect to sentencing. I
              don’t think I can call it sentencing—I don’t think I can say
              that there should not be a sentencing disparity.

462 F.3d 237, 239 (3d Cir. 2006). In essence, the District Court based its sentence on the

reasoning that it had no power to reject the Guidelines’ 100:1 ratio on a categorical basis.


       1
         In Eura, the sentencing range based on a 20:1 ratio fell entirely below the
statutory minimum, so the District Court sentenced at the statutory minimum. 440 F.3d at
631 n.6.
We clarified that the District Court was correct that it lacked the power to reject the

Guidelines in calculating the sentencing range at step one, but was wrong in believing it

lacked that power also at step three in setting the actual sentence. “[A] sentencing court

errs when it believes that it has no discretion to consider the crack/powder cocaine

differential . . . as simply advisory at step three.” Id. at 249.

          The intent of Gunter was to reinforce district courts’ discretion. The Guidelines’

sentencing-range calculation is one factor that district courts must consider under §

3553(a), but under United States v. Booker, 543 U.S. 220 (2005), the Guidelines’

calculation—including the 100:1 ratio—is advisory. I submit, therefore, that Ricks

misreads Gunter and thus fails to follow its holding.

                                               III.

          I also believe that Ricks runs afoul of recent Supreme Court precedent.

                                                A.

          The panel’s opinion conflicts with the Supreme Court’s remedial opinion in

Booker, which makes the Guidelines “effectively advisory” and requires district courts to

consider all the factors of § 3553(a). Id. at 245. In Ricks, the District Court considered

the Guidelines’ sentencing range—which applied a 100:1 ratio—and rejected that range

for what it considered to be a more reasonable punishment. I cannot see why

“meaningful consideration” cannot lead to carefully considered rejection of an advisory

policy.

          It is no answer to say that sentencing judges cannot reject the policy decision of

Congress. The whole Guidelines manual represents a policy decision of Congress. In
order to remedy a constitutional defect, Booker excised the provisions that previously

made the Guidelines mandatory. This made advisory Congress’s policy decisions as

expressed in the Guidelines. Put simply, they do not have to be followed at step three.

       It would also be no answer to say that a district court may consider at step three

only those things particular to the defendant being sentenced when deciding whether to

vary from the Guidelines range. This essentially is the familiar “heartland” concept, see

Rita, 127 S.Ct. at 2461; USSG § 5K2.0(a)(2), wherein a sentencing court can depart at

Gunter’s step two from the Guidelines’ sentencing-range calculation made at step one

only if it finds that the Guidelines themselves inadequately account for the circumstances

in a particular case. Gunter, 462 F.3d at 247. Importantly, the availability of departures

was not enough to save the Guidelines from unconstitutionality. See Booker, 543 U.S. at

234–35. There is thus no reason to think that a similar standard applied to step-three

variances would leave a sentencing scheme that passes constitutional muster either.

                                             B.

       In Rita, Justice Breyer’s majority opinion described Booker reasonableness review

as “merely ask[ing] whether the trial court abused its discretion.” 127 S.Ct. at 2465; see

also id. at 2471 (Stevens, J., concurring) (“Booker restored the abuse-of-discretion

standard . . . .”). Justice Breyer described the Guidelines as, “insofar as practicable,

reflect[ing] a rough approximation of sentences that might achieve § 3553(a)’s

objectives.” Id. (majority opinion) at 2464–65 (emphases added). In approving the use

of an appellate presumption of reasonableness, he wrote that when “both the sentencing

judge and the Sentencing Commission . . . reach[] the same conclusion as to the proper
sentence . . . [,] [t]hat double determination significantly increases the likelihood that the

sentence is a reasonable one.” Id. at 2463.

       In our case, the trial judge did not reach the same conclusion as the Guidelines

(instead reaching the same conclusion as the Commission suggested), thus making it less

likely that the Guidelines’ sentencing range is reasonable. And the Supreme Court

specifically acknowledged that it is valid for a district court generally to disagree with the

Guidelines. See id. at 2468 (noting as valid the argument that “a party contests the

Guidelines sentence generally under § 3553(a)—that is[,] argues that the Guidelines

reflect an unsound judgment”); id. at 2465 (noting that the judge may hear argument that

“the Guidelines sentence itself fails properly to reflect the § 3553(a) considerations”); id.

at 2464 (recognizing the “differences of philosophical view among those who work

within the criminal justice community as to how best to apply general sentencing

objectives”). As a result, I believe Ricks not only runs counter to Gunter but also strays

from the directives of the Supreme Court in this admittedly volatile area of sentencing.

                                       *   *   *    *   *

       With this context, I therefore ask: If advisory Guidelines can reflect an unsound

judgment that “overrepresents the relative harm of crack as compared to powder cocaine”,

Ricks, slip op. at 11, then why can’t a sentencing judge “categorically” reject them at step

three as unreasonable? Given that advisory Guidelines must result in a large degree of

discretion for district courts, how are they to be advisory if it is reversible error to

disagree with them at step three in imposing an otherwise reasonable sentence?

       I close with this comment. My colleagues on the Ricks panel are trying admirably
to work a balance among conflicting interpretations of statements in Supreme Court

sentencing cases. Most courts of appeals support their position. Besides Gunter, only the

Court of Appeals for the D.C. Circuit supports my position. See United States v. Pickett,

475 F.3d 1347 (D.C.Cir. 2007). The Supreme Court is on the cusp of deciding the very

issue Ricks presents–the effect of the crack/powder cocaine differential in sentencing

under a now-advisory scheme.2 See Kimbrough v. United States, 174 Fed. Appx. 798 (4th

Cir. 2006) (per curiam), cert. granted, ___ U.S. ___ (2007). While I write separately here


       2
         In its brief in another sentencing case pending before the Supreme Court, argued
the same day as Kimbrough, the Government writes that “a variance may be justified
either by atypical facts, by persuasive policy reasons for concluding that the Guidelines
do not appropriately reflect Section 3553(a)’s sentencing factors, or by a combination of
facts and policy considerations.” Brief for the United States at 35, Gall v. United States,
No. 06-7949 (U.S. filed Nov. 27, 2006). The Government also concedes that under the
Supreme Court’s sentencing decisions, “a court’s ability to vary based solely on policy
disagreements with the Guidelines avoids Sixth Amendment difficulties . . . .” Id. at 36
(emphasis added). So the Government does not advocate as strong a restriction on district
courts’ discretion as the panel has adopted in Ricks.
        The Government does argue that district courts may not disagree with the 100:1
crack/powder cocaine differential on the ground that the ratio comes directly from
Congress. See Brief for the United States at 29, Kimbrough v. United States, No. 06-6330
(U.S. filed Sept. 7, 2006) (arguing that district courts may “sentence based on policy
considerations that differ from those reflected in the Guidelines” but may not disregard
“direct sentencing requirements” from Congress). But if district courts must have
discretion to sentence based on policy disagreements to comply with the Sixth
Amendment, then restrictions on that discretion are unconstitutional whether they come
from Congress or the Sentencing Commission. See Booker, 543 U.S. at 237–39 (stating
that “the fact that the Guidelines were promulgated by the Sentencing Commission, rather
than Congress, lacks constitutional significance” and applying the constitutional
reasoning of Blakely v. Washington, 542 U.S. 296 (2004), to the Guidelines).
        The bottom line for our Court today, as we await the Supreme Court’s decisions in
Gall and Kimbrough, is that even the Government would not go so far as the panel does
in limiting district courts’ discretion to disagree with policies contained in the Guidelines.
to express my view on the step-three discretion that Gunter affords—and the necessity of

that level of discretion under Booker and Rita—I would vote to remand without opinion

now with instructions to consider Kimbrough when it is issued.

      For these reasons I respectfully dissent from the denial of the petition for rehearing

en banc.



DATED:     October 22, 2007

tyw/cc:     Ara B. Gershengorn, Esq.
            David E. Troyer, Esq.
            Mark Osler, Esq.
            David L. McColgin, Esq.
