                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 05-4632
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellant,
                                  v.

JOHN W. JOINTER,
                                                 Defendant-Appellee.
                           ____________
             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
            No. 05 CR 79—Larry J. McKinney, Chief Judge.
                           ____________
       ARGUED APRIL 6, 2006—DECIDED AUGUST 9, 2006
                           ____________


  Before RIPPLE, MANION and KANNE, Circuit Judges.
   RIPPLE, Circuit Judge. On October 7, 2005, Mr. Jointer
pleaded guilty to distribution of and possession with in-
tent to distribute cocaine base (“crack”). See 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)(iii). He was sentenced to 87
months’ imprisonment, a term below the advisory guideline
range. The Government now appeals Mr. Jointer’s sentence;
it submits that the district court exceeded its authority by
substituting a 20:1 crack-to-powder cocaine sentencing ratio
rather than the 100:1 ratio found in the United States
Sentencing Guidelines. The Government further claims that
2                                                 No. 05-4632

the sentence is unreasonable. For the reasons set forth in this
opinion, we reverse the judgment of the district court and
remand the case for resentencing.


                              I
                     BACKGROUND
A. Facts
  On three occasions in November and December of 2004,
Mr. Jointer made controlled purchases of a total of 46.4
grams of crack from an undercover police officer; these
purchases were audio and videotaped.
  On December 10, 2004, this undercover officer called
Mr. Jointer and asked to meet him in a store parking lot in
order to purchase two ounces of crack. Indianapolis police
officers met Mr. Jointer at the parking lot and attempted
to arrest him, but Mr. Jointer struggled with the police
officers and was able to flee on foot. Mr. Jointer was appre-
hended after he ran across the roadway and was struck
accidentally by an assisting police officer’s vehicle. Upon his
arrest, officers found 22.18 grams of crack on or near his
person; they found an additional 10.84 grams during a
subsequent search of his residence.
  On May 25, 2005, Mr. Jointer was charged in a four-count
indictment with three counts of distribution of five grams or
more of crack in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii), and one count of possession with intent
to distribute five or more grams of crack in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). On October 7,
2005, Mr. Jointer pleaded guilty to the four-count indict-
ment.
No. 05-4632                                                   3

  Mr. Jointer had a criminal history that included previous
convictions for felony theft and receiving stolen property.
Also, at the time of the charged offenses he was on proba-
tion for a 2004 conviction for possession of cocaine.


B. District Court Proceedings
  The district court conducted a sentencing hearing on
November 17, 2005. Before calculating Mr. Jointer’s ap-
plicable guidelines range, the court noted that the statutory
sentencing range was between five and forty years, indicat-
ing that Congress is of the “opinion that the crimes that [Mr.
Jointer has] committ[ed] are serious, that they impact our
society in many ways, and that they cause a great deal of
harm.” Sent. Tr. at 2.
  The court then began the process of calculating the
guidelines range. Examining the conduct to which Mr.
Jointer pleaded guilty, the court determined that the base
offense level was 32. The court then applied a 2-level
enhancement for obstruction of justice, see U.S.S.G. § 3C1.2,
finding that Mr. Jointer had put the officers at risk of in-
jury when he resisted arrest. The court subtracted three
levels for acceptance of responsibility, resulting in a total
offense level of 31. With Mr. Jointer’s criminal history
category of III, the applicable guideline range was 135 to 168
months.
  Next, the district court turned to a consideration of the
sentencing factors set forth in 18 U.S.C. § 3553(a). The
district court stated that, in sentencing, the court makes “an
attempt to . . . be consistent with what others in the country
have done” and what the district court itself has done in the
past. Id. at 9. The court stated, however, that it did not think
that the “notion of consistency” appeared in § 3553(a). Id.
4                                                 No. 05-4632

  The court noted that it considered Mr. Jointer a “street
dealer,” not an “importer” or “organizer,” and expressed its
concern that a guidelines sentence might not “reflect
the actual conduct of this defendant in the scheme of the
drug distribution system.” Id. at 10; see also id. at 9 (stating
that, with regards to Mr. Jointer’s conduct, “I am not
looking at five kilograms of crack cocaine, I am looking at 80
grams.”).
  The court also observed that Mr. Jointer already had
been given a second chance because he was on probation
when he committed the crime for which he was now be-
ing sentenced. Pointing out that Mr. Jointer had made a
series of bad choices, the court stated that the Guidelines
would put Mr. Jointer “in the place” that reflects the
seriousness of the offense, promotes respect for the law,
provides deterrence and administers punishment. Id. at 11.
    The court next made the following statement:
     Now, I am concerned about a sentencing consistency
     across the country, and I am concerned about the 100 to
     1 disparity of crack cocaine to powder. And I think it is
     fair for me, at a sentence, to reflect on why it was that
     the 100 to 1 began and what scientific evidence there
     was for Congress to conclude that 100 to 1 in the Guide-
     lines . . . was appropriate. There was the fear that the
     addiction was greater to crack cocaine, that the harm
     was greater caused by crack cocaine. And, as we have
     proceeded, as science has proceeded to address those
     issues over the course of the years there is less and less
     evidence that there is a difference in the high and there
     is a difference in the addiction. . . . The literature is
     replete with evidence that what we thought was—or
     what Congress thought was an appropriate disparity
     might not be so wise today because of the better science
     that we have.
No. 05-4632                                                    5

Id. at 11-12. Because the court believed the original rationale
for the 100:1 ratio was based on assumptions that no longer
were accepted, it decided to employ a 20:1 ratio in sentenc-
ing Mr. Jointer. The court remarked that it was employing
the ratio that the United States Sentencing Commission had
recommended “with wisdom and . . . a nod to science.” Id.
at 12. The district court acknowledged that the Government
believed that the appropriate ratio was a “congressional
issue and not a judicial issue.” Id. at 13. The court stated that
such an argument was “valid,” but nonetheless stated that
it had the “final say, as to whether or not a sentence is
reasonable” for a particular defendant. Id. at 13-14.
  Applying the 20:1 ratio, the district court recalculated
the guidelines calculation and arrived at a level of 25. The
resulting range was 70 to 87 months’ imprisonment. The
court stated that it arrived at this result “by applying the
3553(a)” factors to the guidelines computation. Id. at 14. The
court stated that the new range could provide deterrence for
Mr. Jointer and others. Noting that Mr. Jointer had been
involved with drugs for quite some time, it sentenced Mr.
Jointer to 87 months’ imprisonment, the top of the range. In
the court’s view, this sentence “reflect[ed] the seriousness of
the offense” and Mr. Jointer’s criminal history. Id. at 15.


                               II
                        DISCUSSION
A. The 100:1 Ratio and Booker
  The Government presents two issues in its appeal to this
court: (1) whether the district court committed legal error by
sentencing Mr. Jointer under a 20:1 ratio rather than a 100:1
6                                                     No. 05-4632

ratio;1 and (2) whether Mr. Jointer’s sentence is unreason-
able. We turn now to the first issue.
   In this post-Booker world, the basic methodology that must
be employed by a district court in sentencing a defendant is
now well-settled. As a threshold matter, the district court
first must calculate the appropriate sentence under the
applicable version of the United States Sentencing Guide-
lines. See, e.g., United States v. Walker, 447 F.3d 999, 1007 (7th
Cir. 2006). Although the Guidelines are now advisory, not
mandatory, they serve as a necessary starting point in the
court’s deliberations. In making this initial calculation, the
court must acknowledge, and abide by, the policy choices
made by Congress and by the Sentencing Commission. At
this stage of the process, a district court, and indeed this
court on review, must respectfully adhere to the 100:1 ratio
that Congress has decided to implement; the court cannot
substitute a different ratio for the one that Congress has
selected. “[A]fter Booker district judges are obliged to
implement the 100-to-1 ratio as long as it remains part of the
statute and the Guidelines.” United States v. Miller, 450 F.3d


1
   The so-called “100:1” ratio originated in the Anti-Drug Abuse
Act of 1986 (the “Act”), Pub. L. No. 99-570, 100 Stat. 3207 (1986)
(codified in pertinent part at 21 U.S.C. § 841(a)). The Act pre-
scribes a minimum sentence of 10 years for possession of 5,000
grams of cocaine or 50 grams of cocaine base (“crack”) and a
minimum sentence of 5 years for 500 grams of cocaine or 5 grams
of crack. See 21 U.S.C. §§ 841(b)(1)(A)(ii), (iii); id.
§§ 841(b)(1)(B)(ii), (iii). The Sentencing Commission then set
the Guidelines accordingly, adjusting the sentencing ranges
for crack and powder to reflect Congress’ decision. For a
more detailed discussion of the history of the 100:1 ratio, see
United States v. Eura, 440 F.3d 625, 635-36 (4th Cir. 2006) (Michael,
J., concurring).
No. 05-4632                                                          7

270, 275 (7th Cir. 2006);2 see also United States v. Lister, 432
F.3d 754, 762 (7th Cir. 2005) (noting that the 100:1 ratio has
been upheld consistently by our circuit and that “Booker
do[es] nothing to overturn this decision”). After the court
has ascertained the appropriate advisory guideline sentence,
it then must determine, by an examination of all of the
facts and circumstances of the case in light of the criteria set
forth in 18 U.S.C. § 3553, an appropriate sentence for
the individual defendant. Notably, only after calculating the
correct range may a court make reference to the fac-
tors specified in § 3553(a) and select a sentence for a defen-
dant that is either within or outside of the advisory guide-
lines range. See Walker, 447 F.3d at 1007.
  In this case, the district court did not make a state-
ment categorically rejecting the 100:1 ratio in sentencing
all crack defendants in front of the court. Such a state-
ment would have been a quintessential appropriation of
legislative authority. On the other hand, a fair reading of the
sentencing transcript does not permit us to characterize the
district court’s action as entirely judicial in nature. The court
simply did not tie the 20:1 ratio specifically to Mr. Jointer.
Although the court said that it was applying the 20:1 ratio
“in this case,” it did not articulate a rationale for why 20:1
was more appropriate than any other ratio for Mr. Jointer.
Sent. Tr. at 14. It simply disagreed with the legislative facts
upon which Congress had based its judgment and substi-
tuted other legislative facts for the congressional judgment.
Although the court did discuss characteristics specific to Mr.
Jointer, such as Mr. Jointer’s relatively low-level involve-


2
   The district court did not have the benefit of our decision in
United States v. Miller, 450 F.3d 270 (7th Cir. 2006), at the time that
it ruled.
8                                                 No. 05-4632

ment in the drug distribution business, the court did not
make any defendant-specific findings or statements when
discussing the crack-to-cocaine ratio. In sum, although the
district court did, at first, correctly calculate the applicable
offense level and sentencing range, the court abandoned
that correct calculation and inserted its own ratio, 20:1, and
then recalculated the applicable offense level and sentencing
range. See Sent. Tr. at 24 (“I’m not abandoning the Guide-
lines. I will reconfigure the Guidelines . . . on the conclu-
sions I have drawn by applying the 3553(a) factors, and that
would, in fact, leave the total offense level at a 25.”). This
recalculation was erroneous; it followed neither the statu-
tory language set out by Congress nor the applicable
guidelines sections.
   A district court “err[s] as a matter of law when it
construct[s] a new sentencing range” based on a crack-to-
powder range other than 100:1. United States v. Pho, 433 F.3d
53, 64 (1st Cir. 2006); see also United States v. Robinson, 435
F.3d 699, 701 (7th Cir. 2006) (“Guideline ranges must
be determined correctly as a matter of law.”). A district
court simply cannot substitute its own ratio for the 100:1
ratio. See United States v. Williams, No. 05-13205, ___ F.3d
___, 2006 WL 2039993, at *11 (11th Cir. July 21, 2006)
(“Congress concluded the 100-to-1 ratio is justified, and
the courts have no authority to change that.”); United States
v. Eura, 440 F.3d 625 (4th Cir. 2006); Pho, 433 F.3d 53.
  Because the district court did not follow the appropriate
methodology in sentencing Mr. Jointer, and because that
error certainly can not be characterized as harmless error,
we must remand the case for resentencing. We have
stated that, although the Guidelines are no longer manda-
tory, “errors in their application remain relevant,” United
States v. Skoczen, 405 F.3d 537, 549 (7th Cir. 2005), and such
No. 05-4632                                                   9

errors may require us to remand for resentencing, see United
States v. Chamness, 435 F.3d 724, 726 (7th Cir. 2006). The
Mandatory Sentencing Act, 18 U.S.C. § 3742(f)(1), requires
resentencing when a sentence was imposed “as a result of
an incorrect application of the sentencing guidelines.” This
provision of the Mandatory Sentencing Act survives Booker,
and thus errors in the Guidelines application must be
remanded for resentencing even post-Booker. See United
States v. Scott, 405 F.3d 615, 617 (7th Cir. 2005).
  To ensure that our holding is received in the proper
context, we emphasize that, once a correct guideline sen-
tence has been calculated, the district court must fashion an
individual sentence for the defendant before it by evaluating
all the facts and circumstances of the case in light of the
criteria set forth by Congress in 18 U.S.C. § 3553(a). See Pho,
433 F.3d at 65 (“[W]e do not intend to diminish the discre-
tion that, after Booker, the district courts enjoy in sentencing
matters or to suggest that, in a drug trafficking case, the
nature of the contraband and/or the severity of a projected
guideline sentence may not be taken into account on a case-
by-case basis.”); see also Williams, 2006 WL 2039993, at *11
(holding that “a sentence below the Guidelines range in a
crack cocaine case” may be permissible “so long as it reflects
the individualized, case-specific factors in § 3553(a)”). At
this later stage of the sentencing proceedings, the Sentencing
Commission’s detailed reports on crack and cocaine sen-
tencing3 may have “practical utility” to a district


3
  The Sentencing Commission has issued reports to Congress in
1995, 1997 and 2002, recommending that Congress narrow the
sentencing disparity between crack and cocaine offenders. The
2002 report was extensive and drew on a variety of different
                                                (continued...)
10                                                  No. 05-4632

court’s evaluation of the facts and circumstances of the
individual case in light of the § 3553(a) factors. Eura,
440 F.3d at 634 (Michael, J., concurring). However, as
Judge Michael cautioned, the analysis and data contained in
the reports cannot alone justify a below-guidelines sentence;
they can be considered only “insofar as they are refracted
through an individual defendant’s case.” Id. at 637 (emphasis
in original). This is not to say, of course, that a district court
must consult the Sentencing Commission reports in any
given sentencing. See United States v. Gipson, 425 F.3d 335,
337 (7th Cir. 2005) (per curiam) (holding that there is no
requirement that a district court take into account the
discrepancy between crack and cocaine sentencing to give
a below-guidelines sentence). Nor will reliance on the
Sentencing Commission reports shield a district court from
a reasonableness review on appeal because, at the core, the
district court must still tie the § 3553(a) factors to the
individual characteristics of the defendant and the offense
committed. See Eura, 440 F.3d at 634 (stating that, in order to
deviate from the applicable range when sentencing a crack
defendant, “a sentencing court must identify the individual
aspects of the defendant’s case that fit within the factors listed
in 18 U.S.C. § 3553(a)” (emphasis in original)).



3
  (...continued)
sources, including recent literature on the effects and use of
cocaine, an empirical study of federal cocaine offenders, public
comments, and public hearing testimony from physicians, law
enforcement officials, civil rights leaders and academics. See
United States Sentencing Comm’n, Report to Congress: Cocaine
and Federal Sentencing Policy (2002); see also Eura, 440 F.3d
at 635-36 (Michael, J., concurring) (discussing the various Sen-
tencing Commission reports).
No. 05-4632                                               11

                       Conclusion
  For the foregoing reasons, the judgment of the district
court is reversed, and the case is remanded to the district
court for resentencing consistent with this opinion.
                                 REVERSED and REMANDED

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-9-06
