07-3330-cr
USA v. Keller

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                                 August Term 2007

(Submitted: June 23, 2008                                                              Decided: August 14, 2008)

                                               Docket No. 07-3330-cr

UNITED STATES OF AMERICA ,

                 Appellee,

                 v.

ROBIN KELLER,

                 Defendant-Appellant.

Before: MINER , CABRANES, Circuit Judges, and BERMAN , District Judge.*


        In this appeal from a judgment of conviction in the United States District Court for the District

of Vermont (William K. Sessions, Chief Judge), defendant challenges the sentence imposed and seeks a

remand pursuant to United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), on the basis that the District

Court did not fully appreciate its discretion to consider the disparity between the Sentencing

Guidelines’ treatment of crack and powder cocaine offenses. We hold that, unless the record

unambiguously demonstrates that a district court was aware of the full extent of its discretion and

declined to exercise it, a remand is appropriate.

                 Remanded for proceedings consistent with this opinion.

                                            Joseph R. Perella, Assistant United States Attorney (Thomas D.
                                                   Anderson, United States Attorney, Gregory L. Waples,
                                                   Assistant United States Attorney, on the brief), United
                                                   States Attorney’s Office for the District of Vermont
                                                   Burlington, VT, for Appellee.

                                            E.M. Allen, Stetler, Allen & Kampmann, Burlington, VT, for
                                                   Defendant-Appellant.



        *
        The Honorable Richard M. Berman, Judge of the United States District Court for the Southern District of
New York, sitting by designation.

                                                          1
JOSÉ A. CABRANES, Circuit Judge:

         We write briefly to clarify that (1) the record must unambiguously demonstrate that the District

Court was aware of “its discretion to consider that [the disparity between cocaine base and cocaine

powder offenses in the United States Sentencing Guidelines] might result in a sentence greater than

necessary,” in order to avoid a remand pursuant to United States v. Regalado, 518 F.3d 143, 147 (2d Cir.

2008); and (2) that a Regalado remand is appropriate notwithstanding a district court’s decision to grant a

two-level departure in anticipation of pending modifications to the “crack” guidelines. Because the

record is unclear as to whether the District Court understood that it could impose a non-Guidelines

sentence based on the cocaine base-cocaine powder disparity contained in the Guidelines, we remand

the cause for the District Court to consider whether resentencing is appropriate.

                                                   BACKGROUND

         Defendant-appellant Robin Keller appeals from a judgment of conviction of the United States

District Court for the District of Vermont (William K. Sessions, Chief Judge). She pleaded guilty to

conspiracy to possess and distribute fifty grams or more of cocaine base, or “crack,” in violation of 21

U.S.C. §§ 846 and 841(a), a charge which carried a ten-year mandatory minimum, see 21 U.S.C.

841(b)(1)(A).

Sentencing in the District Court

         Defendant was sentenced on July 25, 2007. At sentencing, the District Court determined that

the applicable Guidelines range was 360 months’ to life imprisonment,1 but the Court agreed to impose

a non-Guidelines sentence, consistent with the recommendation contained in the plea agreement.

After considering the testimony of various witnesses and the parties’ arguments, the Court stated that it

had “balance[d] all of those factors, to determine a sentence which is according to 18 U.S.C. § 3553(a)


          1
            The District Court’s findings were consistent with the recommendations contained in the Pre-Sentence
Report (“PSR”), based on the following calculations. The defendant’s base offense level was 38 as a result of the weight
of crack involved in the offense. See U.S.S.G § 2D1.1(c)(1). The PSR added a four-level role enhancement pursuant to
section 3B1.1(a) and deducted three levels for acceptance of responsibility, see id. § 3E1.1. Defendant’s criminal history
placed her in Category V.


                                                              2
. . . sufficiently long to satisfy the purposes of sentencing, but not overly long.” It reviewed each of the

factors in turn, along with the evidence it considered most relevant. The Court then announced that it

would “depart to criminal history category five, offense level 31, [resulting in a sentencing range of] 168

to 210 months.” This calculation was based, in part, on a two-level reduction to reflect the then-

forthcoming changes in the Sentencing Guidelines for offenses associated with crack cocaine. The

District Court explained the basis for the two-level reduction:

        [T]he reason I do that, quite frankly, is because if the Sentencing Commission were ever to
        determine that the crack adjustment of two levels was to be applied retroactively, then we
        would have to come back for a new sentencing, but, in this particular case, I am already taking
        that into consideration so there would be no need to apply a retroactive application of the
        adjustment in the guidelines because it basically is a factor.

        The parties did not raise the specific issue of the Court’s discretion to consider the crack-

powder cocaine disparity under § 3553(a). The Court did not itself acknowledge its discretion to

consider the crack-powder cocaine disparity as a basis for imposing a non-Guidelines sentence—even

though it did recognize that forthcoming changes to the Guidelines somewhat mitigated that

disparity—nor did it mention any pending cases in which such a theory was pressed, such as Kimbrough

v United States, 552 U.S.—, 128 S. Ct. 558 (2007). The Court’s only additional comments regarding the

weight of crack and the seriousness of the offense were remarks that it was “the largest crack cocaine

case . . . I think I have had in 12 years on the bench.” The Court then sentenced defendant principally

to a term of 168 months’ incarceration, a term below the otherwise applicable Guidelines range but

above the mandatory minimum.

Legal Background

        At the time that the District Court sentenced defendant, the law of our Circuit did not

acknowledge a district court’s so-called “variance discretion” with respect to whether the quantity

disparity between crack and powder cocaine set forth in the Guidelines—a 100-to-1 crack-powder




                                                     3
ratio—results in an unfair measure of the seriousness of the offense.2 See, e.g., United States v. Jones, 531

F.3d 163, 181 (2d Cir. 2008) (describing our Court’s approach to “variance discretion” prior to

Kimbrough). Indeed, we held in United States v. Castillo that neither § 3553(a) nor the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), authorized a district court to “sentence

defendants for offenses involving crack cocaine under a ratio different from that provided in the

Sentencing Guidelines.” 460 F.3d 337, 361 (2d Cir. 2006); see also United States v. Park, 461 F.3d 245,

250 (2d Cir. 2006) (same). This view was subsequently rejected by the Supreme Court in Kimbrough, 128

S. Ct. at 574, abrogating Castillo, 460 F.3d at 337 (holding that district courts should not treat the

Guidelines crack-powder ratio as mandatory); see also Gall v. United States, 552 U.S.— , 128 S. Ct. 586,

597 (2007) (holding that a district court must make an individualized assessment of sentencing

decisions). Certiorari was granted in Kimbrough in June 2007, see 127 S. Ct. 2933 (June 11, 2007) (No.

06-6330); the Court issued its decision on December 10, 2007.

         Following Kimbrough, our Court set forth principles for addressing appeals, such as this one, that

were pending at the time Kimbrough was decided. See Regalado, 518 F.3d at 150-51. Where a defendant

had not raised the issue of variance discretion before the sentencing court or otherwise challenged the

100-to-1 ratio, we could not “know whether the district court would have imposed a non-Guidelines

sentence had it been aware (or fully aware) of its discretion to deviate from the crack cocaine ranges in

light of the objectives of sentencing.” Id. at 150. For that reason, we determined that the best course

was to remand the cause so that the District Court could determine whether it would have imposed a

different sentence in light of the recognition of its discretion to impose a non-Guidelines sentence in

light of the 100-to-1 ratio. Id. at 151.


         2
            While the terms “departure” and “variance” are often used interchangeably to describe deviations from the
recommended Guideline range, see, e.g., Gall v. United States, 552 U.S. —, —, 128 S. Ct. 586, 597 (2007), as used in this
opinion, a “departure” refers to a decision by the District Court to impose a sentence outside the otherwise applicable
Sentencing Guidelines range pursuant to a provision of the Guidelines. See, e.g., U.S.S.G. § 4A1.3 (departure based on
inadequacy of criminal history category); id. § 5K1.1 (departure based on substantial assistance to authorities); cf. Irizarry v.
United States, 128 S. Ct. 2198, 2202 (2008) (concluding that as the term was used in the Federal Rules of Criminal
Procedure, “[d]eparture’ is a term of art under the Guidelines” which refers to an adjustment under the Guidelines
framework to the recommended range ). A “variance,” on the other hand, describes the District Court’s power pursuant
to 18 U.S.C. § 3553(a) to impose a sentence outside of the otherwise applicable Guidelines range, which we call a “non-
Guidelines sentence.” See, e.g., id. at 2200.
                                                                 4
        On appeal, defendant argues that (1) the District Court erred by sentencing her “under the

guidelines with a downward departure after determining that a non-guidelines sentence was

appropriate”; and (2) we should remand the cause for resentencing pursuant to our decision in Regalado,

518 F.3d at 143.

                                               DISCUSSION

        We review a district court’s imposition of a particular sentence for procedural and substantive

reasonableness, which is akin to review under an abuse-of-discretion standard. See Gall, 128 S. Ct. at

597; Regalado, 518 F.3d at 147. Where a defendant did not raise a claim before the District Court, we

review the claim for plain error. Regalado, 518 F.3d at 147. “To demonstrate plain error, a defendant

must show (1) error, (2) that is plain at the time of appellate review, and (3) that affects substantial

rights. Where these conditions are met, we have the discretion to notice a forfeited error if (4) it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Quinones, 511 F.3d 289, 316 (2d Cir. 2007).

        As an initial matter, we reject defendant’s contention that the District Court erred by agreeing to

impose a non-Guidelines sentence and then imposing a sentence that “is really just an eight level

departure within the guidelines sentencing scheme.” Appellant’s Br. at 6. In essence, she contends that

the District Court stated that it would grant a variance from the Guidelines regime but then merely

granted her a downward departure instead. While the record shows that the District Court used both

“departure” and “non-[G]uideline[s] sentence” to describe the sentence it imposed, it is also clear from

the record that the District Court relied on its power under §3553(a)—and not on any Guidelines

provision—as a basis for the seven-level “departure.” We see no error whatsoever in the District

Court’s use of the framework and terminology of the Guidelines in the course of exercising its variance

discretion. To the contrary, we have said that in order to comply with Booker, 543 U.S. at 220, a district

court must first consider the applicable guidelines range before imposing a sentence. See United States v.

                                                       5
Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (“[A] sentencing judge would commit a statutory error in

violation of section 3553(a) if the judge failed to ‘consider’ the applicable Guidelines range (or arguably

applicable ranges) as well as the other factors listed in section 3553(a), and instead simply selected what

the judge deemed an appropriate sentence without such required consideration.”). If a district court

then chooses to express its decision to impose a non-Guidelines sentence in the terminology of the

Guidelines, that decision is well within the discretion of the district court. Accordingly, we conclude

that the sentence imposed was both procedurally and substantively reasonable in this respect.

        Defendant’s second argument—that a remand pursuant to Regalado is required—raises the

recurring issue of how we will determine whether a district court understood its variance discretion,

which was recognized by the Supreme Court in Kimbrough, 128 S. Ct. at 574. As noted above, at the time

of sentencing in this case, our own case law prohibited a district court from imposing a non-Guidelines

sentence solely on the basis of that court’s disagreement with the 100-to-1 ratio provided by statute. See

Park, 461 F.3d at 250. Nevertheless, the Government insists that “even before [the Supreme Court

issued its decision in] Kimbrough, Judge Sessions was aware of his authority to depart [from the

guidelines] based upon the crack/powder cocaine disparity.” Appellee’s Supplemental Br. of 7/8/08 at

2.

        The Government points to various indications in the record and outside the record of Chief

Judge Sessions’s awareness of his “variance discretion,” but these fall short of an explicit statement by

the sentencing court that it was aware of its discretion to impose a lighter sentence but declined to do

so. Accordingly, the Government suggests that remanding the case to the District Court pursuant to

Regalado under these circumstances would be tantamount to imposing a requirement that a district court

must explicitly state that it was aware of its variance discretion. The Government instead presses the

view that we should not regard a district court’s silence on the issue of the crack-powder disparity as

indicating that the court “was unaware of [its] potential authority to depart from the advisory Guidelines


                                                     6
range based on that disparity” (emphasis added). Appellee’s Supplemental Br. of 7/8/08 at 4. We have

disavowed formulaic requirements, see Crosby, 397 F.3d at 113, and “robotic incantations,” see United

States v. Brown, 98 F.3d 690, 694 (2d Cir. 1996), for discharging a court’s duties during sentencing, and we

again decline to impose any such requirement.3

         We cannot, however, adopt the Government’s theory that where a record is silent on the district

court’s understanding of its variance discretion, we can nevertheless assume that the court understood

its various sentencing options. See Regalado, 518 F.3d at 148 (“The unusual circumstances surrounding

application of the crack Guidelines in the Circuit after Booker and before Castillo justify a narrow and

limited exception to our general rule that sentencing courts are presumed to know and follow the

applicable sentencing law.”). While we do not impose an explicit statement requirement, we reiterate

that, where there are any ambiguities in the record on this point, a remand for clarification is

appropriate. Cf. United States v. Ekhator, 17 F.3d 53, 55 (2d Cir. 1994) (“[I]f we are unable to discern

whether the district court’s refusal to depart [downward] resulted from the exercise of its discretion or

instead from a perceived, but mistaken, lack of authority, we remand to the district court for

resentencing.” (citations omitted)); United States v. Ogbondah, 16 F.3d 498, 501 (2d Cir. 1994) (“If the

record is ambiguous [as to whether the district court understood its authority to depart downward on a

particular ground], as it is here, we must remand to the district court to determine whether it understood

the full scope of its authority.” (citation omitted)).


         3
            A passing mention in a footnote in United States v. Regalado may appear to leave open the possibility that such
an explicit statement is required. See 518 F.3d 143, 150 n.4 (2d Cir. 2008). There, we observed that the unusual
procedural posture of that case made it difficult to determine whether the district court was aware of its discretion to
consider the impact of the 100-to-1 ratio:

         This appeal presents an additional wrinkle because on a Crosby remand— where the issue is whether the
         sentencing judge would have imposed a non-trivially different sentence had it anticipated Booker— there would
         have been no occasion for the Court to consider the harshness of the 100-to-1 ratio. Even if the court did consider
         this issue, it would not have had to say so explicitly.

Id. (emphasis added). While this statement could be read to imply that after Kimbrough an explicit statement was required,
it is merely an explanation for why remand was appropriate in that case although the district court could have considered
the ratio on the Crosby remand. Regalado did not impose an explicit statement requirement.

                                                                7
         In evaluating whether a Regalado remand is appropriate, we consider the evidence in the record,

such as the sentencing transcript and the parties’ submissions. The strongest evidence of this kind

presented by the Government is the fact that the District Court explicitly accounted for the then-

pending changes to the crack Guidelines in the course of imposing a non-Guidelines sentence. While

this may suggest that the Court was aware of (1) its discretion generally to depart from the Guidelines

and (2) the pending changes to the Guidelines’ treatment of crack cocaine, the record does not establish

that the Court was aware of its authority to impose a non-Guidelines sentence because of a

disagreement with the policy underlying the crack-powder disparity in the Guidelines. Indeed, these

possible indications of the District Court’s understanding cannot surmount the fact that, as of the date

defendant was sentenced, the District Court was bound by our holding in Castillo that it did not have

this discretion. See Regalado, 460 F.3d at 361. We decline to consider the non-record evidence submitted

by the Government for this purpose, and such evidence does not appear to be probative of the District

Court’s awareness of its variance discretion in any event.4 In light of the ambiguity of the record on this

point, we cannot be confident that the District Court understood its variance discretion, and therefore

we must remand the case for further consideration by the District Court.

                                                    CONCLUSION

         For the reasons stated above, the judgment is AFFIRMED and the cause REMANDED for

consideration of whether resentencing is appropriate pursuant to Regalado, 518 F.3d at 143.




         4
           Chief Judge Sessions’s statements at a sentencing hearing for defendants in a different case several months
after he sentenced Keller cannot demonstrate his awareness of his discretion at the time Keller was sentenced. Similarly,
we cannot place any weight on Chief Judge Sessions’s likely personal knowledge of sentencing issues, because of his
service as Vice Chair of the United States Sentencing Commission, as a basis for concluding that he was aware of his
discretion to depart in order to account for the crack-powder disparity. An inference on this basis would be speculative
at best.

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