                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3121

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

JUWAN M ATTHEWS,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 11-Cr-11—Rudolph T. Randa, Judge.



     A RGUED A PRIL 17, 2012—D ECIDED D ECEMBER 4, 2012




 Before B AUER, K ANNE, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. As part of a major interagency
effort to combat gang violence and drug trafficking in
Racine, Wisconsin, state and federal officers identified
Juwan Matthews as an “impact player” in the Racine
drug trade and used a confidential informant to target
him in a series of controlled buys. Matthews was
arrested after he sold crack cocaine to the informant on
five separate occasions in 2010. He was indicted on five
2                                               No. 11-3121

counts of distributing crack, pleaded guilty to two, and
was sentenced to 78 months in prison, the midpoint of
a properly calculated sentencing guidelines range.
  On appeal Matthews challenges two aspects of his
sentence. First, he argues that the district court com-
mitted procedural error by treating the 18:1 crack-to-
powder sentencing ratio in the guidelines as binding.
Second, he claims that the court’s decision to adhere
to that ratio created unwarranted sentence disparities
because other judges in the same district used a 1:1 ratio
in like cases. See 18 U.S.C. § 3553(a)(6) (instructing
district courts to consider whether a sentence results
in “unwarranted sentence disparities”).
  We reject these arguments and affirm. The district court
commented on the drug-quantity ratio in direct response
to Matthews’s argument that the court should follow the
lead of other judges in the district and impose a below-
guidelines sentence based on a 1:1 crack-to-powder ratio.
The judge declined to do so, deferring instead to the
18:1 policy adopted in the Fair Sentencing Act of 2010
and the corresponding amendments to the guidelines.
Although the judge adopted a highly deferential stance
toward the judgment of Congress and the Sentencing
Commission, there is no indication that he misunder-
stood his discretion to use a different ratio. Matthews’s
argument to the contrary is implausible this far removed
from United States v. Booker, 543 U.S. 220 (2005), Kimbrough
v. United States, 552 U.S. 85, 109 (2007), and Spears v.
United States, 555 U.S. 261 (2009). Moreover, the judge’s
decision to adhere to the ratio endorsed by Congress
No. 11-3121                                              3

and the Commission does not make the resulting within-
guidelines sentence unreasonable merely because other
judges in the district exercised their discretion to use a
different ratio. A sentence disparity that results from
another judge’s policy disagreement with the guidelines
is not “unwarranted” under § 3553(a)(6).


                     I. Background
  The Racine Police Department, in cooperation with
federal law-enforcement agencies, launched a sustained
campaign against gang violence and drug trafficking
in the Racine area starting in 2008. As part of this
special task-force effort, agents began investigating
Juwan Matthews and eventually targeted him for “take
down” using a confidential informant to make con-
trolled purchases of crack cocaine. In five separate trans-
actions between March 9 and September 17, 2010,
Matthews sold a total of 64.5 grams of crack to the in-
formant.
  A federal grand jury indicted Matthews on five counts
of distributing crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B), and (b)(1)(C). Pursuant to a plea
agreement, Matthews pleaded guilty to two counts stem-
ming from drug sales on August 10 and September 17,
2010—transactions that took place after the August 3,
2010 adoption of the Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372. The case proceeded to sen-
tencing on September 7, 2011. The presentence report
(“PSR”) applied the amended guidelines containing the
drug-quantity tables corresponding to the Act’s much-
reduced 18:1 crack-to-powder ratio (down from 100:1).
4                                                No. 11-3121

See U.S.S.G. § 2D1.1 & app. C amends. 746, 748 (Nov. 1,
2010); see also Dorsey v. United States, 132 S. Ct. 2321, 2329
(2012). The amended guidelines called for a base
offense level of 26, which when adjusted for ac-
ceptance of responsibility and combined with
Matthews’s criminal-history category of IV, yielded a
recommended sentencing range of 70 to 87 months.1
  Matthews sought a below-guidelines sentence corre-
sponding to a 1:1 crack-to-powder ratio based on sen-
tences received by other defendants in the Eastern
District of Wisconsin. As a result of arrests made in
the course of the two-year task-force initiative in
Racine, the government filed three separate multi-
defendant drug cases against a total of 61 defendants.2
The cases were assigned to other judges in the district.
By September 2011, when Matthews was sentenced,
40 of the 61 defendants had been convicted and sen-
tenced to below-guidelines terms of imprisonment based
on discretionary decisions by the sentencing courts to
use a 1:1 crack-to-powder ratio. Matthews submitted a
chart showing that the average guidelines range for the
40 defendants was 156 to 197 months, but the average
sentence was 70.5 months. Using a 1:1 ratio in his case
would yield an offense level of 16 and a guidelines
range of 24 to 30 months. Matthews urged the judge to



1
 Matthews’s case does not involve a statutory mandatory
minimum.
2
   The cases are United States v. Bonner, No. 08-CR-162-JPS;
United States v. Barnes, No. 09-CR-248-LA; and United States
v. Smith, No. 10-CR-188-CNC.
No. 11-3121                                               5

impose a sentence of 24 months, at the bottom of this
hypothetical range, in order to avoid the “unwarranted
sentence disparities” forbidden by § 3553(a)(6).
  The government responded by presenting the testi-
mony of a Racine police detective who told the court that
the more lenient sentence would undermine the task
force’s efforts by communicating to would-be offenders
that they would get off easy if caught. The prosecutor
also noted that the 40 defendants in the three
multidefendant cases had been sentenced in 2009 and
2010, before the 100:1 crack-to-powder ratio was reduced
to 18:1 by the Fair Sentencing Act and the cor-
responding amendments to the guidelines. The pros-
ecutor reminded the court that during this time the
Department of Justice’s policy on crack-cocaine sen-
tencing was in a state of flux. See Memorandum for
all Federal Prosecutors from David W. Ogden, Deputy
Att’y Gen., U.S. Dep’t of Justice (May 1, 2009), http://www.
justice.gov/oip/docs/dag-m em o-sentencing-cocaine-
offenses.pdf.
  More specifically, on May 1, 2009, the Department
of Justice released a memorandum announcing that
“[t]he President and Attorney General believe Congress
should eliminate the sentencing disparity between
crack cocaine and powder cocaine” and that the Depart-
ment would work with Congress and the Sentencing
Commission toward that end. Id. In the meantime,
the Department instructed its attorneys to determine on
a case-by-case basis whether to oppose defense requests
to vary from the guidelines by using a ratio other than
100:1—adhering, of course, to any applicable statutory
6                                             No. 11-3121

minimums. Id. The prosecutor candidly acknowledged
that during this interim period, “it’s fair to say [that]
the Department of Justice, the United States Sentencing
Commission, and Congress, were a bit at sea in terms
of what they were trying to do with crack cocaine of-
fenses.” He conceded that for “many” of the defendants
in the three Racine task-force cases, “the United States
was actively advocating for [a 1:1 ratio] at the direction
of the Department.”
  But the prosecutor also noted that with the adoption
of the Fair Sentencing Act,
    now we have a definitive statement from Congress
    that has been adopted by the United States Sen-
    tencing Commission suggesting that the only way to
    sentence people is 18-to-one. Again, all the argu-
    ments for one-to-one ratio were presented to
    Congress . . . [, and] nonetheless Congress still came
    out with an 18-to-one ratio. And I think that is the
    ratio that should control here.
He also advised the court that some of the defendants
in the other cases had received credit for cooperating
with the government, which affected the length of their
sentences by operation of U.S.S.G. § 5K1.1 and distin-
guished their cases from Matthews’s. The prosecutor
recommended a sentence of 87 months, at the top of
the guidelines range.
  The district court declined Matthews’s invitation to
impose a sentence based on a hypothetical range derived
from a 1:1 crack-to-powder ratio. The judge noted that
since the adoption of the Fair Sentencing Act and the
corresponding amendments to the sentencing guide-
No. 11-3121                                             7

lines, “the guidelines are 18-to-one relative to crack co-
caine” and “that . . . is something that the Court is held
to.” The judge explained that he would not be “driven”
by his “own attitudes towards the severity of crack
versus powder,” but would follow “what the Legislature
says.” To adopt Matthews’s argument, the judge said,
would go “against the will and desire of the Con-
gress[, w]hich . . . represents the will of the people.”
  The court then weighed the § 3553(a) sentencing
factors, emphasizing in particular that Matthews’s
criminal-history category understated the seriousness of
his prior record, which began at age 11 and included
felony gun possession, resisting an officer, and a “pretty
significant” armed robbery at a gasoline station in
which Matthews “clubb[ed]” the victim and “thr[ew] him
in a storage room.” The judge ultimately rejected the
sentencing recommendations of both the prosecution
and the defense and settled on a sentence of 78 months,
in the middle of the guidelines range.
  Before the hearing concluded, the prosecutor asked
the judge to clarify his position on the 18:1 ratio:
   MR. MANNING: . . . I would just like to ask a point
   of clarification for purposes of any potential [a]ppel-
   late record. The Court obviously recognizes under
   Supreme Court precedent that it would still be per-
   mitted to deviate from the sentencing guidelines and
   impose a one-to-one, but the Court has expressed
   its reasons for not doing that, correct?
   THE COURT: That’s correct.
Matthews timely appealed.
8                                                   No. 11-3121

                        II. Discussion
  Matthews challenges his sentence on two related
grounds. He argues that (1) the district court erroneously
treated the 18:1 crack-to-powder ratio in the guidelines
as mandatory; and (2) the court’s decision not to vary
from that ratio resulted in unwarranted sentence dis-
parities when compared to the sentences of other defen-
dants in the three multidefendant cases arising from
the efforts of the Racine task force.3 See 18 U.S.C.
§ 3553(a)(6). The first of these arguments is a procedural
claim, which we review de novo. United States v. Grigsby,
692 F.3d 778, 791 (7th Cir. 2012); United States v. Carter,
530 F.3d 565, 577 (7th Cir. 2008). The second amounts
to a claim that the 78-month sentence is substantively
unreasonable. Reasonableness review is deferential;



3
  Matthews also argues as a threshold matter that because
the district judge did not specifically mention the guidelines
range before pronouncing sentence, the court failed to
properly calculate the range. Matthews concedes, however,
that the PSR correctly calculated the guidelines range and also
that the judge specifically said he was imposing a sentence “in
the middle of the range.” Moreover, the judge began his
sentencing remarks by saying that he would first “take into
account the guideline range established by the sentencing
guidelines” and “then integrate . . . the factors under 3553.” The
court therefore started with a guidelines range that Matthews
concedes was correctly calculated and moved from there to
evaluate the § 3553(a) sentencing factors. This was not proce-
dural error. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008).
No. 11-3121                                                9

we will reverse only for abuse of discretion. Grigsby,
692 F.3d at 791. A sentence within a properly calculated
guidelines range (as Matthews’s was) is presumed to be
reasonable, and it is the defendant’s burden to over-
come the presumption. United States v. Freeman, 691 F.3d
898, 902 (7th Cir. 2012).


A. Procedural Error
  Matthews first argues that the judge’s commentary
at sentencing demonstrates that he thought he was
required to impose a sentence based on the 18:1 crack-to-
powder ratio reflected in the drug-quantity tables in
U.S.S.G. § 2D1.1. Treating the guidelines as mandatory
is indeed a procedural error. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Scott, 555 F.3d 605,
608 (7th Cir. 2009). The Supreme Court has made it clear
that the district court’s sentencing discretion under
Booker and Kimbrough extends to a policy disagreement
with the crack-to-powder ratio in the guidelines. Spears,
555 U.S. at 265-66 (“[W]e now clarify that district courts
are entitled to reject and vary categorically from the crack-
cocaine Guidelines based on a policy disagreement with
those Guidelines.”).
  Here, the judge commented on the 18:1 ratio in
response to Matthews’s argument about sentencing
disparities compared to other defendants who were
prosecuted in connection with the task-force crackdown
on gang and drug activity in Racine. Read as a whole,
however, the judge’s remarks do not suggest that he
misunderstood the extent of his discretion; that would
10                                              No. 11-3121

be highly unusual this far removed from Booker,
Kimbrough, and Spears. Rather, the record suggests that
the judge was disinclined to substitute his own views of
the severity of crack-cocaine sentences for those of Con-
gress and the Sentencing Commission. Indeed, after
prompting from the prosecutor, the judge confirmed
that he understood he had the discretion to use a 1:1 ratio
but chose not to do so in deference to the policy judg-
ment of Congress.
  There is nothing procedurally improper about this.
The policy judgments of Congress and the Sentencing
Commission are proper anchors for the exercise of Booker
sentencing discretion. See United States v. Curb, 626 F.3d
921, 927 (7th Cir. 2010) (“[W]e have never held that a
district judge was required to reject the Sentencing Guide-
lines applicable to crack cocaine.”); United States v. Grigg,
442 F.3d 560, 564-65 (7th Cir. 2006) (“[D]istrict courts, in
the course of selecting an appropriate sentence, ought to
give respectful attention to Congress’ view that crimes
such as Mr. Grigg’s are serious offenses deserving
serious sanctions.”). The district court did not mistakenly
treat the guidelines as mandatory.


B. Reasonableness of the Sentence
  Matthews also argues that his 78-month sentence is
unreasonable because the district court “failed to give
meaningful consideration” to § 3553(a)(6), which
instructs sentencing courts to “consider . . . the need to
avoid unw arranted sentence disparities among
defendants with similar records who have been found
No. 11-3121                                            11

guilty of similar conduct.” This argument rests on a
comparison of his sentence with those of the defendants
in the three contemporaneous multidefendant cases
brought in the Eastern District of Wisconsin arising out
of the work of the narcotics task force in Racine. As
we have noted, the cases were assigned to other courts,
and by the time Matthews was sentenced, 40 of the
61 defendants had received below-guidelines sentences
based on discretionary decisions by the judges to use a
1:1 crack-to-powder ratio instead of the then-prevailing
100:1 ratio.
  As a procedural matter, Matthews’s § 3553(a)(6) chal-
lenge doesn’t get very far. The record does not support
his claim that the district court inadequately considered
his argument about the need to avoid unwarranted sen-
tence disparities. After reviewing the sentencing memo-
randa filed by the parties and listening to arguments
made in open court, the judge acknowledged that a
1:1 ratio could be used and explained that he would
defer instead to Congress’s policy preference in favor of
the 18:1 ratio. Nothing more is procedurally required.
  The argument is better understood as a challenge to
the substantive reasonableness of the sentence. As a
general matter, it is not unreasonable for a judge
to agree with the sentencing policy established by Con-
gress and the Sentencing Commission, as the judge
did here. See Curb, 626 F.3d at 927-28; Scott, 555 F.3d at
610 (“If a district court may deviate from the Guide-
lines based on its disagreement with the Sentencing Com-
mission’s policy, it is equally within its authority to
12                                               No. 11-3121

adhere to the Guidelines because it concurs with the
policy judgment the Guidelines reflect.”). More to the
point, § 3553(a)(6) “disallows ‘unwarranted sentence dis-
parities’ . . . , not all sentence differences.” United States
v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). “[A] sen-
tencing difference is not a forbidden ‘disparity’ if it is
justified by legitimate considerations,” id., such as the
judge’s determination that the circumstances warrant
deference to the policy judgment of Congress or the
Sentencing Commission.
  Accordingly, we have held that “[a] sentence within a
properly ascertained range . . . cannot be treated as unrea-
sonable by reference to 3553(a)(6).” Id. Because “the
sentencing guidelines are based on national sentencing
patterns, . . . a district court necessarily considers the
interest in consistency between similarly situated defen-
dants when it considers a properly calculated guidelines
recommendation.” Grigsby, 692 F.3d at 792; see also
United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009)
(“A sentence within a Guideline range ‘necessarily’
complies with § 3553(a)(6).”).
   It is true that Booker sentencing discretion inevitably
introduces the possibility for sentence disparities among
defendants who may seem similarly situated. See United
States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc)
(“No judge is required to sentence at variance with a
Guideline, but every judge is at liberty to do so.”). The
Supreme Court has accepted this as a consequence of
its remedial decision in Booker. See Kimbrough, 552 U.S. at
107-08 (“[O]ur opinion in Booker recognized that some
No. 11-3121                                              13

departures from uniformity were a necessary cost of the
remedy we adopted.”). Matthews has not compared the
particulars of his case to the other defendants’ cases, but
instead relies solely on the policy disagreement among
the judges regarding the appropriate drug-quantity
ratio. His argument thus boils down to this: Sec-
tion 3553(a)(6) operates categorically, exerting automatic
downward pressure on sentences in a particular class
of cases (here, crack-cocaine cases) when any one judge
in the district adopts a more lenient sentencing policy
than Congress or the Sentencing Commission.
  Accepting this argument would undermine the struc-
ture of the guidelines sentencing system. “Sentencing
disparities are at their ebb when the Guidelines are fol-
lowed, for the ranges are themselves designed to treat
similar offenders similarly.” Boscarino, 437 F.3d at 638;
see also United States v. Smith, 510 F.3d 603, 610 (6th Cir.
2010) (“To find an unwarranted disparity in this case
would allow defendants to bind district courts ac-
cording to the most lenient sentence that another court
had imposed for a similar crime.”). For a period of time
other judges in the Eastern District of Wisconsin
exercised their discretion to use a 1:1 crack-to-powder
ratio instead of the then-prevailing 100:1 ratio. That does
not make it an abuse of its discretion for the district
court in this case to defer to the decision of Congress
and the Sentencing Commission to settle on the 18:1
ratio. “A district judge’s reasoned agreement with an
advisory sentencing guideline will not be deemed unrea-
sonable on appeal.” Curb, 626 F.3d at 927-28. Matthews’s
14                                       No. 11-3121

78-month within-guidelines sentence is presumed rea-
sonable, and he has not overcome the presumption.
                                          A FFIRMED.




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