                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0789n.06

                                           No. 09-2173

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                    Dec 28, 2010
                                                                              LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE WESTERN
                                       )                 DISTRICT OF MICHIGAN
KENNETH JAMES JOHNSON,                 )
                                       )
      Defendant-Appellant.             )                         OPINION
                                       )
_______________________________________)


Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.*

       KAREN NELSON MOORE, Circuit Judge.

       When this panel previously considered Kenneth James Johnson’s sentence for conspiracy to

distribute and distribution of crack cocaine, we remanded for resentencing in light of Spears v.

United States, — U.S. —, 129 S. Ct. 840 (2009). Now, Johnson has been resentenced to 110 months

in prison, a term that is the same length as his original sentence. Rather than expressing agreement

or disagreement with the crack guidelines, the district court asserted that Congress had authorized

the 100-to-one crack-to-powder ratio and deemed the courts an improper forum to reconsider the

ratio. Kimbrough directly contradicts those assertions. Because the district court did not fully




       *
        The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 09-2173
United States v. Johnson

recognize the scope of its discretion, we VACATE Johnson’s sentence and REMAND for

resentencing.

                                        I. BACKGROUND

       In 2007, Johnson pleaded guilty to conspiracy to distribute more than five grams of cocaine

base (crack), one count of crack distribution, and four counts of distributing more than five grams

of crack. We detailed the history of Johnson’s case in our prior decision. See United States v.

Johnson, 553 F.3d 990, 992–95 (6th Cir. 2009). Of relevance to this appeal is Johnson’s criminal

history, which includes twenty-three convictions spanning over three decades. Many of the crimes

from which his criminal history was calculated, such as operating while impaired and second-degree

retail fraud, were relatively minor. Others, such as aggravated domestic violence, were more severe.

Some crimes, including unarmed robbery and assault, were too remote to include in the criminal-

history computation. Totaled, the district court identified 15 criminal-history points, placing Johnson

in Criminal History Category VI. Johnson argued that Category VI overrepresented the seriousness

of his offenses, but the district court denied Johnson’s request for a downward departure. Combined

with an offense level of 25, the Sentencing Guidelines produced a range of 110 to 137 months of

imprisonment. Acknowledging its authority to employ a crack-to-powder ratio other than 100 to

one, the district court opted to use the 100-to-one ratio in light of Congress’s repeated failure to

adopt a different ratio. The district court sentenced Johnson to 110 months in prison, which was the

same sentence that it had imposed at Johnson’s first sentencing. Johnson has appealed his new

sentence.



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United States v. Johnson

                                          II. ANALYSIS

A. Criminal-History Category

       Johnson contends that the district court erred by not departing downward when calculating

his criminal-history category. As we explained in our prior decision in Johnson’s case, we normally

do “‘not review a district court’s decision not to depart downward unless the record shows that the

district court was unaware of, or did not understand, its discretion to make such a departure.’”

Johnson, 553 F.3d at 999 (quoting United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert.

denied, — U.S. —, 129 S. Ct. 469 (2008)). “[W]e presume that the district court understood its

discretion, absent clear evidence to the contrary.” Santillana, 540 F.3d at 431. Here, the

resentencing transcript reflects the district court’s understanding and exercise of its discretion. The

district court found that Category VI accurately reflected Johnson’s “very very substantial” criminal

history, which exceeded the minimum required for placement in Category VI. R. 100 (Resentencing

Tr. at 31). When determining the likelihood that Johnson would reoffend, the district court

emphasized Johnson’s failure to participate in rehabilitation programs in state prison and the number

of crimes that were not factored into his criminal history. Id. The district court’s reasoning reveals

an understanding of its power to depart from the Guidelines. We will not review its decision to

refrain from exercising that power.

B. Spears and Sentencing Disparities

       We remanded Johnson’s case so that the district court could consider Johnson’s sentence in

light of Spears, in which the Supreme Court clarified its holding in Kimbrough v. United States, 552

U.S. 85 (2007). Spears authorized district courts “to reject and vary categorically from the crack-

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United States v. Johnson

cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 129 S. Ct. at

843–44. “Although Kimbrough allows district courts to consider the policies of the Guidelines and

potential disparities resulting from them when determining an appropriate sentence, it by no means

held that the failure to adopt one particular policy perspective renders a within-Guidelines sentence

substantively unreasonable.” United States v. Jones, 370 F. App’x 577, 582 (6th Cir. 2010)

(unpublished opinion). That conclusion is equally true of Spears. Using the Guidelines ratio is not

automatically unreasonable. See United States v. Simmons, 587 F.3d 348, 365–66 (6th Cir. 2009)

(“[T]he disparate treatment of crack and powder cocaine advised by the Guidelines is not per se

unreasonable or unconstitutional.”), cert. denied, 130 S. Ct. 2116 (2010). “[W]hen a district court

observes that the Guidelines are advisory and provides no indication that policy disagreements are

not a proper basis to vary, then a sentence within the Guidelines range remains presumptively

reasonable on appeal.” Id. at 364. On the other hand, when a district court indicates that policy

disagreements are not a proper basis to vary, then the resulting sentence is not presumptively

reasonable. More fundamentally, in such a case, the district court has committed procedural error

by failing to appreciate the scope of its discretion. See United States v. Santillana, 540 F.3d 428, 431

(6th Cir.), cert. denied, 129 S. Ct. 469 (2008).

       At Johnson’s resentencing, the district judge purported to recognize the advisory character

of the Guidelines. See R. 100 (Resentencing Tr. at 25–26) (“I fully recognize my authority to vary

from the crack/powder cocaine guidelines based solely on a policy disagreement with the 100 to one

ratio. . . . The operative word in the Kimbrough case is may, m-a-y.”). However, the district judge’s

remarks about the proper role of courts reveal his belief that a policy disagreement is not a proper

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United States v. Johnson

basis for a judge to vary. The district court agreed with the 100-to-one ratio, not for its substance,

but because “Congress has said 100 to one is the appropriate ratio by directly establishing the

mandatory minimums, which in effect engrafted a 100 to one ratio on the criminal statutes[,] or

indirectly by not changing the law in the face of many opportunities to do so.” Id. at 26. After

documenting the history of congressional inaction at length, the district judge reasoned that “the

legislative branch of government is precisely the correct forum for this policy judgment. Courts are

ill-equipped to make these decisions.” Id. at 28; see also id. at 30 (“I believe that decision is for the

legislative and executive branches of the government and not for this Court.”). The district court

concluded that deviating from the 100-to-one ratio would increase the probability of sentencing

disparities among defendants who are sentenced for crack offenses because judges differ “within

districts and across the country” and because judges cannot predict future changes that Congress

might enact. Id. at 29.

        The district court’s analysis is contrary to Kimbrough, which explained that the crack

guidelines were not based on the sort of “empirical data and national experience, guided by a

professional staff with appropriate expertise,” that normally characterizes the institutional

competence of the Commission. 552 U.S. at 109 (internal quotation marks omitted). Kimbrough

clarified the irrelevance of congressional deference as well: the relevant statute “says nothing about

the appropriate sentences” for crack offenders who fall between the statutory minimum and

maximum and the Court “decline[d] to read any implicit directive into . . . congressional silence.”

Id. at 103. In fact, the absence of a congressional mandate to use the 100-to-one ratio is what

enabled the Supreme Court to afford discretion to district courts. Id. at 102–06. Finally, Kimbrough

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United States v. Johnson

denied that unwarranted disparities were a reason to tie district courts to the 100-to-one ratio. Id.

at 106–08 (describing disparities as “a necessary cost of the remedy”).

        In light of Kimbrough, the district court’s decision constituted procedural error. While

district judges have wide discretion in fixing a crack-to-powder ratio, they are not free to cede their

discretion by concluding that their courtrooms are the wrong forum for setting a crack-to-powder

ratio. See United States v. Herder, 594 F.3d 352, 363 (4th Cir. 2010) (holding that, when a district

court uses the Guidelines ratio because “‘Congress has decided that that’s an appropriate ratio,’” it

has “failed to recognize its discretion to sentence outside the crack cocaine Guidelines”); United

States v. Jones, 531 F.3d 163, 180–82 (2d Cir. 2008) (remanding for resentencing due to ambiguity

about the district court’s understanding of its discretion when it said the crack-powder disparity is

“‘what it is, and I think the Court in general is wise to follow that directive and not substitute its own

view’”); United States v. Tabor, 531 F.3d 688, 690–92 (8th Cir. 2008) (remanding for resentencing

because Kimbrough later rejected each reason that the district judge had given for using the 100-to-

one ratio: congressional intent, fear of sentencing disparities, and lack of institutional capacity). By

failing to recognize the extent of its discretion, the district court did not comply with our instructions

for the prior remand.

        On remand from this decision, the district court may, as a matter of policy, agree or disagree

with the Guidelines ratio that designates crack offenses as more serious than powder offenses. But




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No. 09-2173
United States v. Johnson

it must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional

competence, deference to Congress,1 or the risk that other judges will set different ratios.

C. Reasonableness

          Johnson asserts that his sentence was both procedurally and substantively unreasonable. He

mentions one alleged procedural error: the district court said that it would “consider” his

post-sentencing rehabilitation yet imposed the same sentence as before. R. 100 (Resentencing Tr.

at 35).

          Whether district courts may vary downward based on postsentencing rehabilitation is a

question on which the Supreme Court has granted certiorari. United States v. Pepper, 570 F.3d 958

(8th Cir. 2009), cert. granted, 130 S. Ct. 3499 (2010); see also Brief of the United States at 29–51,

Pepper, No. 09-6822 (S. Ct. Aug. 2010) (conceding that postsentencing rehabilitation is a

permissible consideration); cf. United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006) (holding

that district courts may not consider postsentencing rehabilitation on Booker remands). But the

district court here, proceeding as though it had the legal authority to consider postsentencing

rehabilitation, elected not to vary from the Guidelines based on the facts of Johnson’s case. As a

result, resolution of the legal question pending before the Supreme Court does not alter the outcome


          1
        In fact, while Johnson’s latest appeal was pending before this court, Congress passed the
Fair Sentencing Act of 2010 “[t]o restore fairness to Federal cocaine sentencing.” See Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The act reduced the
discrepancy in mandatory minimums between crack and powder offenses from 100 to 1 down to 18
to 1. The law does not apply retroactively, and a panel of this court has held that “we must apply the
penalty provision in place at the time [that Johnson] committed the crime.” United States v.
Carradine, 621 F.3d 575, 580 (6th Cir. 2010). Nevertheless, its passage demonstrates that even
Congress has gravitated away from the 100-to-one ratio.

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No. 09-2173
United States v. Johnson

of Johnson’s appeal.2 See United States v. Vicol, No. 08-2547, 2010 WL 4810215, at *4 (6th Cir.

Nov. 19, 2010) (unpublished opinion) (finding the refusal to consider postsentencing rehabilitation,

if erroneous, to be harmless because the district court said that the sentence would not have

changed).

       Here, the district court did what it promised: it considered Johnson’s postsentencing

rehabilitation. It simply found Johnson’s conduct inadequate to justify a lesser sentence. R. 100

(Resentencing Tr. at 35–36) (“[R]ecognizing Mr. Johnson[’s] rehabilitative efforts[,] I also must be

concerned about specifically deterring Mr. Johnson. He is starting to make strides in that regard, but

my concerns still remain high concerning whether Mr. Johnson when released will commit further

crimes.”); id. at 37 (“Mr. Johnson has made significant strides . . . [b]ut . . . is writing on a record

here that, in the Court’s judgment, requires a significant period of incarceration to make sure that

[he] continues his rehabilitative efforts . . . .”). The district court did not commit reversible

procedural error in reaching that conclusion.

       Johnson also argues that failure to consider post-sentencing rehabilitation rendered his

sentence substantively unreasonable. Because we have concluded that Johnson’s sentence was

procedurally unsound in light of Kimbrough, we do not address whether the sentence was

substantively reasonable. See United States v. Garcia-Robles, 562 F.3d 763, 768 (6th Cir. 2009).3


        2
        The district court also recommended that “Johnson be considered for the 500[-]hour
program” for drug treatment in light of his postsentencing rehabilitation efforts. R. 100
(Resentencing Tr. at 37). That recommendation is not before us in this appeal.
        3
         We also asked the district court to “show that it has adequately considered § 5G1.3(c) and
the relevant commentary in determining whether Johnson’s federal sentence should run consecutive

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United States v. Johnson

                                    III. CONCLUSION

       For the reasons stated above, we VACATE Johnson’s sentence and REMAND for

resentencing.




to his undischarged state sentence.” Johnson, 553 F.3d at 998. The district court complied, and
Johnson has not raised the issue on appeal.

                                              9
