                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-4146
                                    No. 05-4156
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeals from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
James Eric Moore,                        *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: February 15, 2008
                                  Filed: March 6, 2008
                                   ___________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       A jury convicted James Eric Moore of possession of crack cocaine with intent
to distribute. The district court1 declined to grant a downward departure or variance
from the advisory guidelines sentencing range and sentenced Moore to 188 months
in prison, the top of that range, followed by six years of supervised release. We
affirmed the conviction and sentence, rejecting Moore’s contention that his sentence
is unreasonable because the district court “refused to take into account the great


      1
        The HONORABLE LINDA R. READE, Chief Judge of the United States
District Court for the Northern District of Iowa.
disparity” in the penalties imposed on crack and powder cocaine offenders under the
now-advisory Guidelines. United States v. Moore, 470 F.3d 767, 770 (8th Cir. 2006).
The Supreme Court granted Moore’s petition for a writ of certiorari, vacated our
judgment, and remanded for further consideration in light of its recent decision in
Kimbrough v. United States, 128 S. Ct. 558 (2007). Moore v. United States 128 S.
Ct. 858 (2008). We conclude that the district court did not make the error of law
identified in Kimbrough and did not abuse its substantial discretion in imposing a
sentence within the guidelines range. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Accordingly, we again affirm.

        Under § 2D1.1 of the Guidelines, a drug trafficker dealing in crack cocaine is
subject to the same sentence as one dealing in one hundred times more powder
cocaine. This sentencing relationship is commonly referred to, rather misleadingly,
as a “100:1 ratio.” The Sentencing Commission based these provisions on Congress’s
decision to adopt the same ratio in the mandatory minimum sentences for drug
offenses found in 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), (B)(ii) and (iii). See
Kimbrough, 128 S. Ct. at 567. Though the resulting disparity has long been heavily
criticized, Congress until recently rejected numerous Sentencing Commission
proposals to reduce or eliminate it.2 During the mandatory Guidelines era, we
consistently held that the harsher penalties imposed on crack cocaine offenders were
neither unconstitutional nor a proper basis for a downward departure under the
Guidelines. See United States v. Lewis, 90 F.3d 302, 306 (8th Cir. 1996).

      When the Supreme Court declared the Guidelines advisory in United States v.
Booker, 543 U.S. 220 (2005), some district courts outside this circuit quickly held that
the harsh crack cocaine penalties produced by the 100:1 ratio were a valid basis for
a downward variance from the advisory guidelines range. See, e.g., United States v.

      2
       Effective November 1, 2007, the Commission amended § 2D1.1 to reduce the
sentencing disparity between crack and powder cocaine offenses and later made that
amendment retroactive. See USSG App. C, Amend. 706, 711.

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Perry, 389 F. Supp. 2d 278 (D.R.I. 2005). At the time of Moore’s sentencing in
November 2005, our court had not considered this question. Citing decisions such as
Perry and the Sentencing Commission’s rejected proposals to amend the crack cocaine
guidelines, Moore argued that “a sentence below the Guidelines range is warranted
in view of the unreasonableness of the Guidelines’ treatment of crack cocaine versus
powder cocaine offenders.” The district court responded:

      With regard to the crack and powder cocaine difference, that is the law.
      I’m applying the law as it currently stands. If that is going to be
      changed, that is a congressional matter. Congress is the one who looks
      at the guidelines and decides whether or not they should be put in -- in
      force. . . . I’ll be following what Congress has approved, which are the
      current guidelines that make that differentiation.

The district court then correctly calculated the guidelines range sentence, which
included an enhancement for obstruction of justice because Moore lied repeatedly in
testifying at trial and at the sentencing hearing. After considering each of the
sentencing factors in 18 U.S.C. §§ 3553(a)(1) and (2), the court declined to depart
downward or to grant a downward variance because “[t]his is not an atypical case or
an atypical defendant.” Noting that Moore committed this offense while on
supervised release from a prior drug conviction, “has a long criminal history dating
back to age twelve,” and has the ability to work but has not worked steadily, the court
imposed a 188-month sentence, the top of the advisory guidelines range.

       One week after Moore was sentenced, we rejected the argument that Booker
mandates a variance from the guidelines range because the crack-powder sentencing
disparity is inherently unreasonable. United States v. Cawthorn, 429 F.3d 793, 802-03
(8th Cir. 2005); see United States v. Tabor, 439 F.3d 826, 830-31 (8th Cir. 2006). But
three weeks later, another judge in the Northern District of Iowa held that the 100:1
ratio is inherently unreasonable and granted a downward variance based on an
alternative range calculated by using a 20:1 ratio. The government appealed that

                                         -3-
sentence and, to avoid the prospect of inconsistent panel decisions on this recurring
question, we granted initial en banc consideration and reversed, joining many other
circuits in rejecting a downward variance based solely on the district court’s
categorical rejection of the 100:1 ratio. United States v. Spears, 469 F.3d 1166, 1178
(8th Cir. 2006) (en banc). In affirming Moore’s sentence, we relied on the en banc
decision in Spears, which has also been vacated and remanded for further
consideration in light of Kimbrough. Spears v. United States, 128 S. Ct. 858 (2008).

        In Kimbrough, the Supreme Court held that, “under Booker, the cocaine
Guidelines, like all other Guidelines, are advisory only” and therefore the court of
appeals erred “in holding the crack/powder disparity effectively mandatory.” 128 S.
Ct. at 564. The Supreme Court did not hold, as the district court held in Spears, that
the crack cocaine guidelines are categorically unreasonable and should therefore be
replaced with a judicial substitute such as the 20:1 ratio. Rather, the Court concluded
that, in making the particularized sentencing determination required by 18 U.S.C.
§ 3553(a), the district court “may consider the disparity between the Guidelines’
treatment of crack and powder cocaine offenses.” Id. Indeed, in concluding that the
sentence in Kimbrough “should survive appellate inspection” under Booker and Gall,
the Court noted that the district court “did not purport to establish a ratio of its own,”
but instead “properly homed in on the particular circumstances of Kimbrough’s case.”
Id. at 575-76.

       In this case, the district court sentenced Moore prior to our en banc decision in
Spears. The court rejected Moore’s contention that the 100:1 ratio, without more,
warranted a downward variance. But the court did not state it had no discretion under
Booker to take the crack/powder guidelines disparity into account in deciding whether
a variance was warranted by the discretionary § 3553(a) factors. As there was then
no circuit authority to the contrary, we presume the district court was aware that
Booker granted it discretion to vary downward based upon the impact of the crack
cocaine guidelines on this defendant, but elected not to exercise that discretion. Cf.

                                           -4-
United States v. Riza, 267 F.3d 757, 759 (8th Cir. 2001). Thus, like the district court
in Kimbrough, the district court here committed no “significant procedural error” in
applying Booker. Gall, 128 S. Ct. at 597. We must also review the substantive
reasonableness of the 188-month sentence. In doing so, the Sentencing Commission’s
long-standing opposition to the 100:1 ratio provides some basis for not applying our
normal presumption that a sentence within the advisory guidelines range is reasonable.
See Kimbrough, 128 S. Ct. at 575. But whether or not the sentence in this case is
presumptively reasonable, the district court’s careful explanation of why the § 3553(a)
factors warranted a sentence at the top of Moore’s advisory guidelines range requires
us to conclude that the sentence is substantively reasonable under “the deferential
abuse-of-discretion standard of review that applies to all sentencing decisions.” Gall,
128 S. Ct. at 598.

       For the foregoing reasons, and for the reasons stated in our prior opinion
regarding all other issues raised in these consolidated appeals, the separate judgments
of the district court dated November 21, 2005, are affirmed.
                         ______________________________




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