                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0140p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 07-2250
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 BRYAN MICHAEL VANDEWEGE,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
                 No. 06-00263—Robert J. Jonker, District Judge.
                                Argued: October 22, 2008
                            Decided and Filed: April 8, 2009
               Before: KEITH, MERRITT, and GIBBONS, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: David L. Kaczor, FEDERAL PUBLIC DEFENDER’S OFFICE, WESTERN
DISTRICT OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Richard D. Stroba, FEDERAL PUBLIC DEFENDER’S OFFICE, WESTERN
DISTRICT OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
     MERRITT, J., delivered the opinion of the court, in which KEITH, J., joined.
GIBBONS, J. (pp. 4-5), delivered a separate opinion concurring in the judgment.
                                   _________________

                                         OPINION
                                   _________________

        MERRITT, Circuit Judge. The defendant, who is addicted to cocaine, appeals his
162-month sentence for distribution of cocaine, a significant part of which is attributable to
12.3 grams of crack cocaine found underneath the passenger-side floorboard mat of his car.



                                              1
No. 07-2250          United States v. Vandewege                                         Page 2


On appeal, he contests only the portion of his sentence attributed to the 12.3 grams and, in
addition, requests resentencing because of the recent retroactive application of new crack
cocaine guidelines, an argument with which the government basically agrees.

        The defendant himself did not admit or deny knowledge of the 12.3 grams, or that
he possessed it for distribution, but his counsel argued that the sentencing court should not
attribute it to him because there is no direct evidence that he knew it was under the floor mat
of his car or that it was not for personal use. The defendant does not raise any issue
regarding the judge’s authority to make the fact finding, as distinguished from its
correctness. We conclude that the sentencing court did not commit clear error when it drew
the inference that possession of the crack was part of the defendant’s course of conduct of
cocaine distribution. The fact that the defendant, while driving his car with police in pursuit,
had just thrown a baggie of powdered cocaine out of the car, supports the inference that he
was trying to rid himself of drugs but was unable to reach the crack on the other side of the
car and throw it out.

        We grant the defendant’s request for resentencing under 18 U.S.C. § 3582(c)(2)
because the sentencing range of “his term of imprisonment . . . has subsequently been
lowered by the Sentencing Commission.” This same provision admonishes the court to
consider again “the factors set forth in section 3553.” We note that the sentencing court
instructed the Bureau of Prisons to attempt rehabilitation by treating and trying to cure the
defendant’s drug addiction. This § 3582(c)(2) is part of the same subsection that allows
courts to modify sentences for compelling reasons upon motion of the Bureau of Prisons.
It may be that the Bureau of Prisons will have further information concerning rehabilitation
worthy of consideration under § 3553.

        In a case similar to the instant case involving retroactive application of the crack
cocaine guidelines, the Supreme Court recently clarified “that district courts are entitled to
reject and vary categorically from the crack-cocaine Guidelines based on a policy
disagreement with those guidelines.” Spears v. United States, 555 U.S. ____ (2009). The
district court here did not recognize that authority, stating, “I do believe that policy
judgments of whether crack and powder are equivalent or not is not for me to make.” As we
have recognized, this misunderstanding provides additional grounds to remand the case for
No. 07-2250         United States v. Vandewege                                        Page 3


resentencing. See United States v. Johnson, No. 07-2447 (6th Cir. Jan. 26, 2009) (vacating
defendant’s sentence and remanding for resentencing in light of Spears). The Supreme
Court has made it clear that where a sentencing judge “varies from the Guidelines . . . in a
mine-run case” based on a policy disagreement or consideration of § 3553 standards, “closer
review may be in order.” Kimbrough v. United States, 128 S. Ct. 558, 575 (2007). After
sentencing, it then becomes the duty of the appellate judge to decide whether “the sentence
was reasonable,” as the Supreme Court tells us in Kimbrough at 576: “[t]he ultimate
question in Kimbrough’s case is ‘whether the sentence was reasonable — i.e., whether the
District Judge abused his discretion in determining that the § 3553(a) factor supported a
sentence of [15 years] and justified a substantial deviation from the Guidelines range.’”

        Accordingly, the District Court’s attribution to defendant of the 12.3 grams of crack
cocaine was not error, but the case is remanded to the District Court for resentencing under
18 U.S.C. § 3582(c)(2).
No. 07-2250         United States v. Vandewege                                         Page 4


                       ____________________________________

                        CONCURRING IN THE JUDGMENT
                       ____________________________________

        JULIA SMITH GIBBONS, Circuit Judge, concurring in the judgment. I join in the
court’s judgment that the district court did not commit clear error in attributing to
Vandewege the 12.3 grams of crack cocaine found under the passenger-side floormat of
Vandewege’s car for purposes of calculating his advisory Sentencing Guidelines range. See
U.S.S.G. § 1B1.3(a)(2) (requiring “all acts and omissions” that are “part of the same course
of conduct or common scheme or plan” to be included in the Guidelines calculation). I also
agree with the court that a remand for resentencing is appropriate in light of the Sentencing
Commission’s alteration of the crack-cocaine ratio, a point that the government concedes.
See 18 U.S.C. § 3582(c)(2) (allowing for resentencing where the Commission has
subsequently lowered the applicable Guideline range). However, I cannot agree with the
majority’s characterization – albeit in dicta – of the Supreme Court’s recent decision in
Kimbrough v. United States, 128 S. Ct. 558 (2007); and for that reason, I concur in the
judgment only.

        Spears v. United States, 129 S. Ct. 840 (2009) clarified the Supreme Court’s 2007
holding in Kimbrough, which examined what deference district courts must give to the
sentencing ratio established by the Sentencing Commission for crack and cocaine offenses.
Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a policy disagreement with those
Guidelines.” Spears, 128 S. Ct. at 843-44. Neither Kimbrough nor Spears authorized
district courts to categorically reject the policy judgments of the Sentencing Commission in
areas outside of crack-cocaine offenses, as the majority suggests. See Maj. Op. at 3
(asserting that “[t]he Supreme Court has made it clear” that district judges may depart from
the Guidelines based upon any policy disagreement and claiming that the Court has
established a higher standard of review for such departures). Kimbrough instead expressly
reserved the question as to whether a district court could categorically vary from the
Guideline range based solely upon a policy disagreement with the Commission in an area
other than the crack-cocaine disparity. Kimbrough, 128 S. Ct. at 575 (noting that the “crack
cocaine Guidelines . . . present no occasion for elaborative discussion” of the larger question
No. 07-2250          United States v. Vandewege                                         Page 5


of district courts’ ability to categorically disagree with the Commission’s policy decisions).
This was because the crack-cocaine Guidelines did “not exemplify the Commission’s
exercise of its characteristic institutional role” of gathering “empirical data and national
experience” and adjusting the Guideline range accordingly. Id. (internal quotation and
citation omitted); see also Spears, 129 S. Ct. at 842-43 (noting that Kimbrough’s holding
allowing for categorical departures based upon policy disagreements applied only as to
sentences for crack or cocaine offenses). The Supreme Court only hinted that if a district
court could categorically depart from the Guidelines range in an area where the Commission
has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be
required. Kimbrough, 128 S. Ct. at 575 (“[C]loser review may be in order when the
sentencing judge varies from the Guidelines based solely on the judge’s view that the
Guidelines range fails to properly reflect § 3553(a) considerations even in a mine-run case.”
(internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that
district courts may vary from the Guidelines based solely upon any policy disagreement.
Maj. Op. at 3.

        Applied to the present case, this debate over Kimbrough and Spears’s portent is
purely academic. Vandewege’s appeal presents us only with a defendant convicted of
distributing cocaine, an area where the district courts’ authority to categorically depart from
the Guidelines’ policy is clear. We therefore have no occasion or authority to issue any
holding bestowing upon district courts the carte blanche power to reject all policy decisions
made by the Sentencing Commission, the dicta of the majority notwithstanding. With these
observations, I concur in the judgment of the court.
