                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2006

USA v. Gunter
Precedential or Non-Precedential: Precedential

Docket No. 05-2952




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 05-2952


    UNITED STATES OF AMERICA

                     v.

           JOHNNY GUNTER,

                          Appellant



Appeal from the United States District Court
  for the Eastern District of Pennsylvania
 (D.C. Criminal Action No. 04-cr-00295-1)
  District Judge: Honorable James T. Giles


           Argued June 1, 2006

      Before: AMBRO, FUENTES
    and GREENBERG, Circuit Judges

   (Opinion filed: September 11, 2006)
Maureen Kearney Rowley
  Chief Federal Defender
Robert Epstein
  Assistant Federal Defender
David L. McColgin (Argued)
  Assistant Federal Defender
  Supervising Appellate Attorney
Federal Court Division
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106-2414

      Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Francis C. Barbieri, Jr. (Argued)
  Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellee




                              2
                 OPINION OF THE COURT


AMBRO, Circuit Judge

       Johnny Gunter was convicted, inter alia, of possession
with intent to distribute cocaine base (“crack”) and sentenced to
a 295-month prison term. He argues on appeal that the District
Court erred in ruling that it could not, as a matter of law, impose
a sentence below that of the applicable federal Sentencing
Guidelines range for offenses involving crack cocaine. For the
reasons provided below, we vacate Gunter’s sentence, and
remand this case to the District Court for resentencing.

I.     Factual and Procedural Background

        On February 3, 2004, detectives found Gunter in a motel
in West Reading, Pennsylvania with 72.5 grams of crack and a
.25 caliber firearm loaded with six rounds of ammunition. As
a result, Gunter was indicted in the United States District Court
for the Eastern District of Pennsylvania for conspiracy to
distribute in excess of 50 grams of crack (in violation of 21
U.S.C. § 846), possession with intent to distribute in excess of
50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)),
possession of crack with the intent to distribute within 1,000
feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a
firearm during and in relation to a drug trafficking crime (in
violation of 18 U.S.C. § 924(c)), and possession of a firearm by
a convicted felon (in violation of 18 U.S.C. § 922(g)(1)).

                                3
Following a three-day jury trial, he was convicted on all
charges.

       The presentence report (“PSR”) calculated Gunter’s
advisory Guidelines range. The 72.5 grams of crack found in
Gunter’s possession generated a base offense level of 32. See
U.S.S.G. § 2D1.1(c)(4) (instructing that offenses involving 50
but less than 150 grams of crack have an offense level of 32).
An additional two levels were added because the motel where
the crack was recovered was within 1,000 feet of a school (West
Reading Elementary School). See id. § 2D1.2(a)(1). When
combined with a criminal history category of V, Gunter’s total
offense level of 34 yielded a sentencing range of 235-293
months. Gunter also was exposed to a consecutive 60-month
term because he used or carried a firearm in furtherance of a
drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(ii).
Accordingly, his aggregate Guidelines range was calculated as
295-353 months’ incarceration.

      Gunter asked the District Court to sentence him below
his Guidelines range on several grounds, including what he
claimed was the unjustifiable “disparity”1 created by the longer


  1
   For the rest of this opinion we shall not, as do most courts
and commentators, use “disparity” in describing the
crack/powder cocaine difference for sentencing purposes. This
avoids confusion with the sentencing factor in 18 U.S.C. §
3553(a)(6) that notes “the need to avoid unwarranted sentencing
disparities among defendants with similar records who have
been found guilty of similar conduct.”

                               4
sentences recommended for offenses involving crack cocaine
compared to those recommended for offenses involving powder
cocaine. He accurately explained that, had his offense conduct
involved powder—rather than crack—cocaine, his sentencing
range would have been 111-123, instead of 295-353, months’
imprisonment. Gunter grounded his contention that the Court
had discretion to sentence at less than the Guidelines range for
his crack offenses because of the Supreme Court’s ruling in
United States v. Booker, 543 U.S. 220 (2005). The District
Court rejected that argument, ruling that the 100:1 crack/powder
cocaine differential in the Guidelines was a determination left
to Congress, not to sentencing judges, and thus he was bound to
follow it in setting the sentence. Specifically, the Court
responded to Gunter’s request for a below-Guidelines sentence
due to the differential by noting as follows:

       [D]oesn’t a sentencing Court have to respect the
       congressional intent with respect to sentencing for
       crack versus powder cocaine, and to take a
       position that does not recognize what Congress
       clearly intended, wouldn’t that be a legislative act
       by a Court as opposed to a judicial act? I don’t
       think the provisions that Congress has put up
       there for a Court to decide to consider suggest
       that the Court can second guess Congress’ well
       spelled out intent with respect to sentencing. I
       don’t think I can call it sentencing – I don’t think
       I can say that there should not be a sentencing
       disparity.

App. at 55-56.

                                5
        As previously mentioned, the Court sentenced Gunter at
the low end of the Guidelines range calculated for his aggregate
offenses—295 months’ imprisonment. Gunter never argued
that the Court had incorrectly calculated his Guidelines range.
Rather, he asked it to sentence him below his correctly
calculated range because of the form of the drug involved in
these offenses. This leads us to believe that the Court viewed
the crack/powder cocaine differential in the Guidelines as
mandatory in imposing Gunter’s sentence. If so, is its
interpretation correct as a matter of law?2

II.       Discussion

          A.    Background:     Federal     Crack     Cocaine
                Sentencing

       As courts and commentators have explained on
numerous occasions, the sentencing contrast for crack and
powdered cocaine offenses debuted in the Anti-Drug Abuse Act
of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified at
21 U.S.C. § 841) (“Act”). The Act created two tiers of
mandatory sentencing ranges for drug offenses. Id. § 1002
(codified at 21 U.S.C. § 841(b)(1)). The lower tier spans
periods of imprisonment ranging generally from a mandatory
minimum of five years to a maximum of forty years; the higher
tier spans periods of imprisonment ranging generally from a


      2
    The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

                               6
mandatory minimum of ten years to a maximum of life. Id.
These minimum prison terms are triggered exclusively by the
quantity and type of drug involved in the offense. Though it is
undisputed that crack and powder cocaine are
pharmacologically indistinguishable,3 Congress set dramatically
different penalty structures for each, requiring one hundred
times more powdered cocaine than crack cocaine to trigger
inclusion in a particular range. Id. For example, a crack
cocaine distribution conviction involving 5 grams yields a 5-
year mandatory minimum sentence, while a distribution
conviction involving 500 grams of cocaine powder is required




  3
   As summarized in a recent sentencing opinion,
       [t]he chemical compound C17H21NO4 occurs
       naturally in the coca leaf. This compound is
       usually processed for importation into the United
       States by dissolving the cocaine base in
       hydrochloric acid and water to create a salt:
       cocaine hydrochloride, C17H22C1NO4 (powder
       cocaine). Powder cocaine may then be converted
       back to its base form by cooking it with baking
       soda and water. See U.S. v. Sloan, 97 F.3d 1378,
       1381-82 (11th Cir. 1996). In numerous trials . . . ,
       the Government’s forensic chemists have testified
       that powder and crack cocaine are the same
       chemical substance, just in a different form.
United States v. Hamilton, 428 F. Supp. 2d 1253, 1257 (M.D.
Fla. 2006).

                              7
to trigger the same 5-year sentence. Id.4

        The sentencing difference between crack and powder
cocaine was based on Congress’s determination that crimes
involving crack pose a more serious societal danger than crimes
involving powder cocaine. See U.S. Sentencing Comm’n,
Special Report to Congress: Cocaine and Federal Sentencing
Policy 117-18 (1995), http://www.ussc.gov/crack/exec.htm
(“1995 Report”). Specifically, “legislators believed that crack
is more addictive than powder cocaine, that it causes crime
(psychopharmacological, economic-compulsive and systemic),
that it has perilous physiological effects such as psychosis and
death, that young people are particularly prone to becoming
addicted to it (‘students will be faced with the temptations of
crack and other drugs during their school years’) and that
crack’s low cost per dose and ease of manufacture would lead
to even more widespread use of it.” William Spade, Jr., Beyond
the 100:1 Ratio: Towards a Rational Cocaine Sentencing
Policy, 38 Ariz. L. Rev. 1233, 1252 (Winter 1996) (internal
citations omitted); see also United States v. Pho, 433 F.3d 53,


   4
     We note that while the 100:1 ratio refers to the relative
quantities of each drug required to trigger the different
sentencing ranges under the Guidelines, the actual difference is
in fact much smaller. See U.S. Dep’t of Justice, Federal Cocaine
Offenses: An Analysis of Crack and Powder Penalties 19
(2005), explaining that the average sentence for crack offenses
is 1.6 times longer than the average sentence for similar powder
offenses. In Gunter’s case, the difference was greater than 2.5.


                               8
55 (1st Cir. 2006) (citing 1995 Report at 118) (explaining that
“Congress found that crack cocaine was more likely to (i)
induce addiction; (ii) correlate with the incidence of other
serious crimes; (iii) implicate especially vulnerable members of
society; (iv) cause deleterious physiological effects; and (v)
attract youthful users”).

       Shortly after passage of the Anti-Drug Abuse Act, the
United States Sentencing Commission incorporated the
statutorily established difference in punishment between crack
and powder cocaine offenses into the federal Sentencing
Guidelines. See U.S.S.G. § 2D1.1(c); Spade, supra, at 1249.
As the First Circuit Court of Appeals explained,

       [t]he Commission built the base offense levels for
       crimes involving crack and powdered cocaine
       around the threshold quantities set by Congress.
       This architectural decision comported with
       Congress’s discernible intent. See 28 U.S.C.
       § 994(i)(5) (requiring the Commission to “specify
       a sentence to a substantial term of imprisonment”
       for offenders convicted of “trafficking in a
       substantial quantity of a controlled substance”).
       Consistent with its congressionally imposed
       obligation to “reduc[e] unwarranted sentence
       disparities,” id. § 994(f), the Commission also
       fixed the guideline sentences for offenses
       involving non-threshold quantities of crack and
       powdered cocaine in accordance with the 100:1
       ratio. See generally USSG § 2D1.1, cmt.
       (backg’d.) (concluding that “a logical sentencing

                               9
       structure for drug offenses” requires coordination
       with mandatory minimum sentences). Thus,
       while Congress designed the 100:1 ratio to
       operate at the minimum and maximum poles of
       the mandatory statutory sentencing ranges, it was
       the Commission that incorporated the ratio root
       and branch into its calculation of every cocaine
       offender’s guideline sentencing range . . . .

Pho, 433 F.3d at 55 (emphasis added).

        The Sentencing Commission revisited the 100:1 ratio for
the first time on a directive from Congress to study federal
sentencing policy as it relates to possession and distribution of
all forms of cocaine, see Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 280006, 108
Stat. 1796, 2097 (1994). In its 1995 Report, the Commission
candidly conceded that “a review of the relatively sparse
empirical evidence available concerning those factors Congress
considered in distinguishing crack from powder cocaine leads
to mixed conclusions and few clear answers.” See 1995 Report
at 195. “[E]ven while agreeing that crack may be more harmful
than powder cocaine, the Commission [was] not prepared . . . to
say definitely how that additional harm should be accounted for
within the current penalty scheme.” Id. “Nevertheless, [it]
firmly conclude[d] that it [could] not recommend a ratio
differential as great as the current 100-to-1 quantity ratio.” Id.
at 196; see also id. at 198 (stating “[t]he Commission strongly




                               10
recommends against a 100-to-1 quantity ratio”).5 The
Commission informed Congress that the crack/powder cocaine
differential needed to “be re-examined and revised,” id. at 197,
and that it intended to provide a more comprehensive review
after further investigation. Id. at 198-200.

        Shortly after issuance of the 1995 Report, the
Commission recommended that Congress approve amendments
to the Sentencing Guidelines abrogating any differential
between the penalties mandated for crack and powder cocaine
offenses. Notice of Submission to Congress of Amendments to
the Sentencing Guidelines, 60 Fed. Reg. 25,074, 25,077 (May
10, 1995) (stating that “the Commission has concluded that . .
. the different offense levels based solely on the form of cocaine
are not required”); see id. at 25,075-25,076. The proposed
amendments equalized sentences for offenses involving similar
amounts of crack cocaine and powder cocaine at the level
provided for powder cocaine.

      Congress held hearings concerning the suggested
amendments but ultimately rejected the Commission’s
recommendations. See Pub. L. No. 104-38, 109 Stat. 334, 334
(1995). Its refusal to adopt the amendments was premised
primarily on its determination that “the evidence


   5
    The Commission was particularly concerned that the ratio
punished low-level crack offenders more harshly than whole-
sale powder distributors. 1995 Report at 192. It also cited the
disproportionate effect of the differential on African-American
defendants. Id.

                               11
overwhelmingly demonstrates significant distinctions between
crack and powder cocaine.” H. R. Rep. No. 104-272, at 3
(1995), reprinted in 1995 U.S.C.C.A.N 335, 337.

       Two years after the proposed changes were rejected and
after “deliberat[ing] carefully over federal cocaine sentencing
policy,” “assess[ing] the concerns raised by Congress,”
“conduct[ing]” new research,” consult[ing] with law
enforcement and substance abuse experts,” and “review[ing] all
of the Commission’s prior research and analysis,” the
Commission issued another report concerning the crack/powder
cocaine sentencing differential. See U.S. Sentencing Comm’n,
Special Report to Congress: Cocaine and Federal Sentencing
P o l i c y                   ( 1 9 9 7 )                  1 ,
http://www.ussc.gov/r_congress/NEWCRACK.PDF (“1997
Report”).     In that report, the Commission unanimously
advocated that Congress replace the 100:1 ratio with a 5:1 ratio
“by changing the quantity levels that trigger mandatory
minimum penalties for both powder and crack cocaine.” Id. at
2 (“[F]or powder cocaine, the Commission recommends that
Congress reduce the current 500-gram trigger for the five-year
mandatory minimum sentence to a level between 125 and 375
grams, and for crack cocaine, that Congress increase the current
five-gram trigger to between 25 and 75 grams.”). The
Commission’s recommendations received little support in
Congress, which ultimately took no action.

      Undaunted, the Commission issued a third report
addressing the 100:1 differential in 2002. See U.S. Sentencing
Comm’n, Report to Congress: Cocaine and Federal Sentencing
P o l i c y                        ( 2 0 0 2 ) ,

                              12
http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf
(“2002 Report”). It reiterated that reform was necessary and
explicitly criticized the status quo: “[T]he Commission firmly
and unanimously believes that the current federal cocaine
sentencing policy is unjustified and fails to meet the sentencing
objectives set forth by Congress in both the Sentencing Reform
Act [of 1984] and the [Anti-Drug Abuse] Act.” Id. at 91. It
further explained that “while there are reasons to punish crack
cocaine offenses more seriously than powder cocaine offenses
involving equivalent quantities,” “a 100-to-1 drug quantity ratio
is excessive to account for the differences in harms between the
two drugs.” Id. at 92-93. According to the report, the
underlying rationale that prompted the ratio (including the
premise that crack cocaine was more addictive, would lead to a
lost generation of “crack babies,” and was highly correlated
with violent crimes) had been shown over time to be
overstated.6 Thus, the Commission endorsed a reduction of the
crack/powder cocaine sentencing differential from a ratio of
100:1 to one of 20:1. Id. at 107. Congress again deliberated on
the Commission’s recommendations and again refused to
modify or reform the 100:1 differential.

         In sum, after three separate reports and proposed
amendments to the 100:1 ratio, Congress has kept in force the
initial sentencing difference between crack and powder cocaine.



  6
   The Commission again emphasized that the severe penalties
for crack offenses primarily affected low-level and African-
American offenders. See 2002 Report at vi-viii.

                               13
       B.     Legal Landscape Post-Booker: The Third
              Circuit

        As mentioned above, Gunter relies on Booker for his
argument that the District Court had discretion to consider and
impose a sentence below the range set in the Guidelines for
crack offenses. That decision is described in various opinions
of our Court, see, e.g., United States v. Cooper, 437 F.3d 324
(3d Cir. 2006), and we will not go over the same ground in
detail here. Simply stated, the Supreme Court delivered two
different opinions in Booker, both by five-to-four votes, with
the dissenters to each opinion switching sides (Justice Ginsburg
providing the tie-breaking vote in each opinion). In the first, or
“constitutional,” opinion, the Court reaffirmed its state-law
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the [statutory] maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at 244. If not,
the defendant’s Sixth Amendment right to trial by jury is
violated. When district judges are permitted by the Sentencing
Guidelines, the application of which was mandatory under 18
U.S.C. § 3553(b)(1),7 to cross into this forbidden area of judicial

  7
    18 U.S.C. § 3553(b)(1) instructed a sentencing court that it
“shall impose a [Guidelines] sentence . . . unless [it] finds that
there exists an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described.”

                                14
fact-finding at sentencing, they are unconstitutional. In the
second, or “remedial,” opinion, the Court remedied this
constitutional violation by excising § 3553(b)(1) from the
Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.
1837, 1987 (1984),8 thereby rendering the Guidelines
“effectively advisory.” Id. at 245. Combining these holdings
in practice means that district courts may fact-find to increase
sentences beyond the Guidelines range provided they are within
the statutory minimum and maximum dictated by the United
States Code, take into account the relevant sentencing factors set
out in 18 U.S.C. § 3553(a),9 and ultimately are “reasonable.”


(Emphasis added.)
     8
    The Sentencing Reform Act created the Sentencing
Commission to develop guidelines for federal sentencing.
     9
      Section 3553(a) begins with the broad mandate that
sentencing courts “shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection.” It goes on to state that
sentencing courts must take into account a number of factors
when sentencing a defendant, including in pertinent part:
       (1) the nature and circumstances of the offense
       and the history and characteristics of the
       defendant;
       (2) the need for the sentence imposed—
               (A) to reflect the seriousness of the
               offense, to promote respect for the law,
               and to provide just punishment for the
               offense;

                               15
Id. at 245-61.

       Prior to the decision in Booker, our Court routinely
upheld the 100:1 differential against constitutional attack,
including equal protection claims. See, e.g., United States v.



              (B) to afford adequate deterrence to
              criminal conduct;
              (C) to protect the public from further
              crimes of the defendant; and
              (D) to provide the defendant with needed
              educational or vocational training, medical
              care, or other correctional treatment in the
              most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range
      established for—
              (A) the applicable category of offense
              committed by the applicable category of
              defendant as set forth in the guidelines—
                     (i) issued by the Sentencing
                     Commission . . . ;
      (5) any pertinent policy statement—
              (A) issued by the Sentencing Commission . . . ;
      (6) the need to avoid unwarranted sentence disparities
      among defendants with similar records who have been
      found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the
      offense.
18 U.S.C. § 3553(a).

                              16
Frazier, 981 F.2d 92, 95-96 (3d Cir. 1992) (per curiam)
(holding that distinctions between crack and cocaine powder for
sentencing purposes are not an equal protection violation and
that the 100:1 ratio is not cruel and unusual punishment); United
States v. Jones, 979 F.2d 317, 320 (3d Cir. 1992) (holding
Guidelines provisions imposing higher offense levels for
offenses involving crack cocaine not to be unconstitutionally
vague), superseded by statute as stated in United States v.
Roberson, 194 F.3d 408, 417 (3d Cir. 1999).

       Since Booker made the Guidelines advisory, we have had
only one occasion to revisit the crack/powder cocaine
differential, and that was not a precedential opinion: United
States v. Scott, No. 05-1604, 2006 WL 1113513, at *4 (3d Cir.
Apr. 27, 2006) (holding that, given our pre-Booker case law, “it
would be inconsistent to require the District Court to give a
nonguidelines sentence based on the [crack/powder cocaine]
disparity”(emphasis in text; internal quotation marks and
brackets omitted)).

         Neither our pre- nor post-Booker case law gives the
answer here. The pre-Booker decisions are distinguishable
because they were decided under a mandatory (and now
unconstitutional) sentencing regime, whereas Scott provides
little guidance because it is not precedential and, even if it were,
it did not reach the question now before us: whether it is legal
error for a sentencing court to believe that it must follow the
crack/powder differential in the Guidelines when imposing a
sentence under the now-advisory Guidelines regime.

       C.      Legal Landscape Post-Booker: Our Sister

                                17
              Circuit Courts

       Several of our sister circuit courts have addressed the
crack/powder cocaine sentencing differential post-Booker. The
Government depicts the rulings of those courts as follows:

       While a handful of district courts, following
       Booker, have taken it upon themselves to lower
       guideline ranges for crack offenses based on a
       perceived unfairness in comparison with
       sentencing for powder cocaine crimes, this is
       plainly beyond judicial authority, and the
       appellate courts to address the matter have
       unanimously rejected this result. See United
       States v. Cawthorn, [429 F.3d 793, 802-02] (8th
       Cir. [] 2005); United States v. Gipson, 425 F.3d
       335, 337 (7th Cir. 2005); United States v.
       Daniels, 147 Fed. Appx. 869, 870 n.1 (11th Cir.
       Sept. 2, 2005).

Gov’t Br. at 15-16.

       This contention is inaccurate for two reasons. First, it is
well-documented that, as of the date of the Government’s brief,
in excess of two dozen district courts (hardly a “handful”) have
used their Booker discretion to refuse to apply the 100:1
crack/powder cocaine discrepancy. See Judge Michael W.
McConnell, The Booker Mess, 83 Denv. U. L. Rev. 665, 683
(2006); see also Ryan S. King & Marc Mauer, Sentencing with
Discretion: Crack Cocaine Sentencing After Booker 4-6, 11-19
( J a n u a r y                           2 0 0 6 ) ,

                               18
http://www.sentencingproject.org/pdfs/crackcocaine-afterboo
ker.pdf (citing and analyzing cases).

       Second, and more importantly, the Government’s
assertion is simply wrong that “the appellate courts [that have]
address[ed] the matter” before us “have unanimously rejected”
a court’s decision to sentence below the Guidelines ranges in
crack cocaine cases. See United States v. Williams, 435 F.3d
1350, 1354-55 (11th Cir. 2006) (per curiam) (affirming as
reasonable a below-Guidelines sentence of 90 months’
imprisonment in a crack case where the value of the crack
involved was only $350 and the advisory Guidelines range was
188-235 months’ imprisonment).

        Moreover, the cases on which the Government relies to
advance its argument simply are not on point. For example, it
cites United States v. Daniels, No. 05-10432, 2005 WL
2114158 (11th Cir. Sept. 2, 2005) (per curiam). There, the
District Court sentenced the defendant not below, but within, his
advisory Guidelines range. Id. at *1. The Eleventh Circuit
affirmed that sentence as reasonable, noting in approval that, in
reaching its sentencing determination, the District Court
“considered the nature and circumstances of Daniels’s
“cooperation with the government, the nature of the offense, the
drug involved, and ‘all of the circumstances particular to him.’”
Id. (emphasis added). Thus, consideration of the drug involved
(i.e., crack cocaine, powder cocaine, heroin, et al.) as a
sentencing factor is proper and encouraged in the post-Booker
regime. The Government ignores this statement and instead
directs the Court’s attention to footnote one of the opinion,
which states that

                               19
       Daniels also argues that his sentence was
       unreasonable based upon the Sentencing
       Guidelines’ disparate treatment of powder and
       crack cocaine offenses. This argument is
       foreclosed by our precedent, and therefore . . . is
       without merit.

Id. at *1 n.1. This comment does nothing more than restate the
obvious, that is, within-Guidelines crack cocaine sentences are
not per se unreasonable simply due to the crack/powder cocaine
differential. The panel said as much in Scott. 2006 WL
1113513, at *4. Furthermore, the Eleventh Circuit has affirmed
a below-Guidelines crack sentence in a precedential opinion
decided subsequent to Daniels. See Williams, 435 F.3d at 1354-
55. Daniels thus cannot mean what the Government reads it to
say: that district courts may never take the Guidelines’
crack/powder cocaine differential into consideration and
ultimately impose a non-Guidelines sentence.

        The Government also relies on United States v. Gipson,
425 F.3d 335, 337 (7th Cir. 2005) (per curiam). There, the
defendant’s “sole argument on appeal was that the penalties
under the [G]uidelines for crack cocaine as contrasted with
powder are ‘grossly disproportionate,’ and therefore his
sentence is unreasonable within the meaning of . . . Booker
. . . .” Id. at 337. The Seventh Circuit affirmed Gipson’s
sentence, noting (as the panel did in Scott) that the question in
the case “is not whether after Booker a sentencing court may use
the differential as a reason to impose a shorter sentence than the
one recommended by the [G]uidelines, but rather whether it is
error for a court not to have taken the differential into account.”

                                20
Id. What this means is that a sentencing court is required to
calculate the crack/powder cocaine difference in determining
Guidelines ranges, but is no longer required to consider the
Guidelines anything more than advisory in meting out the
sentence.

       Finally, the Government points to United States v.
Cawthorn, 429 F.3d 793 (8th Cir. 2005), a case in which the
Eighth Circuit rejected the defendant’s argument that “it was
error for the [sentencing] court not to sentence outside the
Guidelines range because it is always unreasonable to treat
crack cocaine 100 times worse than powder cocaine.” Id. at
802. Cawthorn expressly adopted the reasoning of the Seventh
Circuit, stating that, given its prior case law, “it would be
inconsistent to require the district court to give a nonguideline
sentence based on this differential.” Id. at 803. In reaching that
conclusion, the Eighth Circuit stressed that the sentencing court
had treated the crack/powder cocaine differential as advisory in
sentencing Cawthorn:

       The district court merely saw the congressional
       choice [declaring that crack be treated 100 times
       more severe than powder cocaine] as a factor in
       the sentence; therefore Cawthorn’s argument that
       the district court treated the crack-powder
       disparity as mandatory is without merit.

Id. (emphasis added). Unlike in Cawthorn, the District Court
here believed that it had no discretion to impose a below-
Guidelines sentence on the basis of the crack/powder cocaine
differential and, thus, treated the Guidelines range difference as

                               21
mandatory in deciding the ultimate sentence.

       There are additional federal appellate decisions, not
relied on by the Government, that are relevant to our analysis.
Two are United States v. Pho, 433 F.3d 53 (1st Cir. 2006), and
United States v. Eura, 440 F.3d 625 (4th Cir. 2006). The
questions presented in Pho and Eura were identical:

       May a federal district court, consistent with the
       teachings of [Booker], impose a sentence outside
       the advisory [G]uidelines sentencing range based
       solely on its categorical rejection of the
       [G]uidelines’ disparate treatment of offenses
       involving crack cocaine, on the one hand, and
       powdered cocaine, on the other hand?

Pho, 433 F.3d at 54 (emphasis added).

        The sentencing court in Pho categorically rejected the
100:1 ratio, opting instead for a 20:1 ratio because it “made
more sense.” Id. at 58. The sentencing court in Eura appears
to have done the same. See 440 F.3d at 630-32 & n.6. The First
and Fourth Circuits, respectively, reversed, holding that “a
‘district court’s categorical rejection of the 100:1 ratio
impermissibly usurps Congress’s judgment about the proper
sentencing policy for cocaine offenses.’” Eura, 440 F.3d at 634
(quoting Pho, 433 F.3d at 63). Both Courts were careful,
however, to restrict their ruling to “categorical rejections of the
100:1 ratio” so as not to run afoul of Booker. The First Circuit
in Pho stated that “we do not intend to diminish the discretion
that, after Booker, district courts enjoy in sentencing matters or

                                22
to suggest that, in a drug-trafficking case, the nature of the
contraband and/or the severity of a projected guideline sentence
may not be taken into account on a case-by-case basis.” 433
F.3d at 65. Picking up on that theme, the Fourth Circuit went
on to say:

       Of course, it does not follow that all defendants
       convicted of crack cocaine offenses must receive
       a sentence within the advisory sentencing range.
       We certainly envision instances in which some of
       the § 3553(a) factors will warrant a variance from
       the advisory sentencing range in a crack cocaine
       case.

440 F.3d at 634 (emphasis in original); see also United States v.
Castillo, __F.3d__, No. 05-3454-CR, 2006 WL 2374281, at
*14-17, 21 (2d Cir. Aug. 16, 2006) (rejecting the district court’s
substitution of a 20:1 ratio for the 100:1 ratio, but emphasizing
that it was not holding “that district courts must always sentence
within the ratio provided by the Guidelines; that would indeed
be error under Booker”); United States v. Jointer, __ F.3d__,
No. 05-4623, 2006 WL 2266308, at *3-4 (7th Cir. Aug. 9,
2006) (similar).

        To recap, federal courts of appeal have unanimously held
that (1) Booker does not require sentencing courts to impose
below-Guidelines sentences in every crack case due to the
crack/powder differential, and (2) sentencing courts may not
craft their own ratio as a substitute for the 100:1 ratio chosen by
Congress. Contrary to the Government’s contentions, no circuit
court has held that a sentencing court errs in simply considering

                                23
the particular form of a drug involved in the offense as one of
many individual factors in imposing a sentence. In this context,
we decide a limited issue of first impression for our Court:
whether the District Court erred as a matter of law in believing
it could not sentence below the applicable Guidelines range for
offenses involving crack cocaine.

      To resolve this issue, we examine Booker and our case
law explaining the sentencing process courts are to follow post-
Booker.

       D.     Merits

        As others have observed, the separate opinions in Booker
establish that there are two types of Booker error. First, a
district court could err by relying upon judge-found facts, other
than prior convictions, to enhance a defendant’s sentence
beyond the statutory maximum for the crime the defendant was
convicted. Booker, 543 U.S. at 244. The Sixth Amendment
prohibits this practice, id., sometimes referred to as
“constitutional” Booker error. See, e.g., United States v.
Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc);
McConnell, supra, at 669. Second, a sentencing court could err
by applying the Guidelines mandatorily (even though the
resulting sentence was calculated solely upon facts that were
admitted by the defendant, found by the jury, or based upon a
prior conviction), as Booker makes them no more than advisory.
This is sometimes referred to as “non-constitutional” Booker
error. See Gonzalez-Huerta, 403 F.3d at 731-32; McConnell,
supra, at 669.


                               24
        In this context, our post-Booker precedent instructs
district courts to follow a three-step sentencing process. See
United States v. King, 454 F.3d 187 (3d Cir. 2006).

      (1) Courts must continue to calculate a defendant’s
Guidelines sentence precisely as they would have before
Booker. See id. at 196; see also Cooper, 437 F.3d at 330.

       (2) In doing so, they must “formally rul[e] on the
motions of both parties and stat[e] on the record whether they
are granting a departure and how that departure affects the
Guidelines calculation, and tak[e] into account [our] Circuit’s
pre-Booker case law, which continues to have advisory force.”
King, 454 F.3d at 196.

        (3) Finally, they are required to “exercise[] [their]
discretion by considering the relevant [§ 3553(a)] factors,” id.
at 194 (quoting Cooper, 437 F.3d at 329), in setting the sentence
they impose regardless whether it varies from the sentence
calculated under the Guidelines.10

       While the District Court complied with steps one and two
of our Circuit’s post-Booker sentencing procedure, it eschewed


    10
      As an aside, our Court has previously stated that we
distinguish between traditional departures based on a specific
Guidelines provision and sentencing “variances” from the
Guidelines that are based on Booker and the § 3553(a) factors.
United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir.
2006).

                               25
(because it believed it must in this case) following through fully
with exercising its discretion at step three, notwithstanding
Gunter’s express request that it do so. In effect, the Court
treated the crack cocaine Sentencing Guidelines as mandatory
and not advisory. This implicates the second type of Booker
error.

        The Government urges us to affirm nonetheless, arguing
that “reducing the guidelines for crack cocaine would not simply
stand as an inappropriate downward departure but would
amount to judicial rewriting of binding law.” Gov’t Br. at 15.
If the District Court had simply refused in its discretion to
impose a sentence below Gunter’s statutory mandatory
minimum as prescribed by Congress, we would, of course,
agree. That, however, is not what happened here, as Gunter’s
recommended sentence for his offenses involving crack cocaine
was well above the mandatory minimum of ten years required
by 21 U.S.C. § 841(b). The District Court did not reject in its
discretion imposing a sentence less than the mandatory
minimum sentence required by statute; instead, in our view it
stated that the 100:1 crack/powder cocaine differential in the
Sentencing Guidelines takes away its discretion to sentence at
anything less than the minimum range calculated under the
Guidelines.

       To repeat our earlier quote from Pho, “while Congress
designed the 100:1 ratio to operate at the minimum and
maximum poles of the mandatory statutory sentencing ranges,
it was the Commission that incorporated the ratio root and
branch into its calculation of every cocaine offender’s guideline
sentencing range . . . .” 433 F.3d at 55. The Government fails

                               26
to appreciate that while the statutory minimum drug trafficking
penalty in 21 U.S.C. § 841(b), which reflects the 100:1
crack/powder cocaine ratio (i.e., “binding law”), is mandatory,
the-above-the-statutory-minimum Guidelines ranges for drug
trafficking penalties, which reflect the same ratio, are not after
Booker. 543 U.S. at 245 (excising the mandatory language of
18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act in
order to make the Guidelines constitutional under the Sixth
Amendment); see McConnell, supra, at 679 (explaining that,
post-Booker, “[i]f the statutory penalty applicable to the crime
of distributing five kilograms or more of cocaine is ten years to
life . . . [,] the district judge . . . could set the sentence anywhere
between ten years and life, based on the judge’s perception of
such factors as the severity of the crime, the defendant’s
prospects for rehabilitation, the effects on the victims, the
defendant’s ties to the community or family responsibilities, or
whatever other factors he deems relevant”). In other words,
once between the minimum and maximum statutory ranges of
21 U.S.C. § 841(b), there is nothing special about the crack
cocaine Sentencing Guidelines that makes them different, or
less advisory, than any other Guidelines provision.11 Thus, the


   11
     Because the District Court stated that it had “taken into
consideration all of the factors that the Court should take into
consideration under statute for sentencing purposes,” app. at 68,
the Government argues that “[i]t is abundantly clear from the
record that the district court’s decision to impose a sentence
within the guidelines range was based upon its belief that such
a sentence was the appropriate punishment for the defendant and
not because it felt it did not have the authority to impose a lesser

                                  27
District Court erred under Booker in treating the crack/powder
cocaine sentencing differential incorporated in the Guidelines
as mandatory in imposing a final sentence.

III.   Conclusion

       Post-Booker a sentencing court errs when it believes that
it has no discretion to consider the crack/powder cocaine
differential incorporated in the Guidelines—but not demanded
by 21 U.S.C. § 841(b)—as simply advisory at step three of the
post-Booker sentencing process (imposing the actual sentence
after considering the relevant § 3553(a) factors). That error
occurred here, we believe. Therefore, we vacate Gunter’s
sentence and remand this case for re-sentencing.

      Of course, the District Court is under no obligation to
impose a sentence below the applicable Guidelines range solely
on the basis of the crack/powder cocaine differential.
Furthermore, although the issue is not before us, we do not
suggest (or even hint) that the Court categorically reject the



sentence.” Gov’t Br. at 24-25. Stated differently, because the
District Court indicated that it had considered the § 3553(a)
factors, it followed the sentencing procedure demanded by our
Court.
        We disagree. The District Court’s explicit statement that
it was bound by the crack cocaine Guidelines (interpreted by us
as meaning the actual sentence meted out and not simply the
Guidelines calculation) refutes the contention that it treated
them as advisory.

                               28
100:1 ratio and substitute its own, as this is verboten. The
limited holding here is that district courts may consider the
crack/powder cocaine differential in the Guidelines as a factor,
but not a mandate, in the post-Booker sentencing process.




                              29
