                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 December 22, 2009
                                   TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 09-1139
 v.                                             (D.C. No. 07-CR-00517-LTB-1)
                                                           (D. Colo.)
 JASON ALEXANDER BROADWAY,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and MURPHY, Circuit Judges.


      Defendant-Appellant Jason Alexander Broadway pled guilty to possession

with intent to distribute 50 grams or more of crack cocaine and being a felon in

possession of a firearm. Aplt. App. at 9-29. The district court sentenced Mr.

Broadway to 262 months’ imprisonment for the cocaine offense. Aplt. App. at

47, 68. On appeal, Mr. Broadway challenges the substantive reasonableness of

that sentence, arguing that the district court erred by refusing to depart from the

crack/powder cocaine disparity recommended by the United States Sentencing



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Guidelines. Aplt. Br. at 4-16. Our jurisdiction arises pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). We affirm.

      On October 9, 2007, Denver police executed a search warrant at Mr.

Broadway’s apartment. 1 R. at 13. The search found 487.82 grams of crack

cocaine and a .38 caliber revolver. 1 R. at 13. Mr. Broadway had prior felony

convictions. 1 R. at 13. On January 7, 2009, he pled guilty to Count 1,

possession with intent to distribute 50 grams or more of crack cocaine, and Count

2, being a felon in possession of a firearm. Aplt. App. at 9-29.

      The district court calculated Mr. Broadway’s advisory sentence pursuant to

the United States Sentencing Guidelines. Aplt. App. at 52, 68. He was a career

offender with a total of 14 criminal history points. 3 R. at 7-11. His total offense

level was 34. 3 R. at 5-7. This resulted in a range of 262 months to 327 months

on Count 1 and 120 months on Count 2. 3 R. at 16.

      Mr. Broadway did not dispute the guidelines calculation. 3 R. at A-1; 1 R.

at 31. Instead he invoked the court’s discretion under 18 U.S.C. § 3553(a) and

asked the court to sentence him as if he had possessed powder cocaine, Aplt. App.

at 30-38; 2 R. at 2-5, under which circumstance the guidelines would recommend

a range of 151 to 188 months on Count 1. Aplt. App. at 34-35.

      At the sentencing hearing on March 25, 2009, the court denied a variance

or departure:

            You know, it is correct, the Supreme Court says I can just

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      entirely disregard the one to one hundred ratio between powder and
      crack. And I am not saying there is not a case where I might be
      inclined to do that. For example, somebody who has a family, has
      had a good employment history, lawful employment, who is a mule
      who simply was transporting this crack cocaine and got nailed with a
      bunch of crack cocaine. That might stir some exercise of discretion
      in discounting this one to one hundred ratio. That is not your case,
      not looking at your criminal history.

Aplt. App. at 67. The court sentenced Mr. Broadway to 262 months on Count 1

and 120 months on Count 2, to be served concurrently, plus five years of

supervised release on Count One and three years on Count 2, to run concurrently.

Aplt. App. at 46-48, 68.

      Mr. Broadway contends on appeal that the cocaine disparity is

“substantively unreasonable . . . given the recent scientific realization that powder

cocaine and crack cocaine produce similar physiological and psychological

effects, and the complete change in our government’s policy concerning the

sentencing disparity between crack and powder cocaine.” Aplt. Br. at 1-2.

      We review “a district court’s decision to grant or deny a variance under a

deferential abuse of discretion standard.” United States v. Beltran, 571 F.3d

1013, 1018 (10th Cir. 2009). A sentence within a properly calculated guidelines

range enjoys a rebuttable presumption of reasonableness. Id.

      A district court may vary from the guidelines’ crack/powder sentencing

disparities. Spears v. United States, 129 S. Ct. 840, 842-44 (2009) (discussing

Kimbrough v. United States, 552 U.S. 85 (2007)). Where a district court


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acknowledges its discretion to depart, but concludes that a departure is

unwarranted under the defendant’s circumstances, nothing mandates that the court

“reduce a defendant’s sentence in order to eliminate the crack/powder sentencing

disparities.” United States v. Caldwell, 585 F.3d 1347, 1355 (10th Cir. 2009).

      Mr. Broadway makes much of the Department of Justice’s new position that

the crack and powder cocaine sentencing disparities are unfair and should be

changed. Aplt. Br. at 7-11. Under the separation of powers, such a change is the

responsibility of the executive and legislative branches, not the judiciary. The

district court was aware that it could depart or vary from the guidelines. Aplt.

App. at 67-68. It found no reason to do so and imposed a sentence considering

the factors set forth in 18 U.S.C. § 3553(a). Aplt. App. at 68. That decision was

not an abuse of discretion.

      AFFIRMED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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