Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2007

USA v. Ricks
Precedential or Non-Precedential: Precedential

Docket No. 05-4832




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                                              PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT



                    Nos. 05-4832, 05-4833


              UNITED STATES OF AMERICA,

                                               Appellant,

                               v.

            MICHAEL RICKS and MARC RICKS,

                                               Appellees.



        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
         (D.C. Nos. 00-CR-00024-2, 00-CR-00024-4)
        District Judge: Honorable Ronald L. Buckwalter


                   Argued January 23, 2007

 Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,
                      Circuit Judges.

                    (Filed: July 20, 2007 )

                            _______

David E. Troyer
Ara B. Gershengorn (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for the United States of America

David L. McColgin (ARGUED)
Defender Association of Philadelphia
Federal Court Division
The Curtis Center, Suite 540 West
601 Walnut Street
Philadelphia, PA 19106
Attorney for Marc Ricks

Gavin P. Holihan
546 W. Hamilton Street, Suite 200
Allentown, PA 18101
Attorney for Michael Ricks

Mark Osler
Baylor Law School
1114 South University Parks Drive
Waco, Texas 76798
Attorney for Amici Curiae American Civil Liberties Union
Foundation Drug Law Reform Project, American Civil
Liberties Union of Pennsylvania, Douglas A. Berman,
Michael M. O’Hear, David N. Yellen, and David M. Zlotnick



                  OPINION OF THE COURT



FUENTES, Circuit Judge.

       Marc Ricks pleaded guilty to a drug conspiracy charge and
was sentenced to 135 months in prison. His brother, Michael
Ricks, was sentenced to 168 months in prison after pleading guilty
to drug conspiracy, conspiracy to commit murder-for-hire, and
conspiracy to affect interstate commerce by robbery. The
government appeals these sentences, arguing that they are
unreasonable because the District Court improperly used a 20-to-1
crack/powder cocaine drug quantity ratio instead of the 100-to-1
ratio provided for in the Sentencing Guidelines. Because we

                                2
conclude that courts may not categorically reject the 100-to-1 ratio,
we will vacate both sentences and remand to the District Court for
resentencing.1

                                 I.

       Brothers Michael and Marc Ricks pleaded guilty to their
crimes in January 2001 without plea agreements. They each
reserved the issue of the quantity of drugs that should be attributed
to them. After an evidentiary hearing, the District Court concluded
that each brother was responsible for distributing at least 2000
grams of cocaine base (“crack”), 3000 grams of powder cocaine,
and 30 grams of heroin.

       Thereafter, the District Court held sentencing hearings for
both brothers. The Court determined that Michael’s imprisonment
range under the Guidelines was 324 to 405 months, and then
sentenced him, at the bottom of that range, to 324 months in prison.
Subsequently, the Court determined that Marc’s imprisonment
range was 188 to 235 months, and sentenced him to 200 months in
prison. Following appeals by both brothers, this Court affirmed
their convictions and sentences. United States v. Michael Ricks,
96 Fed. Appx. 93 (3d Cir. 2004); United States v. Marc Ricks, 96
Fed. Appx. 96 (3d Cir. 2004). While their petitions for certiorari
were pending, the Supreme Court rendered the Guidelines advisory
in United States v. Booker, 

(2005). Accordingly, we
remanded both cases to the District Court for resentencing.

       On remand, the District Court resentenced Michael Ricks
applying a crack/powder cocaine drug quantity ratio of 20-to-1
instead of the Guidelines ratio of 100-to-1. Michael’s revised
range was 151 to 188 months in prison and the Court sentenced
him to 168 months. Two days later, the Court resentenced Marc
applying the same 20-to-1 ratio. Marc’s new range was 121 to 151
months and the District Court sentenced him to 135 months in
prison. Thus, compared to their initial sentences, Michael’s time


       1
       We have jurisdiction to consider the government’s appeal
under 18 U.S.C. § 3742(b).


                                 3
in prison was reduced by thirteen years and Marc’s by about five
and a half years. Viewed another way, Michael and Marc received
sentences that were 156 months and 53 months below the bottom
of their original Guidelines ranges.

                                II.

       In determining whether the District Court properly
sentenced Michael and Marc Ricks on remand, we first briefly
review the relevant history of the 100-to-1 ratio as well as our
recent sentencing jurisprudence.

                                A.

       Amidst growing public concern over the societal impact of
cocaine, Congress passed the Anti-Drug Abuse Act of 1986. Pub.
L. No. 99-570, 100 Stat. 3207 (1986). Although crack and powder
cocaine are pharmacologically the same, the Act requires 100 times
more powder cocaine than crack to trigger certain mandatory
minimum prison terms. In particular, the Act mandates at least five
years in prison for distribution of 500 grams of powder cocaine, but
imposes the same penalty for distribution of just 5 grams of crack.
21 U.S.C. § 841(b)(1)(B). Similarly, distribution of 5000 grams of
powder cocaine, but just 50 grams of crack, triggers the Act’s ten-
year mandatory minimum.2 21 U.S.C. § 841(b)(1)(A).

        The 1986 Act was passed in expedited fashion and, as a
result, its legislative history is limited. Indeed, “there were no
committee hearings and no Senate or House Reports accompanying


       2
        Congress also distinguished crack from powder cocaine
when it passed the Anti-Drug Abuse Act of 1988. Pub. L. No.
100-690, 102 Stat. 4181 (1988). Under the 1988 Act, simple
possession of more than five grams of crack cocaine results in a
minimum sentence of five years in prison for a first-time offender.
21 U.S.C. § 844. Simple possession of any quantity of powder
cocaine by a first-time offender, however, is a misdemeanor
punishable by no more than one year in prison. Id.; see also U.S.
Sentencing Comm’n Special Report to the Congress: Cocaine and
Federal Sentencing Policy 3 (1997).

                                 4
the bill that ultimately passed.” U.S. Sentencing Comm’n Report
to the Congress: Cocaine and Federal Sentencing Policy 5 (2002)
[hereinafter “2002 Report”]. According to the Sentencing
Commission, however, the individual statements of legislators at
the time suggest that Congress believed crack was (1) especially
addictive, (2) more likely to be connected with other serious
crimes, (3) more likely to cause severely damaging physiological
effects, (4) more attractive and accessible to young users, and (5)
more prone to widespread use because of its “‘purity and potency,’
the cost per dose, [and] the ease with which it [was] manufactured,
transported, disposed of, and administered.” U.S. Sentencing
Comm’n Special Report to the Congress: Cocaine and Federal
Sentencing Policy 118 (1995) [hereinafter “1995 Report”].

        In 1987, the Sentencing Commission incorporated the 100-
to-1 ratio into the Guidelines’ base offense levels and drug quantity
table, and thereby established sentencing ranges for the full range
of crack and powder cocaine quantities. See U.S.S.G. § 2D1.1(c).
As a result, according to the Commission, sentencing ranges for
crack offenses are three to six times longer than those for powder
cocaine offenses involving equal amounts of drugs.3 2002 Report
at iv.

        Over the years, judges, scholars, practitioners, public
interest groups, and civic leaders have criticized the 100-to-1 ratio
on a number of grounds. To date, the Sentencing Commission
itself has issued four reports highlighting problems with the ratio
and advising Congress to change it. In February 1995, at the
request of Congress, the Commission studied the ratio and released
a report unanimously recommending that the 100-to-1 ratio be
reduced. Among other criticisms, the Commission noted that it
disproportionately affected African Americans and sometimes
forced district courts to punish low-level crack dealers much more


       3
        In 2006, courts sentenced crack offenders to an average of
122 months in prison and powder cocaine offenders to 85 months.
In other words, crack offenders received sentences that were on
average 43.5 percent higher than those of powder cocaine
offenders. U.S. Sentencing Comm’n Report to the Congress:
Cocaine and Federal Sentencing Policy 13 (2007).

                                 5
severely than high-level powder cocaine suppliers. 1995 Report at
xii-xiii. Soon after the issuance of this report, the Commission
voted four to three to submit an amendment to Congress that would
have equalized penalties based on drug quantities. See 60 Fed.
Reg. 25,074 (May 10, 1995); 2002 Report at v. However,
Congress passed and the President signed legislation rejecting the
amendment and directing the Commission to submit new
recommendations that would reflect the view that “the sentence
imposed for trafficking in a quantity of crack cocaine should
generally exceed the sentence imposed for trafficking in a like
quantity of powder cocaine.” Pub L. No. 104-38, 109 Stat. 334
(Oct. 30, 1995).

       In April 1997, the Commission issued its follow-up report
and stated that it was “firmly and unanimously in agreement that
the current penalty differential for federal powder and crack
cocaine cases should be reduced.” U.S. Sentencing Comm’n
Special Report to the Congress: Cocaine and Federal Sentencing
Policy 2 (1997) [hereinafter “1997 Report”]. More specifically, the
Commission recommended that Congress reduce the ratio to 5-to-1
for purposes of the five-year mandatory minimum by increasing the
threshold amount of crack and reducing it for powder cocaine.4 

The Commission believed these changes would more
effectively accomplish the goals of federal drug sentencing policy.
Congress, however, took no action.

       In May 2002, at the request of the Chairman and Ranking
Member of the Senate Judiciary Committee, the Commission
issued a third report, which “again unanimously and firmly
conclude[d]” that Congress should “decrease[] substantially” the
100-to-1 ratio. 2002 Report at viii. The Commission specifically
recommended reducing the ratio to 20-to-1 by increasing threshold
quantities for crack.5 It explained that the statutory and Guidelines


       4
        The Commission also recommended equalizing the penalty
for simple possession of crack and powder cocaine. 1997 Report
at 10.
       5
       Unlike the 1997 Report, the 2002 Report did not
recommend decreasing threshold amounts for powder cocaine.

                                 6
penalties exaggerated the harmfulness of crack, swept too broadly
to include low-level offenders, overstated the seriousness of most
crack-related crimes, and disproportionately impacted minorities.

Congress again failed to act.

         Finally, in May 2007, the Commission issued a fourth report
that reiterated the conclusions of the 2002 Report. Without
suggesting any particular ratio, the report “unanimously and
strongly urge[d] Congress to act promptly” by increasing threshold
quantities for crack. U.S. Sentencing Comm’n Report to the
Congress: Cocaine and Federal Sentencing Policy 8 (2007)
[hereinafter “2007 Report”].6          In addition, noting that “the
problems associated with the 100-to-1 drug quantity ratio . . . are
so urgent and compelling,” the Commission submitted an
amendment to Congress that would adjust crack quantities
downward by two levels.7 

The amendment, which will
take effect in November 2007 if Congress does not act, is “tailored
. . . to fit within the existing statutory penalty scheme,” and, as a
result, provides only a “partial remedy.” 

report states,
“[a]ny comprehensive solution requires appropriate legislative
action by Congress.” 

2002 Report at viii.
       6
          The report also advised against adjusting the ratio by
reducing threshold quantities for powder cocaine, stating that
“there is no evidence to justify such an increase in . . . penalties for
powder cocaine.” 2007 Report at 8. In addition, the report urged
Congress to repeal the mandatory minimum sentence for simple
possession of crack under 21 U.S.C. § 844. 

the amendment, the statutory minimum sentences
would fall at the upper limit of their corresponding Guidelines
ranges rather than below those ranges. For example, assuming a
Criminal History Category of I and no adjustments, the amendment
would change the Guidelines range for distribution of 50 grams of
crack (which carries a minimum statutory sentence of 120 months)
from 121 to 151 months, to 97 to 121 months. The amendment
would adjust crack quantities above and below the mandatory
minimum threshold quantities accordingly. 2007 Report at 9.

                                   7
                                  B.

        Until 2005, the Guidelines provided mandatory sentencing
ranges and thereby required district courts to impose prison terms
reflecting the 100-to-1 ratio.8 The federal sentencing landscape
changed, however, when the Supreme Court made the Guidelines
advisory in Booker. We have since established a three-step
procedure for sentencing defendants:

       (1) Courts must continue to calculate a defendant’s
       Guidelines sentence precisely as they would have
       before Booker.

       (2) In doing so, they must formally rule on the
       motions of both parties and state on the record
       whether they are granting a departure and how that
       departure affects the Guidelines calculation, and take
       into account our Circuit’s pre-Booker case law,
       which continues to have advisory force.

       (3) Finally, they are required to exercise their
       discretion by considering the relevant [18 U.S.C.] §
       3553(a) factors, in setting the sentence they impose
       regardless whether it varies from the sentence
       calculated under the Guidelines.

United States v. Gunter, 

, 247 (3d Cir. 2006) (internal
quotation marks, citations, and alterations omitted).9


       8
        Prior to 2005, this Court, like our sister circuits, rejected a
number of legal and constitutional challenges to the 100-to-1 ratio.
See, e.g., United State v. Frazier, 

(3d Cir. 1992)
(holding that the 100-to-1 ratio did not violate the Equal Protection
Clause or constitute cruel and unusual punishment under the Eighth
Amendment).
       9
         We had not yet laid out this three-step process at the time
the District Court resentenced the Ricks brothers. At oral
argument, the parties contested whether the District Court
effectively applied the 20-to-1 ratio at what is now step one, the

                                  8
       In accordance with Booker, we now review sentences for
“reasonableness.” United States v. Cooper, 

, 327 (3d
Cir. 2006). In order for a sentence to be “reasonable,” the trial
court must give “meaningful consideration to the § 3553(a)
factors.”10 

We have previously noted that “[a] sentence



calculation of the Guidelines range, or at step three, the application
of the § 3553(a) factors. We need not address this issue. A
sentencing court “is required to calculate the crack/powder cocaine
difference in determining the Guidelines ranges.” 

. But a sentencing court may not, as explained below,
categorically establish a new ratio rather than apply the § 3553(a)
factors to the circumstances of a particular defendant.
       10
            The factors listed at § 3553(a) are:

       (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;
            (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
       ...
       (5) any pertinent policy statement—

                                    9
that falls within the guidelines range is more likely to be reasonable
than one outside the guidelines range.” 

see also Rita v.
United States, 

, 2463 (2007) (noting that when “both
the sentencing judge and the Sentencing Commission . . . reach[]
the same conclusion as to the proper sentence . . . [t]hat double
determination significantly increases the likelihood that the
sentence is a reasonable one”). In addition, we have explained that
“the more that a sentence varies from the advisory Guidelines
range, the more compelling the supporting reasons must be.”
United States v. Manzella, 

, 161 (3d Cir. 2007).

                                III.

        We first considered the impact of Booker on the Guidelines’
crack/powder cocaine ratio in Gunter, which was published after
the government filed its appeal in this case.11 There, we held that
a district court erred when it concluded that it had no discretion to
sentence below a Guidelines range that reflected the 100-to-1 ratio.
We stated 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.” 

.



            (A) issued by the Sentencing
            Commission . . . subject to any
            amendments made to such policy
            statement by act of Congress . . .;
       ...
       (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). The statute also instructs judges to “impose
a sentence sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2).” 

response to our request, the parties submitted letters
discussing the impact of Gunter on this appeal.

                                 10
Although we were not squarely presented with the question of
whether district courts are permitted to establish new ratios, we
stressed that our holding did “not suggest (or even hint) that
[district courts] categorically reject the 100:1 ratio and substitute
[their] own, as this is verboten.” 

extent this last
statement is dictum, we hold today that district courts may not
replace the 100-to-1 ratio with a ratio of their own choosing.

                                 A.

        The government argues that district courts are not permitted
to categorically reject the 100-to-1 ratio established by Congress
and incorporated into the Guidelines. The government also
contends that allowing courts to create their own ratios will lead to
unwarranted sentencing disparities. The Ricks brothers argue that
the District Court imposed appropriately individualized sentences
after considering the § 3553(a) factors. In addition, Marc Ricks
asserts that district courts may apply any ratio that is “reasonable,”
including the 20-to-1 ratio endorsed by the Commission’s 2002
Report. We turn first to the issue of whether courts may establish
their own ratios as a matter of policy, and then to whether the
District Court did so in this case.

                                 1.

        There is little disagreement that the 100-to-1 ratio
overrepresents the relative harm of crack as compared to powder
cocaine. Nevertheless, it is the role of Congress, and not the
courts, to determine what crimes are worse than others. See United
States v. Castillo, 

, 357-58 (2d Cir. 2006) (“We have
no authority to substitute our policy preferences for that of the
legislative branch.”); United States v. Spears, 

, 1178
(8th Cir. 2006) (en banc) (“Our court, as an unelected body, cannot
impose its sentencing policy views and dismiss the views of the
peoples’ elected representatives.”). Indeed, as the Supreme Court
stated many years ago, “defining crimes and fixing penalties are
legislative, not judicial, functions.” United States v. Evans, 

, 486 (1948).

     As recounted above, Congress created the 100-to-1 ratio
when setting mandatory minimum sentences in the Anti-Drug

                                 11
Abuse Act of 1986. The Sentencing Commission responded by
incorporating the 100-to-1 ratio into the Guidelines, which were
approved by Congress. Despite overwhelming criticism of the
ratio, Congress has repeatedly refused to alter or eliminate it.

        Marc Ricks, however, argues that by rendering the
Guidelines advisory, Booker permits district courts to reject the
Guidelines’ 100-to-1 ratio, as long as they impose sentences that
comply with the mandatory minimum sentences in the 1986 Act.12
We disagree. Even under the current advisory system, district
courts must “meaningfully consider” § 3553(a)(4), i.e., “the
applicable category of offense . . . as set forth in the guidelines.”
The section of Booker that makes the Guidelines advisory explains
that “the remaining system, while not the system Congress enacted,
nonetheless continue[s] to move sentencing in Congress’ preferred
direction, helping to avoid excessive sentencing disparities while
maintaining flexibility sufficient to individualize sentences where
necessary.” 

(emphasis added). The
Guidelines remain at the center of this effort to “avoid excessive
sentencing disparities,” and, as the Booker Court explained, the
Sentencing Commission will continue “to promote uniformity in
the sentencing process” through the Guidelines. 

We
have likewise observed that the “‘Guidelines remain an essential
tool in creating a fair and uniform sentencing regime across the
country.’” 

(quoting United States v.
Mykytiuk, 

, 608 (7th Cir. 2005)).

       Booker stresses “flexibility” in terms of individualizing
sentences, not in terms of rejecting Guidelines provisions
wholesale. While the Guidelines are indeed advisory, “[n]othing
in Booker specifically authorizes district judges to rewrite different
Guidelines with which they generally disagree, which is effectively
what district judges do when they calculate a sentence with a 20:1
or 10:1 ratio instead of the 100:1 ratio in the drug sentencing



       12
         Michael Ricks, on the other hand, concedes that “the
ultimate authority to change the ratio is vested with Congress and
that body has failed to exercise that authority to date.” Michael
Ricks Br. at 20.

                                 12
table.” 

.13 We conclude that a district
court fails to “meaningfully consider” the Guidelines when it
rejects the 100-to-1 ratio as a matter of policy.

       In addition, we believe that when a district court
categorically rejects the 100-to-1 ratio, it fails to properly consider
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct” under § 3553(a)(6). Allowing district courts to
choose a non-Guidelines ratio as a matter of policy would
unquestionably lead to such disparities; some judges would
presumably continue using the 100-to-1 ratio while others might


       13
          Amici curiae argue that to avoid redundancy with §
3553(a)(1) (“the nature and circumstances of the offense”), the
reference to “the seriousness of the offense” in § 3553(a)(2)(A)
must mean that sentencing judges should conduct an independent
evaluation of the category of the crime. Other courts of appeals
have disagreed about whether this phrase refers to the individual
circumstances of a crime or the type of offense. Compare 

(“[P]rovisions such as § 3553(a)(2)(A) refer to the
seriousness of a particular set of factual circumstances, not to the
seriousness of the broad category of offenses as a general policy
matter.”) with United States v. Pickett, 

, 1352 n.4
(D.C. Cir. 2007) (“With the possible exception of § 3553(a)(2)(C)
& (D), the broadly stated purposes of sentencing set forth in §
3553(a)(2) are not confined to any particular defendant’s
situation.”). Though amici curiae’s reading of the statute is
certainly a plausible one, we believe that Booker’s focus on
judicial flexibility for individually tailored sentences weighs
against their interpretation. Further, while the concepts of “nature
and circumstances” and “seriousness” may overlap in the context
of individual offenses, we do not believe the terms are necessarily
redundant. For example, § 3553(a)(2) refers to “the need for the
sentence imposed . . . to reflect the seriousness of the offense.”
Unlike § 3553(a)(1), this language suggests the need for a sentence
to “reflect” to the public the seriousness of the particular crime
committed. This reading comports with other parts of § 3553(a)(2)
that require courts to consider the need for the sentence “to
promote respect for the law” and “to afford adequate deterrence.”

                                  13
employ a 20-to-1 or 5-to-1 ratio, or even eliminate the disparity in
drug quantities altogether. See 

.14

        For these reasons, we hold that district courts may not
categorically reject the 100-to-1 ratio. With this ruling, we join at
least seven other courts of appeals. See United States v. Pho, 

, 64 (1st Cir. 2006) (“[W]e hold that the district court erred
as a matter of law when it constructed a new sentencing range
based on the categorical substitution of a 20:1 crack-to-powder
ratio for the 100:1 ratio embedded in the sentencing guidelines.”);
United States v. Castillo, 

, 358 (2d Cir. 2006) (holding
that district courts may not “impose a different ratio as a policy
matter”); United States v. Eura, 

, 634 (4th Cir. 2006)
(stating that it “wholeheartedly agree[d]” with the First Circuit that
the categorical rejection of the 100-to-1 ratio is impermissible);
United States v. Leatch, 

, 791 (5th Cir. 2007)
(“Rejecting the 100:1 ratio because a court disagrees with
congressional sentencing policy is not a substitute for applying the
essential considerations of § 3553(a).”); United States v. Jointer,

, 687 (7th Cir. 2006) (“A district court simply cannot
substitute its own ratio for the 100:1 ratio.”); United States v.
Spears, 

, 1176 (8th Cir. 2006) (en banc) (“[N]either
Booker nor § 3553(a) authorizes district courts to reject the 100:1
quantity ratio and use a different ratio in sentencing defendants for
crack cocaine offenses.”); United States v. Williams, 

, 1369 (11th Cir. 2006) (“Congress concluded the 100-to-1
ratio is justified, and the courts have no authority to change
that.”).15 To date, not one court of appeals has allowed a district


       14
         As other courts have explained, the disparity between
sentences for crack and powder cocaine is not “unwarranted”
because it reflects congressional will. See, e.g., United States v.
Pho, 

, 64 (1st Cir. 2006); 

. We
have also stated more broadly that “any sentencing disparity
authorized through an act of Congress cannot be considered
‘unwarranted’ under § 3553(a)(6).” United States v. Vargas, 

, 100 (3d Cir. 2007).
       15
         The Sixth and Tenth Circuits have also made statements
suggesting their agreement on this issue, but have done so in cases

                                 14
court to replace the 100-to-1 ratio with one of its choosing.16

                                  2.

       Marc Ricks also asserts that the District Court did not reject
the 100-to-1 ratio as a matter of policy, but instead applied the 20-
to-1 ratio specifically to his case while properly considering §
3553(a). Similarly, Michael Ricks argues that whether the District
Court categorically rejected the 100-to-1 ratio or not, it reduced his
sentence only after also considering the § 3553(a) factors.

      The record makes clear, however, that in sentencing
Michael and Marc Ricks, the District Court used a 20-to-1 ratio
because it disagreed with the 100-to-1 ratio as a policy matter.



addressing the more narrow question of whether a district court errs
when it refuses to apply a ratio other than 100-to-1. See United
States v. Caver, 

, 249 (6th Cir. 2006) (stating that for
the appellate court “to declare a portion of the Sentencing
Guidelines unreasonable under all circumstances” would require
“exercising legislative power . . . [that] Booker does not
authorize”); United States v. McCullough, 

, 1172
(10th Cir. 2006) (citing statements in Pho and Eura prohibiting the
categorical rejection of the 100-to-1 ratio and stating that it
“agree[d]” with “this authority”). The D.C. Circuit, by contrast,
held in a recent case that a district court does err when it “refuse[s]
to consider the problems that arise from applying the Guideline in
crack cases,” but specifically noted that it was not presented with
the application of a different ratio. United States v. Pickett, 

, 1356 (D.C. Cir. 2007). It does not appear that the Ninth
Circuit has yet issued a precedential opinion addressing the effect
of Booker on the application of the 100-to-1 ratio.
       16
          We note that the Supreme Court has granted certiorari in
United States v. Kimbrough, 174 Fed. Appx. 798, 799 (4th Cir.
2006), cert. granted by Kimbrough v. United States, 

(2007), in which the Fourth Circuit stated that “a sentence
that is outside the guidelines range is per se unreasonable when it
is based on a disagreement with the sentencing disparity for crack
and powder cocaine offenses.”

                                  15
Although the Court also discussed various relevant factors under
§ 3553(a), it applied the 20-to-1 ratio to establish adjusted
sentencing ranges and then imposed sentences within those new
ranges. Further, the Court did not choose a 20-to-1 ratio because
of the particular facts of either brother’s case. See, e.g., Consol.
App. 119 (“[A]s I’ve done consistently in the cases that I’ve had
here . . . I looked to the Sentencing Commission’s suggestion that
a 20 to 1 might be reasonable, [and] that strikes me as fair.”). In
any event, as explained below, to the extent district courts may
consider the crack/cocaine differential, they should not do so by
creating a new ratio altogether.

                                 B.

        Although district courts may not categorically reject the
100-to-1 ratio, they may, as Gunter put it, “consider the
crack/powder cocaine differential in the Guidelines as a factor”
when sentencing 

. How are trial
courts, if they choose to exercise their discretion, to go about
“factoring” the differential without creating a new ratio? They
should first calculate the correct Guidelines range and rule on any
departure motions, according to steps one and two of the procedure
we set out in Gunter. Then, considering the individual
circumstances of a defendant and the specific crime, district courts
should consider the relevant § 3553(a) factors. It is at this stage
(step 3) that courts may consider the crack/cocaine differential as
it applies to the particular case before them. See 

(“[W]e do not intend . . . 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.”).

       While the views of the Sentencing Commission may not be
used to justify a new ratio altogether, district courts may consider
the analysis in the Commission’s reports when applying the §
3553(a) factors to a specific case and defendant. For example, the
Commission’s reports, as well as other sources, can inform the §
3553(a) analysis of “the nature and circumstances of the offense”
or “the need for the sentence imposed . . . to reflect the seriousness
of the offense, to promote respect for the law, . . . to provide just
punishment for the offense . . . [and] to afford adequate deterrence

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to criminal conduct.” See 

(“It may be
that for some of the reasons stated in the Sentencing Commission’s
reports, the Guidelines range in a given crack case overstates the
seriousness of the particular defendant’s offense or that
individualized mitigating factors counsel against a Guidelines
sentence.”); 

(“[T]he Sentencing
Commission’s detailed reports on crack and cocaine sentencing
may have ‘practical utility’ to a district court’s evaluation of the
facts and circumstances of the individual case in light of the §
3553(a) factors.”) (footnote omitted). As one of our colleagues in
the Fourth Circuit put it, “[t]he Commission’s findings . . . can be
considered insofar as they are refracted through an individual
defendant’s case.” 

(Michael, J., concurring)
(quoted in 

).

        In short, a district court may, at step three, view the
sentencing disparity as too vast. However, it must do so as applied
to the particular defendant that appears before the court. In terms
of sentencing process, a court must give its reasons for why it
views the ratio as too harsh when applied to the defendant.

        We appreciate that sometimes it will be difficult for trial
judges to conscientiously balance factors such as seriousness,
deterrence, and just punishment, while respecting the policy
choices of Congress and seeking to avoid unwarranted sentencing
disparities. We imagine this will be particularly challenging in
cases involving the 100-to-1 ratio, which has been more roundly
and persuasively criticized than perhaps any other aspect of current
sentencing law. Certainly, a rule that courts could reject the 100-
to-1 ratio altogether or, conversely, never consider criticisms of the
ratio would be simpler for district courts to apply. Nevertheless,
we believe that prohibiting the categorical rejection of the 100-to-1
ratio while permitting case-specific consideration of the differential
is consistent with § 3553(a) as well as the reasoning in Booker and
Gunter.

                                IV.

       The District Court understandably wanted to apply a fairer
drug quantity ratio than the current Guidelines allow, and it
logically looked to the recommendations of the Sentencing

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Commission for guidance in doing so. Indeed, as a matter of
policy, we agree with the District Court that a 100-to-1 ratio leads
to unjust sentences, and we encourage Congress to revisit the issue
and heed the recommendations of the Commission. Meaningful
consideration of the § 3553(a) factors, however, does not permit
trial courts to categorically reject a provision of the Guidelines that
Congress has endorsed.

       We conclude that when a district court imposes a below-
Guidelines sentence for a crime involving crack, the record must
demonstrate that the court focused on individual, case-specific
factors. Because courts may not replace the 100-to-1 ratio with
one of their choosing, we will vacate the sentences of Michael and
Marc Ricks and remand to the District Court for resentencing in
accordance with this opinion.




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