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United States v. Lori Newhouse

United States District Court, N.D. Iowa, Central Division

January 30, 2013

UNITED STATES of America, Plaintiff,
Lori NEWHOUSE, Defendant.

Page 956

Shawn Stephen Wehde, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Mary C. Gryva, Frank & Gryva, PC, Omaha, NE, James F. Whalen, Federal Public Defender, Des Moines, IA, Max Samuel Wolson, Federal Public Defenders Office, Robert A. Wichser, Federal Public Defender, Sioux City, IA, for Defendant.


MARK W. BENNETT, District Judge.





Indictment, Guilty Plea, And Sentencing Hearing 959


Arguments Of The Parties 960


Amicus curiaes arguments 960


Newhouses arguments 960


The prosecutions arguments 960




Sentencing Methodology: Computing The Guideline Range, Departures, And Variances 960


Step 1— Determination Of The Guideline Range 962


Step 2— Determination Of Whether To Depart 964


Troublesome Aspects Of The Career Offender Guideline-Potential For A Policy Disagreement 965


Background on policy disagreement based variances 965


Flaws in the Career Offender Guideline 968


A flawed creation 968


The Sentencing Commissions institutional role 968


Flawed origins and expansions of the Career Offender guideline 969


Failing to promote the goals of of sentencing 974


Just punishment in light of the seriousness of the offense 974


Protecting the public against nst further crimes of the defendant 975


Deterrence 976


Rehabilitation in the most effective manner 976


Unwarranted sentencing disparities— unwarranted uniformity 977


Unwarranted sentencing disparities— similarly situated defendants 979


Promoting respect for the law 980


Step 3— Application Of The 3553(a) Factors 981


Overview of 3553(a) 981


The nature and circumstances of the offense 981


Newhouses history and characteristics 982


The need for the sentence imposed 983


The kinds of sentences available 987


Any pertinent policy statement 988


The need to avoid unwarranted sentencing disparities 988


The need to provide restitution 990


Consideration of downward variance and sentence 990


Quasi-categorical policy disagreement 990


Variance and sentence 991


The Prosecutions Substantial Assistance Motions 991



Page 957

Does the grid and bear it scheme of the U.S. Sentencing Guideline Career Offender recidivist enhancement, § 4B1.1, raise a specter of aperiodic, irrational, and arbitrary sentencing guideline ranges in some cases? [1] This issue is squarely raised by Lori Ann Newhouse, a low-level pill smurfer, " [a] person who busily goes from store to store acquiring pseudoephedrine pills for a meth cook, usually in exchange for finished product." [2] Not only is Newhouse a mere pill smurfer, she is truly a " one day" Career Offender because her two prior drug predicate offenses arose out of a single police raid of a Motel 6 room over a decade ago, on February 26, 2002, in Altoona, Iowa, when Newhouse was just 22 years old. The police found Newhouse and three others in the motel room. Newhouse was charged in state court and pled guilty to possession with intent to deliver 3.29 grams of methamphetamine and 14.72 grams of psilocybin mushrooms. She was sentenced to probation on both charges, but on different days, by Chief Judge Arthur Gamble of the Fifth Judicial District

Page 958

of Iowa. For reasons unknown, but likely random, the local prosecutor filed the two charges on separate days. Ironically, if the two charges had been filed in the same charging document or the defense lawyer, the prosecutor, the judge or the court administer had scheduled the two sentencings for the same day— Newhouse would not be a Career Offender.

Because of Newhouse's Career Offender status, her U.S. Sentencing Guideline range was enhanced from 70-87 months to a staggering and mind-numbing 262 to 327 months. This breathes real life into the observation of the Seventh Circuit Court of Appeals, a year before Newhouse pled to the state court drug charges, that: " The consequences of being deemed a career offender for purposes of section 4B1.1 of the U.S. Sentencing Guidelines are grave." United States v. Hoults, 240 F.3d 647, 648 (7th Cir.2001). Newhouse is just one of thousands of " low hanging fruit" — non-violent drug addicts captured by the War on Drugs and filling federal prisons far beyond their capacity. [3] See

Page 959

United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359, at *3 (E.D.N.Y. Mar. 30, 2010) (observing that in " the war on drugs" " prosecutors can decide that street-level defendants like Vasquez— the low-hanging fruit for law enforcement— must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences." ); see also Susan Stuart, War As Metaphor And The Rule Of Law In Crisis: The Lessons We Should Have Learned From the War On Drugs, 36 S. ILL. U. L.J.. 1, 5 (2011) (pointing out that the war on drugs " has lasted longer than the reigns of the Roman Emperors Caligula through Nero." ); Marc Mauer, The Sentencing Project, The Changing Racial Dynamics of the War on Drugs 1 (2009) (reporting that there has been an 1100% increase in the number of persons incarcerated on drug charges since 1980, from about 40,000 people to 500,000 in 2009).[4]


A. Indictment, Guilty Plea, And Sentencing Hearing

On July 28, 2011, an Indictment was returned against Newhouse, charging her with manufacturing or attempting to manufacture 5 grams or more of pure methamphetamine, or a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C).[5] On April 26, 2012, Newhouse pled guilty before a U.S. magistrate judge to Count 2 of the Indictment. On that same day, I accepted Newhouse's guilty plea. A probation officer then prepared a presentence report (" PSR" ). The PSR found that Newhouse was a Career Offender because of her two prior predicate drug convictions. Before sentencing, Newhouse filed a Motion for Variance and her Sentencing Memorandum. On September 19, 2012, after reviewing Newhouse's Motion for Variance and her Sentencing Memorandum, I continued the sentencing because of the serious and complex issues raised, but not fully briefed, and requested the Federal Public Defender to enter the case as amicus curie. They did and the parties were given the opportunity to submit further briefing on the application of the Career Offender guideline to Newhouse. The Federal Public Defender filed an extensive and illuminating amicus curie brief, including a comprehensive discussion of reasons for disagreeing with the Career Offender guideline on policy grounds.[6] The prosecution filed a short brief offering no objection to a substantial downward variance based solely on the facts of Newhouse's prior predicate convictions. However, the prosecution urged me not to vary downward based on the 18 U.S.C. § 3553(a) factors and any policy disagreements with the Career Offender guideline.

Page 960

At the sentencing hearing on January 29, 2013, the prosecution, Newhouse and the amicus all presented documentary evidence. The prosecution also made motions for downward departure based on substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. After extensive and lively oral arguments punctuated with many questions by me, and Newhouse's allocution, I sentenced Newhouse. This opinion explains and amplifies the rationale for my sentence.

B. Arguments Of The Parties

1. Amicus curiae's arguments

The amicus argues that I have the authority to vary from the Career Offender guideline based on policy disagreements with that guideline. The amicus next argues that I should do so for the following policy reasons. First, the amicus contends that the Career Offender guideline was not developed as a result of the Sentencing Commission's exercise of its characteristic institutional role. Second, the amicus contends that the Sentencing Commission has steadily expanded the scope of the Career Offender guideline beyond Congress's statutory directive, and that this expansion has been undertaken without reliance upon, and contrary to, empirical data and national experience. Finally, the amicus argues that the resulting guideline, as applied to low-level participants in drug offenses, yields sentences that are greater than necessary to achieve the goals of sentencing under 18 U.S.C. § 3553(a).

2. Newhouse's arguments

Newhouse joined the amicus's arguments.

3. The prosecution's arguments

The prosecution asserts that Newhouse's unique criminal history warrants a significant downward variance. Specifically, the prosecution acknowledges that, because a single incident in 2002, resulted in Newhouse having two separately scored controlled substances offense convictions, a substantial downward variance is warranted. The prosecution recommends a downward variance from the bottom of Newhouse's advisory guideline range, 262 months, to at or about Newhouse's mandatory minimum sentence of 120 months. The prosecution, argues, in breathtakingly conclusory and cursory briefing, that a downward variance is not warranted based on either Newhouse's " personal/offense characteristics" , under 18 U.S.C. § 3553(a), or any policy disagreements with the Career Offender guideline. The prosecution's enlightened sentencing position, while welcomed for its bottom line, is analytically odd because in supporting their variance position they fail to mention or cite a single § 3553(a) factor.


A. Sentencing Methodology: Computing The Guideline Range, Departures, And Variances

Following the Supreme Court's decision in Gall, the Eighth Circuit Court of Appeals has repeatedly stated the methodology for determining a defendant's sentence as follows:

The district court should begin " by correctly calculating the applicable Guidelines range." " [T]he Guidelines should be the starting point and the initial benchmark[, but] [t]he Guidelines are not the only consideration [.]" The district judge should allow " both parties an opportunity to argue for whatever sentence they deem appropriate," and then should " consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party."

United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal citations

Page 961

omitted); United States v. Roberson, 517 F.3d 990, 993 (8th Cir.2008); see also United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir.2009) ( en banc ).

The Supreme Court has recognized that a party's argument for a sentence outside the calculated guideline range may " take either of two forms." Rita v. United States, 551 U.S. 338, 344, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). A party may " argue within the Guidelines' framework, for a departure," id. (emphasis in original), or a party may " argue that, independent of the Guidelines, application of the factors set forth in 18 U.S.C. § 3553(a) warrants a [different] sentence." Id. [7] The Eighth Circuit Court of Appeals has made clear that, while " similar factors may justify either a variance or a traditional departure," United States v. Woods, 670 F.3d 883, 888 (8th Cir.2012), district courts are not limited by the guidelines' departure policy framework when determining whether and by what extent to vary, see United States v. Chase, 560 F.3d 828, 832 (8th Cir.2009); United States v. VandeBrake, 679 F.3d 1030, 1037 (8th Cir.2012); see also United States v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir.2009) (" The judge is cabined, but also liberated, by the § 3553(a) factors." ).[8]

As a matter of procedure, the Eighth Circuit Court of Appeals has instructed that district courts should " continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)." See United States v. Washington, 515 F.3d 861, 866 (8th Cir.2008).

Although " a court of appeals may apply a presumption of reasonableness when conducting substantive review of a sentence within the advisory range, ‘ the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.’ " United States v. Henson, 550 F.3d 739, 740 (8th Cir.2008) (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456). The Supreme Court has emphasized this point, noting " [o]ur cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable," and that " [t]he Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable." Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 892, 172 L.Ed.2d 719 (2009) ( per curiam ) (emphasis in the original).

As the Eighth Circuit Court of Appeals has also explained, " [w]e may not require" " ‘ extraordinary’ circumstances to justify a sentence outside the Guidelines." Feemster, 572 F.3d at 462 (quoting Gall, 552 U.S. at 47, 128 S.Ct. 586). Instead, the district court

must make an individualized assessment based on the facts presented. [ Gall, 552 U.S. at 50, 128 S.Ct. 586.] If the court concludes that a sentence outside of the Guidelines range is warranted, then it

Page 962

must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. Id. [A] major departure should be supported by a more significant justification than a minor one. Id. After the district court determines the appropriate sentence, it must then adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id.

Feemster, 572 F.3d at 461.

First, I will determine the advisory guideline range for Newhouse. Next, I will determine whether any traditional (non-substantial assistance) departures, either upward or downward, are warranted. Third, I will consider whether to vary from the advisory guideline range based on my independent obligation to apply the § 3553(a) factors, including any policy disagreements with the Career Offender guideline. I may not rely on the § 3553(a) sentencing factors to impose a sentence below the mandatory minimum required by statute, even when the prosecution has filed and I grant a substantial assistance motion under § 3553(e). See United States v. Madison, 585 F.3d 412, 413 (8th Cir.2009). However, in cases like this one, where the guideline range exceeds the mandatory minimum, I may first consider the § 3553(a) factors to reduce a defendant's sentence. Depending on the strength of the § 3553(a) factors, this may include down to, but not below, the mandatory minimum. See United States v. Coyle, 506 F.3d 680, 683 (8th Cir.2007). Then, if I grant the prosecution's § 3553(e) motion, I may go below the mandatory minimum but only by applying the U.S.S.G. factors contained in § 5K1.1. Finally, I will decide the prosecution's motions for downward departure based on Newhouse's substantial assistance.

B. Step 1-Determination Of The Guideline Range

In determining Newhouse's advisory guideline range, I used the November 1, 2012, edition of the United States Sentencing Commission Guidelines Manual. See United States v. Lozoya, 623 F.3d 624, 625 (8th Cir.2010); see also VandeBrake, 679 F.3d at 1039 n. 7. The guideline for a violation of 21 U.S.C. § 841(a)(1) is found in § 2D1.1 and the Drug Quantity Table in § 2D1.1(c)(6). The parties agree, and I find, those sections set a base offense level of 28 because the offense involved at least 20, but less than 35, grams of pure methamphetamine. The parties agree, and I find, that Newhouse's offense involved 20 grams of pure methamphetamine; thus, her base offense level is 28. I next examine the potential offense level adjustments and enhancements. The parties agree, and I find, that Newhouse was a minor participant in the offense and qualifies for a two point reduction, pursuant to U.S.S.G. § 3B1.2(b). The parties further agree, and I find, that Newhouse qualifies for a three point reduction for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a)-(b). If Newhouse did not qualify as a Career Offender, her adjusted offense level would be 23. With a criminal history category IV and an offense level 23, her advisory guideline range is 70 to 87 months. She is subject to a mandatory minimum sentence of 60 months, pursuant to 18 U.S.C. § 841(b)(1)(B).[9] However, because the prosecution, in its sole discretion,

Page 963

filed an information under 21 U.S.C. § 851 based on a prior conviction for a " felony drug offense," her mandatory minimum doubles from 60 months to 120 months, and her statutory maximum increases from 40 years to life imprisonment. See 21 U.S.C. § 841(b)(1)(B); id. § 851(a)(1) (providing that a person convicted under § 841 may be subject to increased punishment by reason of one or more prior convictions only if " the United States attorney files an information with the court" ); id. § 802(44) (defining " felony drug offense" as " an offense that is punishable by imprisonment for more than one year under any law ... that prohibits or restricts conduct relating to narcotic drugs" ).[10]

The Career Offender guideline, set out in U.S.S.G. § 4B1.1, provides in relevant part that:

(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
(b) ... [I]f the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender's criminal history category in every case under this subsection shall be Category VI.

Offense Statutory Maximum Offense Level *

(1) Life 37

(2) 25 years or more 34

(3) 20 years or more, but less than 25 years 32

(4) 15 years or more, but less than 20 years 29

(5) 10 years or more, but less than 15 years 24

(6) 5 years or more, but less than 10 years 17

(7) More than 1 year, but less than 5 years 12

*If an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.

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U.S.S.G. § 4B1.1. The Sentencing Commission has defined " controlled substance offense" to include an offense under state law that is punishable by a term exceeding one year. Id. § 4B1.2(b).

The parties agree, and I find, that Newhouse is a Career Offender under § 4B1.1. Newhouse is 33 years old; her current offense is a " controlled substance offense," and she has two prior " controlled substance offenses."

Newhouse's Career Offender classification has a profound effect on her guideline offense level.[11] Pursuant to the § 4B1.1 table, Newhouse's offense level leaps from 26 to 37, an increase of 11 points. If not for the information filed by the prosecutor under § 851, thus raising the statutory maximum from 40 years to life, the offense level would be 34.

As previously noted, Newhouse qualifies for a three point reduction for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a)-(b). Thus, her adjusted offense level is 34. Application of the Career Offender guideline also requires that Newhouse's criminal history level be re-adjusted. Newhouse has seven criminal history points, resulting in a criminal history category IV. Section 4B1.1(b), however, requires that " [a] career offender's criminal history category in every case under this subsection shall be Category VI." U.S.S.G. § 4B1.1(b). Applying the Career Offender enhancement dramatically increases Newhouse's criminal history category from IV to VI. Category VI is normally reserved for defendants with 13 or more criminal history points. A total offense level 34 and a criminal history category VI mandates an advisory guideline range for Newhouse of 262-327 months. Application of the Career Offender guideline more than doubles the 120 month mandatory minimum sentence required by 21 U.S.C. §§ 841(b)(1)(B) and 851, more than quadruples the 60-month mandatory minimum sentence required under 21 U.S.C. § 841(b)(1)(B), and more than triples her guideline range (without a mandatory minimum) of 70 to 87 months.

C. Step 2-Determination Of Whether To Depart

In the second step of the sentencing methodology, I determine whether any traditional " departure" is appropriate, see United States v. Washington, 515 F.3d 861, 866 (8th Cir.2008), that is, whether there are features of Newhouse's case that potentially take it outside the guidelines " heartland" and make it a special or unusual case warranting a departure, see United States v. Chase, 451 F.3d 474, 482 (8th Cir.2006); U.S.S.G. § 5K2.0; id. § 1A1.1, cmt. (n.4(b)). The prosecution has not sought an upward departure, and

Page 965

Newhouse has not sought a downward departure.

Although the Supreme Court has said that it is " not incumbent on the District Court Judge to raise every conceivably relevant issue on his own initiative," Gall, 552 U.S. at 54, 128 S.Ct. 586, I note that U.S.S.G. § 4A1.3(b), p.s., encourages a downward departure if the defendant's criminal history category " substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." But any departure granted thereunder would be limited in this case to one criminal history category. See U.S.S.G. § 4A1.3(b)(3)(A). I further note that pre- Booker, the courts of appeals affirmed traditional departures from the Career Offender guideline, see United States v. Collins, 122 F.3d 1297, 1304 (10th Cir.1997); United States v. Reyes, 8 F.3d 1379, 1387 (9th Cir.1993); United States v. Bowser, 941 F.2d 1019, 1026 (10th Cir.1991), and that the reason for many such departures was that the prior offenses were " minor or too remote in time to warrant consideration." Michael S. Gelacak, Ilene H. Nagel and Barry L. Johnson, Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REV. 299, 356-57 (1996). Because the only departure motions before me are the prosecution's for substantial assistance, I will consider those motions after I consider whether to vary from the advisory guideline range. See Coyle, 506 F.3d at 683.

D. Troublesome Aspects Of The Career Offender Guideline— Potential For A Policy Disagreement

1. Background on policy disagreement based variances

Before turning to whether a policy-based variance from the guidelines is appropriate, some background is helpful.

In discussing grounds for a variance from the guidelines, " [i]n Kimbrough [ v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ], the Supreme Court held that it was not an abuse of discretion for a district court to vary from the Guidelines based on its policy disagreement concerning the disparity between crack and powder cocaine sentences." United States v. Battiest, 553 F.3d 1132, 1137 (8th Cir.2009) (citing Kimbrough, 552 U.S. at 110-111, 128 S.Ct. 558). Thus, " policy disagreements" may provide the basis for a variance from a guidelines sentence, even in a " mine-run" case. Kimbrough, 552 U.S. at 109-110, 128 S.Ct. 558.

The Supreme Court took up the issue of the district court's authority to vary from guidelines sentences in Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) ( per curiam ), which also involved the disparity between crack and powder cocaine sentences. In Spears, the Court explained that " the point of Kimbrough " is " a recognition of district courts' authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." Spears, 555 U.S. at 264, 129 S.Ct. 840. The Court also reiterated that a variance that is based on a policy or " categorical" disagreement with the guidelines, where the guidelines in question " ‘ do not exemplify the Commission's exercise of its characteristic institutional role,’ " are entitled to as much " respect" on appeal as a traditional " outside the ‘ heartland’ " departure. Id. (quoting Kimbrough, 552 U.S. at 109, 128 S.Ct. 558). Furthermore, the Court clarified, that if the sentencing court disagrees with the 100:1 ratio for crack cocaine cases, the sentencing court also necessarily has the authority to adopt some other ratio to govern a " mine-run case."

Page 966

Id. at 266, 129 S.Ct. 840. Specifically, " district courts are entitled to reject and vary categorically from the crack-cocaine guidelines based on a policy disagreement with those Guidelines." Id. The Court found that adopting the alternative of barring categorical variances " would likely yield one of two results" :

Either district courts would treat the Guidelines' policy embodied in the crack-to-powder ratio as mandatory, believing that they are not entitled to vary based on " categorical" policy disagreements with the Guidelines, or they would continue to vary, masking their categorical policy disagreements as " individualized determinations." The latter is institutionalized subterfuge. The former contradicts our holding in Kimbrough. Neither is an acceptable sentencing practice.

Id. at 266, 129 S.Ct. 840. The Court found, further, that the sentencing court had based its 20:1 replacement ratio on two well-reasoned decisions by other courts, which had, in turn, reflected the Sentencing Commission's expert judgment that a 20:1 ratio would be appropriate in a " mine-run case." Id. Not surprisingly, I paid special attention to the holding in Spears because the Eighth Circuit Court of Appeals had decided the case en banc, thus reversing the sentencing judge twice (in both the panel and en banc opinions), and I was that sentencing judge.

Spears specifically addressed only a sentencing court's authority to reject the 100:1 crack-to-powder ratio under the guidelines, categorically, and on policy grounds, and to adopt some other ratio to govern " mine-run cases." Nevertheless, the powerful implication of Spears is that, in other " mine-run" situations, the sentencing court may also reject guideline provisions on categorical, policy grounds— particularly when those guideline provisions " ‘ do not exemplify the Commission's exercise of its characteristic institutional role,’ " id. (quoting Kimbrough, 552 U.S. at 89, 128 S.Ct. 558)— and may, consequently, adopt some other well-reasoned basis for sentencing. Indeed, a number of federal courts of appeals have held that Kimbrough and Spears apply to policy disagreements with guidelines other than those applicable to crack cocaine. See, e.g., United States v. Henderson, 649 F.3d 955, 963 (9th Cir.2011) (holding " district courts may vary from the child pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." ); United States v. Grober, 624 F.3d 592, 599-600 (3rd Cir.2010) (holding that while sentencing court has authority to vary from advisory guidelines range based on its policy disagreement, when it does so it must provide " a reasoned, coherent, and sufficiently compelling explanation of the basis for [its] disagreement." ) (quoting United States v. Merced, 603 F.3d 203, 220 (3d Cir.2010) (internal quotation marks omitted)); United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) ( en banc ) (" We understand Kimbrough and Spears to mean that district judges are at liberty to reject any Guideline on policy grounds— though they must act reasonably when using that power." ); United States v. Cavera, 550 F.3d 180, 191 (2d Cir.2008) (en banc) (" As the Supreme Court strongly suggested in Kimbrough, a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses." ); United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir.2008) (" [ Kimbrough ] makes plain that a sentencing court can deviate from the guidelines based on general policy considerations." ).

Following this line of Supreme Court precedent, the Eighth Circuit Court of Appeals, as well as other courts of appeals,

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held that district courts are free to vary from the Career Offender guideline based on policy disagreements with it.[12] See United States v. Gray, 577 F.3d 947, 950 (8th Cir.2009) (holding that district court did not " misunderstand its authority to vary from the career-offender guideline" on the basis of policy disagreements, thus implying that a district court has authority to vary from Career Offender guideline based on policy disagreements with it); see also United States v. Collins, 474 Fed.Appx. 142, 144 (4th Cir.2012); United States v. Mitchell, 624 F.3d 1023, 1028-30 (9th Cir.2010); United States v. Corner, 598 F.3d 411, 416 (7th Cir.2010) ( en banc ); United States v. Michael, 576 F.3d 323, 327-28 (6th Cir.2009); United States v. McLean, 331 Fed.Appx. 151, 152 (3d Cir.2009); United States v. Boardman, 528 F.3d 86, 87 (1st Cir.2008); United States v. Sanchez, 517 F.3d 651, 662-63 (2d Cir.2008).

For the reasons discussed below, I join the growing chorus of federal judges who have rejected applying the Career Offender guideline in certain cases. See United States v. Whigham, 754 F.Supp.2d 239, 247-48 (D.Mass.2010) (granting downward variance on a number of grounds and noting that " there is also no question that the career offender guidelines are flawed." ); United States v. Merced, No. 2:08-cr-000725, 2010 WL 3118393, at *4 (D.N.J. Aug. 4, 2010) (granting variance from Career Offender guideline based on defendant's specific circumstances rather than as a policy based variance); United States v. Woody, No. 8:09CR382, 2010 WL 2884918, at *9 (July 20, 2010) (declining to apply Career Offender guideline because its application resulted in a sentence " excessively harsh" given defendant's offense conduct and criminal history); United States v. Patzer, 548 F.Supp.2d 612, 617 (N.D.Ill.2008) (declining to apply Career Offender guideline where its application overstated the seriousness of the defendant's prior convictions and was in excess of that required for deterrence); United States v. Moreland, 568 F.Supp.2d 674, 688 (S.D.W.Va.2008) (granting variance from Career Offender guideline where defendant was not " the ‘ repeat violent offender’ nor ‘ drug trafficker’ targeted by the career offender guideline enhancement," had not demonstrated a " pattern of recidivism or violence," and applying the Career Offender guideline resulted in unwarranted sentencing uniformity); United States v. Malone, No. 04-80903, 2008 WL 6155217, at *4 (E.D.Mich. Feb. 22, 2008) (granting downward variance from Career Offender guideline because sentence under it would punish defendant " greater than necessary to achieve the objectives of sentencing" and would have an " unwarranted impact"

Page 968

on minority groups " ‘ without clearly advancing a purpose of sentencing.’ " ) (quoting U.S. SENTENCING COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING, AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM 134 (2004)); United States v. Fernandez, 436 F.Supp.2d 983, 988-90 (E.D.Wisc.2006) (declining to apply Career Offender guideline because, based on defendant's specific circumstances, it produced a guideline range " greater than necessary to satisfy the purposes of sentencing." ); United States v. Naylor, 359 F.Supp.2d 521, 524 (W.D.Va.2005) (declining to impose Career Offender guideline due to defendant's young age when he committed the predicate offenses); United States v. Serrano, No. 04CR.424-19(RWS), 2005 WL 1214314, at *8 (S.D.N.Y. May 19, 2005) (imposing " non-guideline sentence" where defendant's Career Offender predicate offenses were all minor drug offenses for which defendant had never spent more than one year in prison); United States v. Carvajal, No. 04CR222AKH, 2005 WL 476125, at *5 (S.D.N.Y. Feb. 22, 2005) (finding Career Offender guideline resulted in sentences " excessive, in light of the nature of [defendant's] recidivism, for the Guidelines for Career Offenders are the same regardless of the severity of the crimes, the dangers posed to victims' and bystanders' lives, and other appropriate criteria." ); cf. United States v. Poindexter, 550 F.Supp.2d 578, 580-81 (E.D.Pa.2008) (noting that sentencing court did not apply Career Offender guideline because it " determined that the career offender designation ‘ overrepresents the total offense level in this case’ " ).

2. Flaws in the Career Offender Guideline

I turn now to a discussion of my quasi-categorical policy disagreements with the Career Offender guideline when applied to a defendant, like Newhouse, who is a nonviolent, recidivist drug addict occupying a low-level role in the drug trade in order to obtain drugs for her addiction. I use the phrase " quasi-categorical" because I recognize that some offenders have earned Career Offender status and should be sentenced within the Career Offender guideline, and, in rare instances, higher.

a. A flawed creation

i. The Sentencing Commission's institutional role

The Sentencing Reform Act of 1984 (" SRA" ), a chapter of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 2068, created the Sentencing Commission.[13] See Dorsey v. United States, __U.S. __, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012); Southern Union Co. v. United States, __ U.S. __, 132 S.Ct. 2344, 2358, 183 L.Ed.2d 318 (2012). The SRA directed the Sentencing Commission to enact sentencing guidelines that would meet the purposes of sentencing set forth in § 3553(a)(2), provide fairness, reduce unwarranted disparities, maintain sufficient flexibility to permit individualized sentences, and reflect advancement in knowledge of human behavior. Pub. L. No. 98-473, §§ 217(a), 239, 98 Stat. 1987 (1984); 28 U.S.C. § 991(b)(1). The SRA further directed the Sentencing Commission to " develop means of measuring the

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degree to which the [guidelines] are effective in meeting the purposes of sentencing," 28 U.S.C. § 991(b)(2), and was granted extensive research powers to do so.[14]28 U.S.C. § 995(a)(12)-(16). According to Justice Breyer, writing for the majority in Rita, the Sentencing Commission developed the first set of guidelines through an empirical approach, examining 10,000 presentence reports, and determining average sentences imposed before the guidelines, Rita, 551 U.S. at 349, 127 S.Ct. 2456, and that, as directed in 28 U.S.C. § 994(p), the Sentencing Commission could revise the guidelines thereafter by studying federal court decisions and seeking advice from prosecutors, law enforcement personnel, defense counsel, civil liberties groups, and experts.[15] Id. at 350, 127 S.Ct. 2456. " The result is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice." Id.

The Sentencing Commission has at times strayed from the " characteristic institutional role" described in the SRA and by the Court in Rita, and, when it has, the resulting guidelines are unlikely to properly reflect § 3553(a) considerations. See Kimbrough, 552 U.S. at 101-02, 128 S.Ct. 558. Kimbrough provides an example of a guideline that was not a product of the Sentencing Commission's expertise. In Kimbrough, the Supreme Court found that the guidelines' 100:1 powder/crack ratio was not based on the Sentencing Commission's empirical research, but, instead, was simply borrowed from the ratio Congress used to set minimum and maximum sentences in the Anti-Drug Abuse Act of 1986. Id. at 95-96, 128 S.Ct. 558. In turn, the Anti-Drug Abuse Act's ratio was based on Congress's mere assumptions regarding the relative dangerousness of crack. Id. at 95, 128 S.Ct. 558. After adopting the 100:1 ratio in the original guidelines, the Sentencing Commission's research revealed that many of the assumptions used to justify the 100:1 ratio were baseless. Id. at 97-98, 128 S.Ct. 558. As a result, the Sentencing Commission attempted to amend the guidelines to reduce the ratio to 1:1, but Congress blocked this attempt pursuant to 28 U.S.C. § 994(p), which provides that guideline amendments become effective unless disapproved by Congress. Id. at 99, 128 S.Ct. 558. Given that the 100:1 ratio was expressly contrary to the Sentencing Commission's own research, the Court held that the ratio did not " exemplify the Commission's exercise of its characteristic institutional role." Id. at 109, 128 S.Ct. 558.

As with the crack cocaine guideline, the Sentencing Commission strayed from its institutional role with the Career Offender guideline, albeit in both its creation and expansion. A subject I explore next.

ii. Flawed origins and expansions of the Career Offender guideline

The Career Offender guideline arose from Congress's statutory directive to the Sentencing Commission to set higher

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guideline ranges for " certain felony recidivists." [16] See United States v. Coleman, 635 F.3d 380, 382 (8th Cir.2011). Specifically, Congress was interested in targeting " repeat drug traffickers" and " repeat violent offenders." S. Rep. No. 98-225, at 175 (1983), 1984 U.S.C.C.A.N. 3182, 3358.[17] The Congressional view at the time was that drug trafficking was an " extremely lucrative" enterprise " carried on to an unusual degree by persons engaged in continuing patterns of criminal activity," and that " drug traffickers often have established substantial ties outside the United States from whence most dangerous drugs are imported into the country." Id. at 20, 213, 256. With this Congressional mindset, § 994(h) of Title 28, enacted as part of the SRA, directed:

The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46; and
(2) has previously been convicted of two or more prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections

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1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46.

For reasons unknown, the Sentencing Commission did not follow the plain terms of this statutory directive. An early version of the Career Offender guideline, published for public comment, provided: " The controlled substance offenses covered by this provision are identified in 21 U.S.C. § 841; 21 U.S.C. §§ 952(a), 955, 955a [later codified at 46 U.S.C. § 70503], 959; and in §§ 405B and 416 of the Controlled Substance Act as amended in 1986." See 52 Fed.Reg. 3920 (Feb. 6, 1987). This version was faithful to the statutory directive in § 994(h). However, this version was not adopted. Instead, since its first official set of sentencing guidelines, the Sentencing Commission has repeatedly expanded the list of qualifying drug offenses by adding numerous state and federal drug offenses to those listed in § 994(h).[19]

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To date, the following drug trafficking offenses have been added to the offenses in § 994(h):

(1) inchoate offenses— aiding and abetting, attempt, conspiracy
(2) any state offense punishable by more than one year
(3) " [u]nlawfully possessing a listed chemical with intent to manufacture a controlled ...

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