ORDER REQUESTING ADDITIONAL BRIEFING
MARK W. BENNETT, District Judge.
This is a sua sponte order requesting additional briefing on issues raised-either directly or indirectly-in defendant Christopher Bailey's (Bailey's) sentencing memorandum (docket no. 433-1). In Bailey's memorandum brief, he requests a downward variance based, in part, on the disparity between districts in how the Government charges firearm enhancements under 18 U.S.C. § 924(c). Without citing to any authority, Bailey asserts that I "can consider that there is a disparity between districts' charging of multiple counts of [§] 924(c)" in deciding whether to grant a downward variance under 18 U.S.C. § 3553(a) (docket no. 433-1, at 16-17). Bailey does, however, concede that the Eighth Circuit Court of Appeals's decision in United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007), prevents me from considering Bailey's § 924(c) sentences in granting a downward departure. Thus, Bailey's argument seems to be that I may consider the Government's disparate § 924(c) application in varying, but not departing, from Bailey's Guidelines sentence.
But, Bailey does not clearly state the grounds on which he wants me to grant a downward variance. On one hand, Bailey requests that I "vary downward... in accordance with 18 U.S.C. § 3553" (docket no. 433, at 1), which suggests that I should vary based on an individualized analysis of § 3553(a)'s factors. On the other hand, Bailey cites a number of cases discussing downward variances based on policy disagreements with the United States Sentencing Guidelines (U.S.S.G.) (docket no. 433-1, at 15-16), which suggests that I should vary based on a categorical disagreement with the Guidelines. While it is not clear whether Bailey wants me to depart by applying the § 3553(a) factors or by stating a policy disagreement with the Guidelines, the latter route seems more fruitful than the former for two reasons.
First, Hatcher seems to preclude me from varying by considering Bailey's § 924(c) sentences as part of an individualized § 3553(a) analysis. Although I believe that Hatcher was wrongly decided, a fair reading of Hatcher suggests that I may not directly consider Bailey's § 924(c) sentences in departing or varying from his Guidelines sentence. Hatcher 's holding is based, in part, on the (erroneous) interpretation that U.S.S.G. § 5G1.2(a)-which requires that a § 924(c) sentence be "imposed independently"-prevents me from considering a defendant's § 924(c) sentence in determining the length of that defendant's Guidelines sentence. Though I disagree with this interpretation, Hatcher is the law and I am bound to the extent of its holding.
Second, despite Hatcher 's holding, Hatcher did not involve a policy disagreement, and thus did not address whether I may vary from Bailey's Guidelines sentence based on a policy disagreement with § 5G1.2(a), as interpreted in Hatcher. In particular, it seems that Hatcher 's interpretation of § 5G1.2(a)-that it prevents me from considering defendants' § 924(c) sentences in deciding whether to grant a downward variance-in turn prevents me from meeting my obligation under § 3553(a) to "impose a sentence sufficient, but not greater than necessary, " to meet § 3553(a)(2)'s requirements. Hatcher would not necessarily govern a variance based on such a policy disagreement.
I will briefly note my preliminary thoughts on these issues below, and will then detail my request for additional briefing.
A. My Preliminary Analysis of Bailey's Current Argument
In his sentencing brief, Bailey requests a downward variance based on disparities in the Government's application of § 924(c), even though he concedes that I cannot grant a downward departure for that same reason. It appears that I cannot grant Bailey an individualized downward variance based on these § 924(c) disparities for two reasons: (1) The Eighth Circuit Court of Appeals follows the majority rule that district courts may not consider a defendant's mandatory § 924(c) sentence in deciding whether to vary below a Guidelines sentence; and (2) The United States Supreme Court and Eighth Circuit Court of Appeals have held that sentencing disparity caused by the Government's charging discretion does not run afoul of § 3553(a)'s goal of avoiding unwarranted sentencing disparity.
The Eighth Circuit Court of Appeals's decision in United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007), suggests that a district court may not consider a defendant's mandatory § 924(c) sentence in fashioning a downward departure or variance from an underlying Guidelines sentence. Bailey only quotes the part of Hatcher discussing departures: "[U]nder the Sentencing Guidelines, a mandatory consecutive sentence under 18 U.S.C. § 924(c) is an improper factor to consider in making a departure, or fashioning the extent of a departure. " Id. at 934 (quoting United States v. Working, 287 F.3d 801, 807 (9th Cir. 2002)) (emphasis added). From this quote, Bailey seems to assume that district courts retain the ability to grant a downward variance based on a defendant's § 924(c) sentence.
But, a closer reading of Hatcher suggests that district courts may no more vary than depart based on a defendant's mandatory § 924(c) sentence. The district court in Hatcher gave two defendants below-Guidelines sentences on their convictions for conspiracy, robbery, and money laundering specifically because those convictions were accompanied by severe § 924(c) mandatory sentences. Id. at 933-34. The Eighth Circuit Court of Appeals did not state whether the district court varied or departed from the Guidelines. But, upon reviewing the parties' appellate briefs, it is clear that the district court granted a downward variance under § 3553(a). The Eighth Circuit Court of Appeals held that "the district court imposed an unreasonable sentence" because it considered the severity of the defendants' § 924(c) sentences in varying on their underlying Guidelines sentences. Id. The court of appeals specifically noted that "[t]he district court considered the severity of the [§ 924(c)] firearm sentences in justifying its extraordinary variance " and that both defendants had received "an extraordinary variance from [their] Guidelines range." Id. (emphasis added). Thus, Hatcher apparently holds that district courts may not depart or vary based on the perceived harshness of a defendant's § 924(c) sentence.
While I recognize Hatcher 's applicability to both departures and variances, I think that Hatcher was wrongly decided. The Hatcher court held that a defendant's § 924(c) sentence was "an improper [variance] factor" because it "conflate[s] the sentences for the § 924(c) offenses and the [underlying] crimes." Id. In arriving at this holding, the court relied on U.S.S.G. § 5G1.2(a), which provides:
Except as provided in subsection (e), the sentence to be imposed on a count for which the statute (1) specifies a term of imprisonment to be imposed; and (2) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment, shall be ...