Appeals from the United States District Court for the Western District of Wisconsin. Nos. 06 CR 217, 06 CR 214, 07 CR 58-John C. Shabaz, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before MANION, KANNE, and TINDER, Circuit Judges.
This opinion consolidates for decision three cases argued before this panel on February 19, 2007. All three cases present a similar question-an appeal of a crack sentencing and an argument about the crack/powder cocaine sentencing disparity. We will first address the other, for the most part meritless, issues raised in the individual cases and then move into the discussion of the crack sentencing ratio, which impacts all three cases. For the reasons discussed herein, we vacate and remand both Williams's and Embry's case for resentencing in light of Kimbrough and affirm Clanton's.
On April 18, 2007, Carlton Embry was charged in a one-count indictment with possession of more than five grams of cocaine base (crack cocaine) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He pled guilty on May 25, 2007. On August 2, 2007, he was sentenced to 265 months in prison followed by five years of supervised release plus a $100 special assessment. Embry now appeals that sentence. There are essentially four issues on appeal:
(1) that the application of the 100-to-1 cocaine crack/ powder ratio in the sentencing guidelines violates his due process rights; (2) that Almendarez-Torres was wrongly decided and that judicial fact finding with respect to convictions not included in the indictment violates his Sixth Amendment rights; (3) that the Booker remedial opinion wrongly permits judicial fact finding in violation of the Constitution; and (4) that the inclusion of an "alleged" gang affiliation in his pre-sentence report ("PSR") violates his due process right that the PSR not contain "materially untrue, inaccurate, or unreliable" information. We will address the last three arguments in the following paragraphs and return to the first in the consolidated discussion further below.
Embry argues that judicial fact finding of convictions not included in the indictment violates his rights under the Sixth Amendment. He asserts that Almendarez-Torres v. United States, 523 U.S. 224, 246-47 (1998), was wrongly decided and has been eroded in subsequent case law; so it should be overruled. This argument, of course, must fail, as we have no authority to overrule a decision by the Supreme Court of the United States. As we have held in previous cases, Almendarez-Torres is still good law, and we will continue to apply it until the Supreme Court instructs otherwise. See United States v. Johnson, 495 F.3d 536, 543-44 (7th Cir. 2007) ("The governing law of the Supreme Court unequivocally states that the fact of a prior conviction need not be found by a jury beyond a reasonable doubt, nor must it be alleged in the indictment.").
Embry also contends that the framework established by United States v. Booker, 543 U.S. 220 (2005), permits judicial fact finding, violating his constitutional rights. He argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Cunningham v. California, 549 U.S. 270 (2007), he was denied his Sixth Amendment right to trial by jury when the court imposed a sentence under the so-called advisory guidelines. However, contrary to that assertion, we have already found that "Booker eliminated the constitutional concern by making the guidelines advisory." United States v. Martinez, 518 F.3d 505, 510 (7th Cir. 2008). "Cunningham therefore has no effect on post-Booker federal practice. District judges remain free, as the remedial portion of Booker instructs, to make findings of fact that influence sentences, provided that the sentence is constrained by the maximum set by statute for each crime." United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); see also United States v. Shannon, 518 F.3d 494, 495-96 (7th Cir. 2008). Embry has offered no new compelling reasons or arguments; thus we decline to depart from precedent. See United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007).
Worthy of slightly more consideration, Embry also objects to the inclusion of a gang affiliation allegation in his PSR and requests that it be stricken. The PSR, in ¶ 24, states that a confidential informant told officers that Embry wore a gold medallion with a panther on it, signifying his membership in the Blackstone gang. This is also included as a gang affiliation in the PSR's "Identifying Data" section, labeling Embry as an "alleged Blackstone." Embry objected, arguing that this information is materially untrue; the medallion was not recovered in any searches, and a panther is not a symbol for the Blackstone gang.
Embry argues that he has a due process right to a PSR that does not contain "materially untrue, inaccurate, or unreliable" information. Embry does have a due process right not to be sentenced based on a PSR that contains materially untrue, inaccurate, or unreliable information, but he does not, as he phrased it, have a due process right to have a PSR free of those things. If the judge did not rely on the allegedly inaccurate information, then there can be no due process violation.
There is no doubt that a criminal defendant has a due process right to have the court consider only accurate information when imposing sentence, and that this right may be violated when the court considers information which is inaccurate. To succeed on such a claim the defendant must demonstrate that the information before the court was inaccurate and that the court relied on it.
United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992) (emphasis added) (citing United States v. Tucker, 404 U.S. 443, 447 (1972) and United States v. Musa, 946 F.2d 1297, 1306 (7th Cir. 1991)); see also United States v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005). Here, Embry has not even argued that the judge considered or relied in any way on the alleged gang membership in his sentencing. Thus, the inclusion of the alleged gang affiliation in the PSR does not violate Embry's due process rights.
While similar to the due process evaluation, we also consider separately whether the district court violated the Federal Rules of Criminal Procedure. Under Federal Rule of Criminal Procedure 32(i)(3)(B)-(C), a court, at sentencing, must for any disputed portion of the presentence report or other controverted matter-rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and must append ...