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United States v. Scott

February 11, 2009


Appeal from the United States District Court for the Western District of Wisconsin. No. 3:05-cr-00116-bbc-1-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before COFFEY, RIPPLE and SYKES, Circuit Judges.

Leavie T. Scott pleaded guilty to possession with intent to distribute cocaine and cocaine base, and he was sentenced to 151 months' imprisonment. We affirmed this sentence on appeal, see United States v. Scott, 192 Fed. Appx. 552 (7th Cir. 2006); however, the Supreme Court vacated our judgment and remanded the case in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). We, in turn, remanded to the district court for resentencing. See United States v. Scott, 274 Fed. Appx. 488 (7th Cir. 2008). On remand, the district court imposed a sentence of 120 months. Mr. Scott again appeals, and we now affirm.


On August 19, 2005, Mr. Scott pleaded guilty to one count of possessing with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 841. With respect to his sentence, Mr. Scott argued that the guideline sentence for crack cocaine was unduly harsh; he asked the district court to impose a sentence calculated according to the guideline for powder, as opposed to crack, cocaine. The district court declined Mr. Scott's request, calculated Mr. Scott's sentence using the guideline for crack cocaine and imposed a sentence of 151 months.

On appeal, Mr. Scott again challenged on several grounds the imposition of the 100:1 ratio of powder to crack cocaine set forth in the Sentencing Guidelines. We rejected his arguments and affirmed the district court's sentence.

On petition for writ of certiorari, the Supreme Court of the United States vacated our judgment in light of Kimbrough, 128 S.Ct. 558, and remanded the case to us. We then returned the case to the district court for resentencing.

In the district court, Mr. Scott maintained that, although the guideline ranges for crack-cocaine sentences had been reduced, there was no rational basis for distinguishing crack cocaine from powder cocaine. Consequently, he submitted, the guideline range for his sentence for possession of crack cocaine should correspond to the guideline range for an equivalent amount of powder cocaine. He also urged the court, in reaching its sentencing determination, to consider his extensive efforts at rehabilitation during his incarceration. For its part, the Government believed that a sentence within the revised guideline range adequately would reflect the seriousness of Mr. Scott's crimes, his criminal history as well as his efforts to make productive use of his time in prison.

After receiving the parties' submissions and listening to their arguments, the district court resentenced Mr. Scott to 120 months' imprisonment. It noted that, in imposing sentence, the court was "taking into consideration the advisory sentencing guidelines and the statutory purposes of sentencing." R.58 at 11. It observed that, applying the revised guidelines for crack cocaine violations, Mr. Scott's initial offense level was 30, which, with a three-level adjustment for acceptance of responsibility, was lowered to 27. Considering Mr. Scott's criminal history category, this calculation yielded an advisory range of 130 to 162 months. The court went on to note that Mr. Scott had committed the crime for which he was indicted after making five previous sales of cocaine base to a confidential informant and while wearing a monitoring device required as a condition of probation. Additionally, Mr. Scott had an "extensive" criminal history dating back to the age of sixteen. Id. at 12. The court acknowledged that Mr. Scott had used his last confinement to "earn[] [his] GED and complete[] the 40-hour drug program," but remarked that Mr. Scott also had been disciplined on several occasions. Id. In sum, the court stated:

I believe a sentence slightly below the low end of the guidelines or 120 months is sufficient and no greater than necessary to hold you accountable for your serious criminal conduct, to promote respect for the law, achieve parity with the sentences of similarly-situated offenders and protect the community from further criminality on your part.

Id. at 13.

Mr. Scott timely ...

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