Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04-CR-818-Amy J. St. Eve, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 18, 2008
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.
Defendants Reginald Davis, Anthony Knox, and Armean Knox made a deal to buy*fn1 fourteen semi-automatic handguns for the bargain price of 2 1/4 ounces of crack cocaine. As their unfortunate luck would have it, the seller was an undercover agent. After being arrested on various drugs and weapons charges, each defendant pleaded guilty to conspiracy to distribute more than 50 grams of crack. On appeal, the defendants raise several challenges to the reasonableness of their sentences, including that Kimbrough v. United States, 128 S.Ct. 558 (2007), entitles them to resentencing.
On three separate occasions between June and September 2004, Davis sold between one-quarter and one-half ounces of crack cocaine to an undercover agent with the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). During each of these meetings, Davis expressed an interest in purchasing handguns from the agent. At the third meeting, Davis introduced the agent to Anthony, and the two defendants negotiated a deal to pay $2000 cash for one .45-caliber and thirteen .38-caliber guns. Armean also met the agent at this meeting when he delivered the crack for purchase.
On September 9, 2004, Davis and Armean met with the agent again to discuss the guns purchase, and the agent suggested that the defendants pay for the guns with 2 1/4 ounces of crack instead of $2000 cash. Davis and Armean readily agreed to this payment term, since, according to the defendants, that quantity of crack was worth only about $1000 to $1400. Davis indicated that he could easily supply the requested 2 1/4 ounces, telling the agent that "if you want two and a split that's nothing." During this meeting, Davis called Anthony, who also agreed to the change in payment.
On September 16, 2004, Anthony and Armean delivered*fn2 61.5 grams of crack to the agent in exchange for the fourteen guns. ATF agents arrested Anthony and Armean on site immediately after they received the guns, and Davis was later arrested in December 2004.
The government obtained an indictment charging Davis, Anthony, and Armean with one count of conspiracy to possess with intent to distribute and to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846, and several counts of intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Additionally, the indictment charged Anthony and Armean each with one count of being felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). The indictment also charged Davis with conspiring with another individual to possess with intent to distribute and to distribute more than five grams of crack cocaine, but the government later dismissed the charges against that individual. The defendants pleaded guilty without plea agreements. Each defendant pleaded guilty to the conspiracy to distribute more than 50 grams of crack cocaine, and Anthony and Armean pleaded guilty to the firearms possession counts. The government subsequently dismissed all of the distribution counts against the defendants and the other conspiracy count against Davis.
B. Sentencing Proceedings
The defendants were sentenced between December 2006 and March 2007. Under the Sentencing Guidelines, Davis qualified as a career offender based on three of his prior felony drug convictions, see U.S.S.G. § 4B1.1(a), resulting in a criminal history category of VI and an offense level of 37, see id. § 4B1.1(b)(A) (applying an offense level of 37 for offenses with statutory maximums of life imprisonment); 21 U.S.C. § 841(b)(1)(A)(iii) (imposing a maximum sentence of life imprisonment for drug offenses involving 50 grams or more of crack). After a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, Davis' total offense level was 34, yielding an advisory guidelines sentencing range of 262-327 months. This sentencing range was higher than what Davis would have received had he been sentenced as a non-career offender under the drug-offense guideline, § 2D1.1; although Davis' criminal history category was VI even before the application of § 4B1.1, his offense level was higher under § 4B1.1.
At his sentencing hearing, Davis asked for a below-guidelines sentence based on the Guidelines' 100:1 disparity between sentences for crack- and powder-cocaine*fn3 offenses, the ATF agent's use of sentencing entrapment and manipulation, and Davis' cooperation with the government. Davis also presented substantial evidence of his unstable childhood and his family's history of substance abuse, as well as expert testimony of Davis' mental illness.
The district court dismissed Davis' argument based on the severity of the crack/powder disparity, citing then-binding circuit precedent precluding the court from relying on that disparity as a basis for imposing a sentence below the guidelines range. See United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006), abrogated by Kimbrough v. United States, 128 S.Ct. 558 (2007). The court also rejected Davis' claims of sentencing entrapment, sentencing manipulation, and cooperation with the government. The court did, however, give substantial credit to Davis' evidence of his difficult childhood and history of mental illness. Concluding that these factors made it reasonable to deviate from the Guidelines, the court gave Davis a below-guidelines sentence of 220 months.
Anthony, like Davis, qualified as a career offender under § 4B1.1, resulting in a criminal history category of VI and an offense level of 37. After a three-level reduction under § 3E1.1 for acceptance of responsibility, Anthony's total offense level was 34, yielding an advisory guide-lines sentencing range of 262-327 months. As in Davis' case, this sentencing range was higher than what Anthony would have received under § 2D1.1 as a non-career offender; although Anthony's criminal history category was VI even before the application of § 4B1.1, his offense level was higher under § 4B1.1.
At the sentencing hearing, Anthony argued for a below-guidelines sentence based on the severity of the Guidelines' 100:1 crack/powder disparity and the ATF agent's use of sentencing manipulation. The district court did not accept these arguments and imposed a minimum-guide-lines sentence of 262 months.
Armean, unlike his co-defendants, did not qualify as a career offender; his sentence for the drug offense was determined by § 2D1.1. Because the guns purchase involved a quantity of crack between 50 and 150 grams, Armean's base offense level was 32. After a two-level*fn4 enhancement for the possession of a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction for acceptance of responsibility under § 3E1.1, Armean's total offense level was 31. His criminal history category was IV, ...