Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:05-cr-00980-18-Blanche M. Manning, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before POSNER, FLAUM, and SYKES, Circuit Judges.
This panel vacated Willie Earl Johnson's conviction for conspiring to distribute drugs and remanded to the district court to resentence him on his two remaining convictions. See United States v. Johnson, 592 F.3d 749 (7th Cir. 2010). After resentencing, Johnson appeals again, this time arguing that the district court committed procedural errors at resentencing and erred in reaching its relevant conduct finding. With some reluctance, we affirm the relevant conduct finding. But we remand because the district court did not respond to Johnson's repeated requests for a reduced crack-to-powder ratio.
Johnson and eight other defendants were indicted on charges related to selling crack cocaine and heroin in and around Aurora, Illinois, from approximately 2002 until 2005. Johnson was charged with conspiring to distribute and to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), possessing with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count Eleven), and utilizing a telephone to facilitate a felony drug crime, in violation of 21 U.S.C. § 843(b) (Count Twelve). Seven defendants pled guilty, while Johnson and his co-defendant Ismael Garza went to trial.
A jury found Johnson guilty on all three counts and concluded in a special verdict that he was accountable for between five and fifty grams of crack. At his first sentencing hearing, the district court attributed 31.5 grams of crack to him and sentenced him to 72 months' imprisonment on Counts One and Eleven, and 48 months' imprisonment on Count Twelve, to run concurrently.
On appeal, we vacated Johnson's conviction on Count One due to insufficient evidence, but affirmed his remaining convictions on Counts Eleven and Twelve. Johnson, 592 F.3d at 759. Accordingly, we remanded for resentencing on Counts Eleven and Twelve because the jury's special verdict assigning a quantity of five to fifty grams of crack was vacated with the conspiracy count. Id.
On remand, at Johnson's second sentencing hearing, the parties disputed whether phone calls between Johnson and Craig Venson, the kingpin of drug conspiracy, supported a relevant conduct finding under United States Sentencing Guidelines ("U.S.S.G.") § 1B1.3 based on drug transactions discussed in the calls, and, if so, the quantities and types of drugs for which Johnson was responsible. Johnson also requested a 1:1 crack-to-powder ratio, instead of 100:1.
The district court found by a preponderance of the evidence that Johnson was accountable for 23 grams of crack and calculated a guidelines range of 92 to 115 months. After considering the factors in § 3553(a), the district court sentenced him to 72 months' imprisonment on Count Eleven and 48 months' imprisonment on Count Twelve, to be served concurrently.
A. The Crack/Powder Disparity at Sentencing
Johnson argues that the district court committed a procedural error at resentencing by not expressly responding to his repeated requests for a 1:1 crack-to-powder ratio. We review de novo whether the district court followed proper sentencing procedures. United States v. Coopman, 602 F.3d 814, 817 (7th Cir. 2010).
We agree with Johnson that the district court erred. A sentencing court need not respond expressly to every argument a defendant makes, but it must address " 'all of a defendant's principal arguments that are not so weak as to not merit discussion.' " United States v. Arberry, 612 F.3d 898, 899 (7th Cir. 2010) (quoting United States v. VillegasMiranda, 579 F.3d 798, 801 (7th Cir. 2009)). At resentencing, the district court briefly discussed some of the factors in § 3553(a). But it never responded to Johnson's repeated requests for a reduced ratio. Johnson specifically referenced the district court's authority "to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines," Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 844 (2009), listed policy grounds that have motivated other sentencing courts to apply a reduced crack-to-powder ratio, and asked multiple times for a reduced ratio. His argument for a reduced ratio was one of his primary contentions at resentencing and was certainly not so weak as to not merit discussion. See id. at 843-44; Kimbrough v. United States,552 U.S. 85, 91, 110 (2007); Arberry, 612 F.3d at 899-901. In fact, numerous other judges in the Northern District of Illinois have applied lower ratios. See, e.g., United States v. Edwards, No. 04-cr-1090-5, slip op. at 6, 2009 WL 424464, at *3 (N.D. Ill. Feb. 17, 2009) (Gottschall, J.) (concluding ...