Argued Oct. 31, 2013.
Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Daniel T. Hansmeier, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
In 2011, Kaliph Whitlow pled guilty to two counts of distribution of five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), crimes he committed before the August 3, 2010 effective date of the Fair Sentencing Act of 2010. See Pub.L. 111-220, 124 Stat. 2372 (2010) (hereafter the " Fair Sentencing Act" or the " Act" ). In October 2011, the district court sentenced him to 262 months' imprisonment, rejecting his request that he be sentenced under the Act. After the Supreme Court issued its opinion in Dorsey v. United States,
__ U.S. __, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), we vacated Whitlow's sentence and remanded the case for resentencing in accordance with Dorsey and the Act. R. 16. The district court subsequently sentenced Whitlow to a term of 170 months' imprisonment, and Whitlow now appeals his new sentence. The government concedes that the district court may have misapprehended its sentencing discretion in one respect. We vacate Whitlow's sentence and remand for the limited purpose of giving the district court an opportunity to exercise its discretion on one final issue.
On June 9, 2010, Whitlow was charged with two counts of possession with intent to distribute five grams or more of crack cocaine. The government subsequently filed a notice that it intended to seek enhanced penalties based on a number of prior felony convictions. See 21 U.S.C. § 851. Whitlow pled guilty in April 2011, and the court conducted a sentencing hearing in October of that year. Although Whitlow requested that the court sentence him under the more lenient standards set forth in the Fair Sentencing Act of 2010, the court followed then-current circuit law and declined to apply the Act. Instead, the court calculated the guidelines range for Whitlow as 262 to 327 months' imprisonment. After considering the section 3553(a) factors and Whitlow's arguments in mitigation, the court sentenced Whitlow to 262 months in prison, to be followed by an eight-year term of supervised release.
Whitlow filed a timely notice of appeal. Shortly thereafter, the Supreme Court granted certiorari in Dorsey, a case that would decide whether courts should apply the Act to cases like Whitlow's, where the crime was committed prior to the effective date of the Act but the sentencing occurred after the effective date. In light of this development, Whitlow moved in this court for leave to file a statement of position in lieu of an opening brief. R. 9. In that motion, Whitlow stated that he " will raise only one issue on appeal: Whether the Fair Sentencing Act applies to individuals who were sentenced after its enactment?" R. 9, at 2. We granted leave for Whitlow to file his " Statement of Position" (" Statement" ) in lieu of an opening brief and allowed the government to respond to the Statement. R. 10. In the Statement, Whitlow reiterated that he " had only one nonfrivolous issue to raise on appeal: Whether the Fair Sentencing Act applies to individuals who were sentenced after its enactment?" R. 11, at 3. Acknowledging that circuit law was settled against this position, Whitlow nonetheless sought to preserve the argument for review in the Supreme Court in light of the grant of certiorari in Dorsey. Whitlow raised no other objections to his conviction or sentence and suggested that the court hold the appeal in abeyance pending the outcome of Dorsey. The government agreed that then-current circuit law foreclosed Whitlow's sole issue on appeal and asked this court to hold consideration of the appeal until the Supreme Court ruled in Dorsey. R. 13. We then suspended proceedings
in the appeal pending the outcome of Dorsey and a related case. R. 14.
After the Supreme Court ruled in Dorsey, Whitlow and the government filed a " Joint Statement of Position in Light of the Supreme Court's Holding in Dorsey. " R. 15 (hereafter " Joint Statement" ). In the Joint Statement, the parties agreed that, under Dorsey, the district court procedurally erred at Whitlow's sentencing by not applying the Act, and that the error was not harmless. In particular, the parties asserted that the sentence was above the low end of the correct guidelines range and the court had not indicated that it would impose the same sentence if the Act applied. The court had also commented that, " It would deprecate the seriousness of your criminal history to vary from the career offender advisory guidelines." Joint Statement, at 4 (quoting R. 38, Tr. at 33). The parties asked that we " vacate the defendant's sentence and remand this case for resentencing." Joint Statement, at 1. We then ordered that Whitlow's " sentence is vacated and the case is remanded for resentencing in accordance with Dorsey and the Fair Sentencing Act." R. 16.
On remand, the probation office re-calculated Whitlow's sentencing guidelines range under the Act, and issued an addendum to the Presentence Investigation Report (" PSR" ). The new advisory guidelines range was 188 to 235 months of imprisonment, and the PSR continued to assert that Whitlow qualified to be sentenced as a career offender. Neither party objected to the new PSR, but Whitlow filed a Sentencing Memorandum, seeking a sentence of 144 months' imprisonment and raising four arguments in support of a below-guidelines sentence. In particular, Whitlow argued that (1) a twelve-year term would be twice as long as any prior sentence Whitlow had received in state court, representing a more appropriate incremental punishment than a guidelines-range sentence; (2) the career offender guideline is defective because it is not based on empirical studies, lacks a general deterrent effect on street-level drug dealers such as Whitlow, and has a disproportionate adverse effect on impoverished minorities; (3) a twelve-year sentence would account for Whitlow's post-sentencing rehabilitation efforts, including obtaining a GED certificate and working steadily in prison; and (4) some discount to his ...