
    UNITED STATES of America, Appellant v. Marc RICKS, Appellee.
    No. 05-4833.
    United States Court of Appeals, Third Circuit.
    Oct. 25, 2007.
    David E. Troyer, Ara B. Gershengorn, Office of United States Attorney, Philadelphia, PA, for Appellant.
    
      David L. McColgin, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellee.
    Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, ■ FISHER, CHAGARES, JORDAN and HARDIMAN, Circuit Judges.
   ORDER SUR PETITION FOR REHEARING EN BANC SECOND AMENDED

JULIO M. FUENTES, Circuit Judge.

The Petition for Rehearing filed by the Appellee in the above-entitled matter, having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the Petition for Rehearing by the panel and the Court en banc, is hereby DENIED. Judge Ambro files a separate dissent.

AMBRO, Circuit Judge,

Statement Sur Denial of the Petition for Rehearing.

In this case the panel has vacated the sentences of two brothers, Michael and Marc Ricks, because the District Court, in exercising its discretion to set their sentences, disagreed with the advisory Sentencing Guidelines regarding the crack/powder cocaine differential. Because I believe that recent Supreme Court precedent and our Court’s precedent puts that discretion with the District Court, I would grant rehearing en banc.

I.

The Guidelines incorporate the 100:1 ratio between the threshold quantities of powder cocaine and crack cocaine that trigger certain mandatory minimum punishments for distribution of these drugs. United States v. Ricks, 494 F.3d 394. This policy has many critics, most prominently the U.S. Sentencing Commission. Id. at 396-98. But Congress has yet to alter the mandatory-minimum provisions or the Guidelines based on them to alleviate the disparity that the panel describes as “unjust.” Id. at 403.

In sentencing Michael and Marc Ricks, the District Court categorically rejected the Guidelines’ 100:1 ratio. The Court instead used a 20:1 ratio in crafting their sentences. Id. at 395-96. But the panel has vacated the sentences for failing to give “ ‘meaningful consideration’ ” to the Guidelines, id. at 398 (quoting United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006)), contrary to 18 U.S.C. § 3553(a)(4), which makes the Guidelines’ sentencing-range calculation a factor in sentencing. Marc Ricks then petitioned our Court for rehearing en banc.

While the panel forbids “categorical rejection” of the Guidelines 100:1 policy, Ricks, 494 F.3d at 403, it would allow case-by-case consideration of the policy’s merits in light of individualized factors. Id. In reaching this-result, the panel relies on Rita v. United States, — U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and United States v. Gunter, 462 F.3d 237 (3d Cir.2006).

II.

Gunter outlined a three-step procedure for district courts to follow in sentencing, as described by the panel’s opinion in this case. Ricks, 494 F.3d at 398; Gunter, 462 F.3d at 247. At step one of Gunter’s procedure, district courts are to calculate the Guidelines’ sentencing range. 462 F.3d at 247. Step two involves addressing motions regarding departures from the Guidelines. Id. At step three, district courts are to “exercise their discretion by considering the relevant § 3553(a) factors,” with the understanding that this may result in a sentence outside the Guidelines. Id. In this case, the panel holds that the District Court exercised an impermissible degree of discretion, even if that discretion was exercised at step three. But the holding of Gunter compels the opposite conclusion.

Gunter stated in its final paragraph that “we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.” Id. at 249. The panel interprets that language as consonant with its holding in this case, Ricks, 494 F.3d at 399-400, regardless whether the District Court’s rejection of the 100:1 ratio occurred at step one or step three of Gunter’s procedure. Id. at 398 n. 9. In my view, however, the parties’ dispute over whether the District Court calculated the Guidelines range first (at step one) before applying a 20:1 ratio (at step three) matters a great deal.

The quote from Gunter refers to the Guidelines’ continued role at step one. Gunter cited with approval the decision of the First Circuit Court of Appeals in United States v. Pho, 433 F.3d 53 (1st Cir.2006), and the Fourth Circuit Court of Appeals in United States v. Euro, 440 F.3d 625 (4th Cir.2006), both of which had reversed sentences in which the district court used a 20:1 ratio to determine the sentencing range. But that rejection of the 100:1 ratio had occurred in the initial calculation of the Guidelines range. Thus, the district courts in those cases never had the benefit of considering a correctly calculated Guidelines range, a circumstance that will almost always warrant a remand.

In Gunter, an identical situation arose, as the District Court at sentencing stated:

[Djoesn’t a sentencing Court have to respect the congressional intent with respect to sentencing for crack versus powder cocaine, and to take a position that does not recognize what Congress clearly intended, wouldn’t that be a legislative act by a Court as opposed to a judicial act? I don’t think the provisions that Congress has put up there for a Court to decide to consider suggest that the Court can second guess Congress’ well spelled out intent with respect to sentencing. I don’t think I can call it sentencing — I don’t think I can say that there should not be a sentencing disparity.

462 F.3d at 239. In essence, the District Court based its sentence on the reasoning that it had no power to reject the Guidelines’ 100:1 ratio on a categorical basis. We clarified that the District Court was correct that it lacked the power to reject the Guidelines in calculating the sentencing range at step one, but was wrong in believing it lacked that power also at step three in setting the actual sentence. “[A] sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential ... as simply advisory at step three.” Id. at 249.

The intent of Gunter was to reinforce district courts’ discretion. The Guidelines’ sentencing-range calculation is one factor that district courts must consider under § 3553(a), but under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines’ calculation — including the 100:1 ratio — is advisory. I submit, therefore, that Ricks misreads Gunter and thus fails to follow its holding.

III.

I also believe that Ricks runs afoul of recent Supreme Court precedent.

A.

The panel’s opinion conflicts with the Supreme Court’s remedial opinion in Booker, which makes the Guidelines “effectively advisory” and requires district courts to consider all the factors of § 3553(a). Id. at 245, 125 S.Ct. 738. In Ricks, the District Court considered the Guidelines’ sentencing range — which applied a 100:1 ratio — and rejected that range for what it considered to be a more reasonable punishment. I cannot see why “meaningful consideration” cannot lead to carefully considered rejection of an advisory policy.

It is no answer to say that sentencing judges cannot reject the policy decision of Congress. The whole Guidelines manual represents a policy decision of Congress. In order to remedy a constitutional defect, Booker excised the provisions that previously made the Guidelines mandatory. This made advisory Congress’s policy decisions as expressed in the Guidelines. Put simply, they do not have to be followed at step three.

It would also be no answer to say that a district court may consider at step three only those things particular to the defendant being sentenced when deciding whether to vary from the Guidelines range. This essentially is the familiar “heartland” concept, see Rita, 127 S.Ct. at 2461; USSG § 5K2.0(a)(2), wherein a sentencing court can depart at Gunter’s step two from the Guidelines’ sentencing-range calculation made at step one only if it finds that the Guidelines themselves inadequately account for the circumstances in a particular case. Gunter, 462 F.3d at 247. Importantly, the availability of departures was not enough to save the Guidelines from unconstitutionality. See Booker, 543 U.S. at 234-35, 125 S.Ct. 738. There is thus no reason to think that a similar standard applied to step-three variances would leave a sentencing scheme that passes constitutional muster either.

B.

In Rita, Justice Breyer’s majority opinion described Booker reasonableness review as “merely ask[ing] whether the trial court abused its discretion.” 127 S.Ct. at 2465; see also id. at 2471 (Stevens, J., concurring) (“Booker restored the abuse-of-discretion standard....”). Justice Breyer described the Guidelines as, “insofar as practicable, reflecting] a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Id. (majority opinion) at 2464-65 (emphases added). In approving the use of an appellate presumption of reasonableness, he wrote that when “both the sentencing judge and the Sentencing Commission ... reach[ ] the same conclusion as to the proper sentence ... [,][t]hat double determination significantly increases the likelihood that the sentence is a reasonable one.” Id. at 2463 (emphases in original).

In our case, the trial judge did not reach the same conclusion as the Guidelines (instead reaching the same conclusion as the Commission suggested), thus making it less likely that the Guidelines’ sentencing range is reasonable. And the Supreme Court specifically acknowledged that it is valid for a district court generally to disagree with the Guidelines. See id. at 2468 (noting as valid the argument that “a party contests the Guidelines sentence generally under § 3553(a) — that is[,] argues that the Guidelines reflect an unsound judgment”); id. at 2465 (noting that the judge may hear argument that “the Guidelines sentence itself fails properly to reflect the § 3553(a) considerations”); id. at 2464 (recognizing the “differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives”). As a result, I believe Ricks not only runs counter to Gunter but also strays from the directives of the Supreme Court in this admittedly volatile area of sentencing.

* * * * *

With this context, I therefore ask: If advisory Guidelines can reflect an unsound judgment that “overrepresents the relative harm of crack as compared to powder cocaine”, Ricks, 494 F.3d at 400, then why can’t a sentencing judge “categorically” reject them at step three as unreasonable? Given that advisory Guidelines must result in a large degree of discretion for district courts, how are they to be advisory if it is reversible error to disagree with them at step three in imposing an otherwise reasonable sentence?

I close with this comment. My colleagues on the Ricks panel are trying admirably to work a balance among conflicting interpretations of statements in Supreme Court sentencing cases. Most courts of appeals support their position. Besides Gunter, only the Court of Appeals for the D.C. Circuit supports my position. See United States v. Pickett, 475 F.3d 1347 (D.C.Cir.2007). The Supreme Court is on the cusp of deciding the very issue Ricks presents — the effect of the crack/powder cocaine differential in sentencing under a now-advisory scheme. See United States v. Kimbrough, 174 Fed.Appx. 798 (4th Cir.2006) (per curiam), cert. granted, — U.S. -, 127 S.Ct. 2933, 168 L.Ed.2d 261 (2007). While I write separately here to express my view on the step-three discretion that Gunter affords — and the necessity of that level of discretion under Booker and Rita — I would vote to remand without opinion now with instructions to consider Kimbrough when it is issued.

For these reasons I respectfully dissent from the denial of the petition for rehearing en banc. 
      
      . In Bum, the sentencing range based on a 20:1 ratio fell entirely below the statutory mínimum, so the District Court sentenced at the statutory minimum. 440 F.3d at 631 n. 6.
     
      
      . In its brief in another sentencing case pending before the Supreme Court, argued the same day as Kimbrough, the Government writes that "a variance may be justified either by atypical facts, by persuasive policy reasons for concluding that the Guidelines do not appropriately reflect Section 3553(a)'s sentencing factors, or by a combination of facts and policy considerations.” Brief for the United States at 35, Gall v. United States, No. 06-7949 (U.S. filed Nov. 27, 2006). The Government also concedes that, under the Supreme Court's sentencing decisions, "a court’s ability to vary based solely on policy disagreements with the Guidelines avoids Sixth Amendment difficulties....” Id. at 36 (emphasis added). So the Government does not advocate as strong a restriction on district courts' discretion as the panel has adopted in Ricks.
      
      The Government does argue that district courts may not disagree with the 100:1 crack/powder cocaine differential because that ratio comes directly from Congress. See Brief for the United States at 29, Kimbrough v. United States, No. 06-6330 (U.S. filed Sept. 7, 2006) (arguing that district courts may "sentence based on policy considerations that differ from those reflected in the Guidelines” but may not disregard "direct sentencing requirements” from Congress) (emphasis in original). But if district courts must have discretion to sentence based on policy disagreements in order to comply with the Sixth Amendment, then restrictions on that discretion are unconstitutional whether they come from Congress or the Sentencing Commission. See Booker, 543 U.S. at 237-39, 125 S.Ct. 738 (stating that "the fact that the Guidelines were promulgated by the Sentencing Commission, rather than Congress, lacks constitutional significance” and applying the constitutional reasoning of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to the Guidelines).
      The bottom line for our Court today, as we await the Supreme Court’s decisions in Gall and Kimbrough, is that even the Government would not go so far as the panel does here in limiting district courts' discretion to disagree with policies contained in the Guidelines.
     