United States of America v.  Charles Aaron Green

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 05-4270 
CHARLES AARON GREEN,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-03-325)
Argued: October 28, 2005
Decided: February 6, 2006
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Widener and Judge Gregory joined.
COUNSEL
ARGUED: Christopher John Romano, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellant. Martin Gregory Bahl, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appel-
lee. ON BRIEF: Allen F. Loucks, United States Attorney, Baltimore,
Maryland, for Appellant. James Wyda, Federal Public Defender,
Greenbelt, Maryland, for Appellee.

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OPINION
NIEMEYER, Circuit Judge:
Charles Aaron Green pleaded guilty to conspiracy to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C. § 846.
Although Green qualified as a career offender under U.S.S.G.
§ 4B1.1, having two prior felony convictions for drug trafficking, the
district court decided not to sentence Green as a career offender
because that status "does not fit Mr. Green."
The government appealed, and we review the district court’s sen-
tence "for unreasonableness." United States v. Booker, 125 S. Ct. 738,
765-66 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). Concluding that Green’s sentence resulted from an incor-
rect application of the Sentencing Guidelines, we vacate the sentence
and remand the case for resentencing under the principles set forth
below. See 18 U.S.C. § 3742(f)(1).
I
On March 18, 2003, an undercover Baltimore County (Maryland)
police detective met with an unnamed drug dealer at a restaurant in
White Marsh, Maryland, to purchase cocaine. The dealer indicated
that his supplier would arrive soon with the drugs. Surveillance offi-
cers witnessed Charles Green arrive and meet briefly with the dealer,
who then returned to the detective with 27 grams of cocaine powder,
which he sold to the detective. The detective arranged to meet with
the dealer again on March 27, 2003 to purchase nine ounces of
cocaine base.
On March 27, 2003, when Green arrived at the designated location,
he was arrested and nine ounces of cocaine base were recovered from
his vehicle. A search of his residence yielded an additional 14 grams
of cocaine base, paraphernalia used to cut and package cocaine base,
and $3500 in cash. After being advised of his Miranda rights, Green
told the officers that he had begun buying cocaine in 2002 in quarter-
kilogram quantities, and had progressed thereafter to buying larger
amounts for resale.
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Green was indicted in two counts, charging him with conspiring to
distribute at least 50 grams of cocaine base, in violation of 21 U.S.C.
§ 846, and possessing at least 50 grams of cocaine base with intent
to distribute it, in violation of 21 U.S.C. § 841. Pursuant to a plea
agreement, Green pleaded guilty to the conspiracy count. The agree-
ment provided that, given the amount of drugs involved, the base
offense level under the Sentencing Guidelines was 34, but that if the
sentencing court found Green to be a career offender under U.S.S.G.
§ 4B1.1(B), the base offense level would be 37 and the criminal his-
tory category would be VI.
At sentencing, the parties agreed that Green qualified as a career
offender: he was 28 years old at the time he committed the offense
in this case; the instant offense is a felony involving controlled sub-
stances; and Green had two prior convictions for controlled substance
offenses as an adult. See U.S.S.G. § 4B1.1. Green’s two prior convic-
tions were Maryland state convictions for possession with intent to
distribute illegal drugs. On October 10, 1995, a Harford County Joint
Narcotics Task Force searched Green’s apartment, finding Green in
a living room chair next to 25 plastic baggies of cocaine and finding
one-and-a-half ounces of cocaine elsewhere in his apartment. Green
was indicted in five counts charging him with possession with intent
to distribute cocaine and related violations. Apparently, he was
released following his arrest, because he was arrested again two
weeks later.
On October 25, 1995, Green was arrested again in Harford County
and charged in four counts for controlled dangerous substances viola-
tions and resisting arrest. This arrest involved Green’s possession of
43 ziplock baggies of cocaine. Apparently Green remained incarcer-
ated after this arrest until his sentencing in January 1997.
On January 6, 1997, Green pleaded guilty to one count of posses-
sion with intent to distribute cocaine on October 10, 1995, and to one
count of possession with intent to distribute controlled dangerous sub-
stances on October 25, 1995. With respect to the October 10 offense,
Green was sentenced to 20 years’ imprisonment, which was sus-
pended, and to 5 years’ probation. With respect to his October 25
offense, Green was sentenced to 12 years’ imprisonment, the service
of which commenced with his second arrest on October 25, 1995.
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On March 29, 2000, Green was paroled and began parole supervi-
sion for the remainder of his 12-year term, to continue until October
24, 2007. At that time, he also began his 5-year probation for his
October 10, 1995 conviction.
At sentencing in this case, Green’s counsel argued that even though
Green qualified for career offender status, that status over-represented
Green’s criminal history, and he asked the court "to simply depart
down to the same level he would be at as if he was not a career
offender." Counsel argued that because Green’s two prior offenses
were close in time and involved relatively small amounts of cocaine,
they constituted an aberration in Green’s history, which contained no
other convictions. Counsel for Green also requested downward depar-
tures for acceptance of responsibility and substantial assistance to the
government.
The government opposed Green’s request not to be sentenced as a
career offender, contending that Green was getting a break even as a
career offender because the government did not provide Green with
notice under 21 U.S.C. § 851 relating to his prior convictions. Had it
done so, Green would have faced a mandatory life sentence. See 21
U.S.C. § 841(b). Counsel also noted that Green’s prior offenses
involved enough cocaine that if Green were sentenced under federal
law, he would have faced a mandatory minimum sentence of 20
years. Finally, the government noted that after his arrest on the federal
charges in 2003, Green was released, over the government’s objec-
tion, to a half-way house, from which he fled, remaining a fugitive for
two months before he was rearrested.
The district court acknowledged that "Mr. Green technically fits
within the [career offender] section," but that section "does not fit Mr.
Green." The court believed that the career offender section was
directed at recidivists who have demonstrated that they will make no
effort to live a law-abiding life and who have no intention of making
an honest living. The court explained that Green was not from this
mold. The court noted first that even though Green’s two prior state
offenses were not formally consolidated, they were close in time, and
the state court "essentially treated them as part of the same offense."
In essence, the court found that the proximity of the offenses in time
demonstrated "a lack of willingness to re-offend at two distinct peri-
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ods of time." The court also noted that after Green was released on
parole in 2000, he made "significant efforts to obtain lawful employ-
ment," but was frustrated in this attempt. The court stated this "real
effort" was uncharacteristic of the typical career offender, who makes
no attempt to lead a law-abiding life. In addition, the court found that
Green did not use guns or violence in his crimes, making him "atypi-
cal of the typical drug, crack cocaine defendant." Finally, the court
noted that Green was still capable of making a contribution to society
once released, based on his young age, education, and family support.
The court thus did not sentence Green as career offender, but rather
as having a criminal history category of III.
In addition, the court granted Green a three-point reduction in his
offense level for acceptance of responsibility and a four-level reduc-
tion in his offense level under U.S.S.G. § 5K1.1 for substantial assis-
tance. As a result, the court concluded that under the Sentencing
Guidelines, Green had a total offense level of 27 with a criminal his-
tory category of III, resulting in a guideline range of 87 to 108
months’ imprisonment. The court sentenced Green to 87 months’
imprisonment.
From the judgment entered, the government filed this appeal, con-
tending that the sentence was unreasonable.
II
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme
Court held that an application of the Sentencing Guidelines in which
the district court enhanced the defendant’s sentence based on facts it
found during the sentencing proceeding violated the Sixth Amend-
ment. Concluding that the mandatory application of the Sentencing
Guidelines is what offended the Sixth Amendment jury right, the
Court observed:
If the Guidelines as currently written could be read as
merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to
differing sets of facts, their use would not implicate the
Sixth Amendment. . . . Indeed, everyone agrees that the con-
stitutional issues presented by these cases would have been
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avoided entirely if Congress had omitted from the [Sentenc-
ing Reform Act] the provisions that make the Guidelines
binding on district judges . . . . The Guidelines as written,
however, are not advisory; they are mandatory and binding
on all judges.
Booker, 125 S. Ct. at 750. Based on its conclusion that Congress
would have wished to continue the Guidelines system even if the
Guidelines were not mandatory, the Court struck down 18 U.S.C.
§§ 3553(b)(1) and 3742(e), which had made the Sentencing Guide-
lines mandatory. As so modified, the court concluded that the Guide-
lines are "effectively advisory," id. at 757, and that appellate courts
must now review sentences "for unreasonableness," id. at 765.
With §§ 3553(b)(1) and 3742(e) now excised from the Sentencing
Reform Act of 1984 and our review of sentences directed to unrea-
sonableness, the questions arise in this case as to (1) the extent to
which the district court must be guided by the Sentencing Guidelines
and (2) the meaning of an appellate review for unreasonableness. We
address these questions seriatim.
A
Even though it is now a given that the Sentencing Guidelines are
advisory, district courts are not left with unguided and unbounded
sentencing discretion. Booker provides that they "must consult those
Guidelines and take them into account when sentencing." Id. at 767
(citing 18 U.S.C. § 3553(a)(4), (5)). In addition, district courts still
must follow the commands of 18 U.S.C. § 3553 (with subsection
(b)(1) excised), as informed by the congressional policies expressed
in 28 U.S.C. §§ 991 and 994.
When these statutory requirements are brought together, they may
be summarized as four overarching directives in sentencing, some
mandatory and some advisory. First, the district court is commanded
to fulfill the congressionally established objectives for sentencing:
promoting respect for the law; providing just punishment for the
offense; affording adequate deterrence; protecting the public from fur-
ther criminal activity of the defendant; providing the defendant train-
ing, medical care, and correctional treatment; and providing
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restitution to victims. See 18 U.S.C. §§ 3551(a), 3553(a)(2),
3553(a)(7); 28 U.S.C. §§ 991(b)(1), 994(c), 994(f), 994(g).
Second, the district court is commanded to consider the kinds of
sentences and sentencing ranges provided by the Sentencing Guide-
lines, as well as the pertinent policy statements issued by the Sentenc-
ing Commission. See 18 U.S.C. §§ 3553(a)(4), 3553(a)(5); 28 U.S.C.
§§ 994(a)(1), 994(a)(2).
Third, the court is limited by specific statutory requirements. For
example, it is commanded to impose a sentence that specifically
accounts for recidivism. It is prohibited from imposing a sentence that
is informed or influenced by the race, sex, national original, creed,
and socioeconomic status of the defendant. And it is prohibited from
imposing any sentence that represents an "unwarranted sentencing
disparity." See 18 U.S.C. § 3553(a)(6); 28 U.S.C. § 991(b)(1)(B),
994(d), 994(f), 994(h), and 994(i).
Fourth, the court must make factual findings, as appropriate or nec-
essary to carry out its sentencing function, and in every case give the
reasons for the sentence imposed, as well as reasons for particular
deviations from the Sentencing Guidelines. See 18 U.S.C. § 3553(c).
In carrying out these directives during sentencing, however, district
courts are bound to consider the statutory sources themselves, not our
summarizations, in tailoring sentences to the circumstances. Thus, to
sentence a defendant, district courts must (1) properly calculate the
sentence range recommended by the Sentencing Guidelines; (2) deter-
mine whether a sentence within that range and within statutory limits*
serves the factors set forth in § 3553(a) and, if not, select a sentence
that does serve those factors; (3) implement mandatory statutory limi-
tations; and (4) articulate the reasons for selecting the particular sen-
tence, especially explaining why a sentence outside of the Sentencing
Guideline range better serves the relevant sentencing purposes set
forth in § 3553(a). See 18 U.S.C. § 3551(a). As we summarized the
*The statutory limits for both maximum and minimum sentences must
be honored except as statute otherwise authorizes. See 28 U.S.C.
§ 3553(e); Melendez v. United States, 518 U.S. 120, 125-30 (1996);
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).
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process in United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005):
[A] district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines. Then, the court shall consider that range as well
as other relevant factors set forth in the guidelines and those
factors set forth in § 3553(a) before imposing the sentence.
If the court imposes a sentence outside the guideline range,
it should explain its reason for doing so.
We add only that the district court’s reasons for not applying the
properly calculated Guideline range must be based on the factors
listed in § 3553(a).
B
Although the Supreme Court struck down 18 U.S.C. § 3742(e),
which set forth standards for appellate review of a sentence, the Court
inferred from "related statutory language, the structure of the statute,
and sound administration of justice" that appellate courts must review
a sentence "for unreasonableness." Booker, 125 S. Ct. at 765. The
Court added that the unreasonableness review "has regard" for the
sentencing "factors" articulated in § 3553(a) and the reasons for the
imposition of a particular sentence, as required by § 3553(c). In other
words, even though we now review for unreasonableness, a standard
which is intended to accommodate a range of discretion, reasonable-
ness is not measured simply by whether the sentence falls within the
statutory range, but by whether the sentence was guided by the Sen-
tencing Guidelines and by the provisions of § 3553(a). Because sen-
tencing involves applications of binding law and considerations of
advisory guidelines, factual findings, and judgments made to give
effect to congressional policies, the review of such sentencing is com-
plex and nuanced.
On a discrete matter where the question is purely legal, we review
the matter de novo, and where the question is about a finding of fact,
for clear error. An error of law or fact can render a sentence unreason-
able. See generally United States v. Hummer, 916 F.2d 186, 192 (4th
Cir. 1990).
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When reviewing the district court’s consideration of the Sentencing
Guidelines, we are required to make a difficult judgment, determining
whether the district court respected congressional and Sentencing
Commission judgments and policies and, at the same time, measuring
any variations from a recommended Guideline range against the fac-
tors stated in § 3553(a) and 28 U.S.C. §§ 991(a) and 994. In this area,
the district court is given some latitude to tailor a particular sentence
to the circumstances without discarding the overarching guidelines
and policies. But we agree with the Seventh Circuit, which has con-
cluded that a sentence imposed "within the properly calculated Guide-
lines range . . . is presumptively reasonable." United States v.
Newsom, 428 F.3d 685, 687 (7th Cir. 2005).
A sentence falling outside of the properly calculated Guidelines
range is not ipso facto unreasonable. But if that sentence is based on
an error in construing or applying the Guidelines, it will be found
unreasonable and vacated. See 18 U.S.C. § 3742(f)(1). The same is
true if the sentence is imposed outside the Guideline range and the
district court provides an inadequate statement of reasons or relies on
improper factors in departing from the Guidelines’ recommendation.
See id. § 3742(f)(2).
Finally, in determining whether a sentence outside of the Guide-
lines range serves the purpose of sentencing established by Congress
in §§ 3553(a), 991(a), and 994, we defer to the district court’s sen-
tencing judgments, correcting only for an abuse of discretion.
At bottom, after all proper considerations have been afforded, the
overarching standard of review for unreasonableness will not depend
on whether we agree with the particular sentence selected, see New-
som, 428 F.3d at 686-87, but whether the sentence was selected pur-
suant to a reasoned process in accordance with law, in which the court
did not give excessive weight to any relevant factor, and which
effected a fair and just result in light of the relevant facts and law.
With these principles for sentencing and our review of sentences
in hand, we now turn to the sentence imposed in this case.
III
In sentencing Green, the district court correctly observed that
Green qualified as a career offender under U.S.S.G. § 4B1.1, albeit
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"technically," according to the district court. The court, however,
chose not to sentence Green as a career offender, stating, "[i]n my
view, the practical demonstration of a career offender does not fit Mr.
Green." The court explained:
The career offender section is intended to punish more
harshly a persistent criminal. A career offender is a person
who has demonstrated that he is . . . a person who has no
intention of making an honest living, makes no effort to
make an honest living, but who will return to a life of crime
to support himself and make money every time he is
released from incarceration. . . . The career offender section
recognizes that a disproportionate number of crimes are
committed by individuals who are career offenders, and
therefore, the increased sentence takes these specially dan-
gerous people off the street.
In concluding that this understanding of a career offender "does not
fit Mr. Green," the court found that career offender status over-
represents Green’s criminal history and the likelihood that he will
commit other crimes. See U.S.S.G. § 4A1.3(b).
The government contends that the district court’s refusal to sen-
tence Green as a career offender amounts to an incorrect application
of the Sentencing Guidelines. It maintains that the district court erred
as a matter of law in considering the prior offenses as a single offense,
in reducing Green’s criminal history to a category III on the ground
that that category "accurately reflects [Green’s] prior infractions," in
ignoring Fourth Circuit cases that have rejected claims of over-
representation in cases whose defendants qualify as career offenders
for having two felony drug convictions. See United States v. Stockton,
349 F.3d 755, 764-65 (4th Cir. 2003) (noting that where a defendant’s
criminal history reflects recidivism in controlled substance offenses,
an over-representation departure is almost never appropriate); United
States v. Pearce, 191 F.3d 488, 498 (4th Cir. 1999) (holding that two
prior serious drug felony convictions, as well as a parole violation,
cannot sustain a claim that the record overstates the seriousness of
past conduct or the likelihood of future criminal conduct); United
States v. Brown, 23 F.3d 839, 840-42 (4th Cir. 1999) (holding that a
departure for over-representation is not justified by the fact that prior
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drug conviction involved a small quantity of drugs); United States v.
Adkins, 937 F.2d 947, 952 (4th Cir. 1991) (noting that Congress
deemed two types of recidivism, including controlled substances, to
be "especially dangerous").
In concluding that Green should not be sentenced as a career
offender even though he "technically" qualified for career offender
status, the district court gave four reasons. First, the court found that
Green’s prior two offenses for drug trafficking were close together in
time and should essentially be treated as Green’s "first strike" under
the three-strikes structure of the career offender provisions. As the
court explained, "Even though [the two cases] were not formally con-
solidated, the Circuit Court for Harford County essentially treated
them as part of the same offense. They were disposed of as a piece,
as it were, and the singular sentence was imposed on both cases." Sec-
ond, the court noted that Green had made "significant efforts to obtain
lawful employment using the education he received" and that those
efforts are "a harbinger that [Green] will, in the future, make other
efforts to stay on the straight and narrow." Third, the court found that
Green did not fit the "mold" of a career offender, who is often violent.
In this case, "there is no evidence of possession of firearms by him
or violence, so that that makes him atypical of the typical drug, crack
cocaine defendant." And, fourth, the court observed that Green, "be-
cause of his young age and his education and his family’s support, is
capable of making a significant contribution to society once he is
released."
With respect to our review of the district court’s sentence, the gov-
ernment directs us to that part of the district court’s sentencing pro-
cess in which the court considered the Sentencing Guidelines,
alleging that the district court committed legal error in applying
U.S.S.G. § 4A1.3(b) and in concluding that career offender status
over-represents Green’s criminal history. Thus, focusing only on the
district court’s consideration of the Sentencing Guidelines and not on
whether a properly calculated Guideline sentence would be unreason-
able when measured against § 3553(a) factors, we conclude that the
district court erred as a matter of law. To explain this, we address
each of the district court’s reasons for concluding that career offender
status should not apply for purposes of calculating a proper Guideline
range.
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With respect to the district court’s treating Green’s prior two drug
convictions as one, the court was impressed by the fact that two
offenses occurred at nearly the same time (two weeks apart) and that
the Circuit Court for Harford County sentenced Green on the same
day for both offenses. The offenses, however, involved two separate
arrests. Moreover, there is no indication that they were factually
related except insofar as the violations were similar in kind. With
respect to the first offense on October 10, 1995, Green was found
with 25 baggies of cocaine as well as an additional 1.8 ounces. After
he was arrested and released for that offense, Green was again
arrested on October 25, 1995, two weeks later, this time with 43 bag-
gies of cocaine. The Circuit Court for Harford County never entered
an order consolidating the two cases, and while the court sentenced
Green on the same date in the two cases, the court imposed separate
sentences.
Section 4A1.2(a)(2) provides that for determining career offender
status, "prior sentences imposed in unrelated cases are to be counted
separately." Application Note 3 explains that cases are not "related"
if they were for offenses that were separated by an intervening arrest
— i.e., "the defendant [was] arrested for the first offense prior to com-
mitting the second offense." U.S.S.G. § 4A1.2, comment. (n.3); cf.
United States v. Letterlough, 63 F.3d 332 (4th Cir. 1995) (holding that
sales made to the defendant by the same police officer approximately
90 minutes apart did not arise from a continuous course of criminal
conduct and constituted two separate and distinct offenses); United
States v. Allen, 50 F.3d 294, 295 (4th Cir. 1995) (holding that in the
absence of a formal order of consolidation, factually unrelated
offenses for which the defendant receives separate, sequential sen-
tences, made to run concurrently, in one sentence proceeding, are not
"related" for purposes of calculating the defendant’s criminal history
score). We thus conclude that the district court erred as a matter of
law in considering Green’s two prior offenses as one for purposes of
applying U.S.S.G. § 4B1.1.
With respect to the court’s reliance on Green’s efforts to obtain
lawful employment to conclude that Green should not be sentenced
as a career offender, the court again incorrectly applied the Guide-
lines. First, efforts to seek employment are not relevant for determin-
ing whether a defendant is to be sentenced as a career offender. While
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that circumstance might support generally a departure from the Sen-
tencing Guidelines, it may be relied upon then only if the factor is
present to an exceptional degree. See U.S.S.G. Ch. 5 Pt. H, intro.
comment; see also U.S.S.G. § 5H1.5 (providing that employment
record is not ordinarily relevant in determining whether to depart).
Moreover, the facts in this case are not exceptional. Green was
released from jail in 2000, and within two years, according to his own
concession, he was dealing in quarter-kilogram quantities of cocaine.
A year later, he was arrested for the present offense. Thus, there was
a three-year period between prison sentences during which Green
made efforts to find employment. The record indicates, however, that
he actually obtained four separate jobs but could not hold them. This
is not a case where he was frustrated in obtaining a job; rather, he was
unable to hold a job, surely contributed to by his illegal side business.
With respect to the court’s conclusion that Green was not a typical
crack cocaine dealer because he did not possess firearms or use vio-
lence, the court simply expressed disagreement with Congress’ deci-
sion to base career offender status on two prior drug offenses, without
any need to involve firearms or violence. Congress clearly stated that
defendants who have "previously been convicted of two or more prior
felonies involving controlled substances be sentenced at or near the
maximum term authorized." See 28 U.S.C. § 994(h). In doing so, it
made the policy determination that recidivism for drug dealing, with-
out more, is especially dangerous. See United States v. Adkins, 937
F.2d 947, 952 (4th Cir. 1991). The district court was not free to ignore
that policy judgment and substitute one that would require, in addi-
tion, firearms and violence.
Finally, the district court noted that Green was young and educated
and had family support, concluding that therefore Green was capable
of yet making significant contributions to society. As noted above, the
court did not, however, conclude that these factors existed to any
exceptional degree. At the time of sentencing, Green was 30 years
old, and for most of the previous ten years had either been in prison
or was involved in drug dealing. With presumably the same family
support, Green chose to begin dealing in drugs at least as early as
1995, almost immediately after he dropped out of college. While it is
impossible to conclude that Green, or anyone else, would not be "ca-
pable" of making a significant contribution to society in the future,
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nothing in this record supports a conclusion that Green’s chances of
contributing to society are exceptionally greater than others who will
have served a substantial prison sentence, as Green will have.
Underlying the district court’s opinion of Green was an overall per-
ception that Green’s two convictions in 1995 were small-time street
convictions that amounted to an aberration in an otherwise crime-free
history. But the record does not support this perception. The record
shows that since dropping out of college at the end of 1994, Green
has been involved in drug dealing almost all of the time he was not
in prison. In the spring of 1995, he was arrested for drug trafficking,
a case that was placed on the stet docket (indeterminately stayed) in
State court on May 16, 1995. He was arrested again on October 10,
1995, for dealing in substantial amounts of cocaine, and after his
release was arrested only two weeks later, on October 25, 1995, for
dealing again in substantial amounts of cocaine. Following the second
arrest, Green remained in prison for almost five years, until his
release in 2000 on parole. At that time, Green also began a five-year
period of probation for his October 10 offense. Yet, within two years
of his release and while still on parole and on probation, Green began
distributing quarter-kilogram quantities of cocaine, and those
amounts increased thereafter until his federal arrest in 2003. At the
time of his arrest in 2003, Green was found with nine ounces of crack
cocaine, an amount sufficient to subject him to a mandatory life sen-
tence if the U.S. Attorney elected to charge Green as an offender with
two prior drug convictions under 21 U.S.C. § 841(b). Indeed, both
offenses in 1995 were also serious ones, for which Green would have
received many years of incarceration under the federal guidelines. In
short, for only a two-year period during the last ten years is there no
direct evidence that Green was dealing in cocaine and crack cocaine
in substantial amounts or serving a sentence for dealing in drugs. To
the extent that the district court perceived Green’s two 1995 convic-
tions as aberrational, it clearly erred.
Because Green’s sentence was imposed as the result of an incorrect
application of § 4B1.1 of the Sentencing Guidelines, we vacate the
sentence as unreasonable and remand the case for further sentencing,
consistent with this opinion. See 18 U.S.C. § 3742(f)(1).
VACATED AND REMANDED
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