United States of America v. Michael Sanders

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 17, 2009
Decided November 23, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1454
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL SANDERS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 08 CR 329‐3
Amy J. St. Eve,
Judge.
O R D E R
Michael Sanders pleaded guilty to crack offenses and was sentenced to 60 months’
imprisonment, below the recommended guidelines range of 70 to 87 months and, due to the
application of the safety‐valve provisions, well below the 10‐year statutory minimum. See
18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. On appeal he argues that he should be resentenced
using the guideline for powder, not crack, cocaine because the sentencing disparity between
crack and powder cocaine offenses violates equal protection. He does so largely to preserve
the issue for further review, because, as he acknowledges, the law in this circuit is squarely
against him.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1454 Page 2
The underlying facts are straightforward. In November 2008 Sanders pleaded guilty
to conspiring to distribute more than 50 grams of crack and two counts of possessing with
intent to distribute more than 50 grams of crack. See 21 U.S.C. § 846, 841(a)(1). At
sentencing the district court calculated an offense level of 27 based on an original level of 32,
pursuant to sentencing guideline § 2D1.1(c) and the quantity of crack involved, minus two
points for meeting the safety valve, and minus three points for acceptance of responsibility
and timely entering a plea. With no prior convictions and a criminal history category of I,
the final recommended guidelines range was 70 to 87 months’ imprisonment.
In a sentencing memorandum and at sentencing, Sanders objected to the disparity
between recommended terms of imprisonment for similar quantities of crack and powder
cocaine. The court rejected Sanders’s argument in large part because application of the
safety valve brought his recommended sentence under the mandatory ten years’ minimum.
But the court imposed a below‐guidelines sentence of 60 months to acknowledge Sanders’s
community work and the role that his own addiction to crack played in his crime.
On appeal Sanders argues that the disparity between recommended terms of
imprisonment for crack and powder cocaine offenses violates the equal protection
component of the fifth amendment’s due process clause. (At oral argument Sanders’s
counsel presented no argument but stood on the briefs.) Sanders concedes that Congress
had reasons for the disparity when it enacted the mandatory minimums in 1986 and that
this court has since upheld the disparity. See, e.g., United States v. Trice, 484 F.3d 470, 476
(7th Cir. 2007). Sanders contends, however, that this court’s decisions need to be
reevaluated in light of Kimbrough v. United States, 128 S.Ct. 558 (2007), in which the Supreme
Court describes the disparate treatment of crack and powder cocaine in the guidelines as
“generally unwarranted” and based on now‐discredited reasons. Id. at 568. Sanders argues
that Kimbrough confirms that the sentencing disparity has a discriminatory effect and is no
longer rational.
We do not read Kimbrough so broadly. In that decision the Court held simply that a
district court may, in its discretion, disagree with the advisory crack‐powder ratio selected
by the Sentencing Commission. 128 S.Ct. at 575‐76. See United States v. House, 551 F.3d 694,
700‐01 (7th Cir. 2008). Nothing in Kimbrough requires this court to invalidate sentences for
crack offenses on equal protection grounds because similar offenses for powder cocaine
would result in lesser sentences. See United States v. Huffstatler, 571 F.3d 620, 623 (7th Cir.
2009).
AFFIRMED

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