United States of America v. Carlton Embry

After examining the briefs and the record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 10, 2009*
Decided August 10, 2009
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-1246
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLTON EMBRY,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District
of Wisconsin
No. 07-CR-058-BBC-1
Barbara B. Crabb,
Chief Judge.
O R D E R
Carlton Embry pleaded guilty to possession with intent to distribute five grams or more
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). At his first sentencing hearing, the district
court imposed a 265-month sentence under the crack cocaine guideline, U.S.S.G. § 2D1.1, but,
over Embry’s objection, treated the crack/powder disparity in § 2D1.1 as mandatory. The
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Supreme Court subsequently held in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 564
(2007), that district courts may consider the crack/powder disparity as a basis for choosing a
below-Guidelines sentence. We remanded Embry’s case for resentencing in light of Kimbrough.
United States v. Clanton, 538 F.3d 652, 660 (7th Cir. 2008). At the resentencing hearing, the
district court considered Embry’s sentencing arguments based on Kimbrough and other policy
grounds and chose a minimum-Guidelines sentence of 188 months. In this successive appeal,
Embry argues that the district court failed to adequately address his objections to both the
crack cocaine guideline and the career offender guideline, § 4B1.1. We review for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007).
Beginning with Embry’s objection to § 4B1.1, it is necessary to first explain why that
guideline had particular relevance to Embry’s second sentencing hearing. Embry qualified as
a career offender under § 4B1.1 based on his prior felony convictions for cocaine possession
and armed robbery. Nonetheless, at the time of his first sentencing, Embry was effectively
sentenced under § 2D1.1, rather than § 4B1.1, because his offense level of 36 under the then-
current version of § 2D1.1 was higher than his offense level of 34 under § 4B1.1. See U.S.S.G.
§ 4B1.1(b). By the time of his January 8, 2009 resentencing, the Sentencing Commission had
amended § 2D1.1 to reduce the crack/powder disparity in that guideline. See U.S.S.G., Supp.
to App. C, at 226-31 (2008) (Amendment 706). As a result, Embry’s offense level under § 2D1.1
was only 34, the same as his offense level under § 4B1.1, meaning that he received the same
188-235 month Guidelines range whether sentenced under § 2D1.1 or § 4B1.1.
Recognizing the importance of § 4B1.1 to his second sentencing hearing, Embry challenged
the career offender guideline as unsupported by empirical data and a poor predictor of
recidivism. The district court was unpersuaded, noting that Embry’s repeated criminal activity
indicated a high risk of recidivism. The court continued by offering a detailed explanation for
why the sentence suggested by § 4B1.1 was appropriate for Embry’s particular case. The court
emphasized Embry’s extensive, “disturbing” criminal history, which included a felony
conviction for cocaine possession, a felony conviction for armed robbery, and several
misdemeanors involving violence against police officers and others. This violent history
demonstrated that Embry was a danger to society and unable to conform his conduct to the
law. In order to protect the community and hold Embry accountable for his continued criminal
conduct, the court concluded that a minimum-Guidelines sentence of 188 months was
appropriate.
This analysis more than satisfied the district court’s duty to “adequately explain the chosen
sentence” under the career offender guideline. Gall, 128 S. Ct. at 597. Kimbrough may have
authorized the court to choose a lower sentence based on a policy disagreement with § 4B1.1.
See Kimbrough, 128 S. Ct. at 570; United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008)
(explaining the advisory nature of § 4B1.1). It does not follow that the court was required to
accept Embry’s policy challenge to the career offender guideline and select a below-Guidelines

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sentence. See United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir. 2009) (per curiam)
(explaining that, while a district court may have the discretion to disagree with a guideline
based on a lack of empirical support, it is not required to do so); United States v. Scott, 555 F.3d
605, 610 (7th Cir. 2009) (“If a district court may deviate from the Guidelines based on its
disagreement with the Sentencing Commission’s policy, it is equally within its authority to
adhere to the Guidelines because it concurs with the policy judgment the Guidelines reflect.”).
Embry also contends that the district court failed to adequately address his policy objection
to the crack cocaine guideline, § 2D1.1. At his resentencing hearing, Embry argued that
Kimbrough authorizes district courts to choose a lower sentence based on a policy disagreement
with the crack/powder disparity in § 2D1.1, and that this disparity, though recently reduced
by Amendment 706, remains too high. See United States v. Spears, 129 S. Ct. 840, 843 (2009) (per
curiam) (explaining that, under Kimbrough, district courts may rely on “a categorical
disagreement” with the crack cocaine guideline). The district court’s explanation for rejecting
Embry’s crack/powder disparity argument was less extensive than its treatment of his
objection to § 4B1.1. Still, the court’s reasoning was sufficient to withstand abuse of discretion
review. The court acknowledged that, under Kimbrough, “district courts may consider the
discrepancies between sentences for crack cocaine and powder cocaine when sentencing.” The
court further recognized that, if sentenced under § 2D1.1, Embry’s offense level of 34 would
have been 8 to 14 levels higher based solely on the fact that he possessed crack rather than
powder cocaine. But the court then stated that Embry’s “total offense level would not have
changed because [he was] deemed to be a career offender.” This statement indicates that, were
it not for Embry’s career offender status, the court might have given additional consideration
to Embry’s request for a below-Guidelines sentence based on the crack/powder disparity in
§ 2D1.1. However, since the court found that the sentence suggested by § 4B1.1 was
appropriate for Embry’s particular case, any policy disagreement with § 2D1.1 was
inconsequential. Given the court’s detailed explanation for sentencing Embry under § 4B1.1,
the court’s reliance on Embry’s career offender status was sufficient to dispose of Embry’s
crack/powder disparity argument.
Next, Embry argues that the district court failed to provide a full resentencing in light of
Kimbrough, as required by our remand order in his first appeal. He suggests that the court
erroneously applied the less robust procedure provided by 18 U.S.C. § 3582(c)(2), which allows
crack cocaine offenders sentenced under § 2D1.1 to move for a reduced sentence based on the
Sentencing Commission’s Amendment 706 to § 2D1.1. This argument has little merit. The
sentencing transcript indicates that the court conducted a full resentencing hearing, heard all
of Embry’s policy objections to § 2D1.1 and § 4B1.1, and explained why, in light of the
sentencing factors of 18 U.S.C. § 3553(a), the sentence suggested by the career offender
guideline was appropriate for his particular case. As mentioned above, the court emphasized
Embry’s violent, criminal history. See 18 U.S.C. § 3553(a)(1) (addressing “the history and
characteristics of the defendant”). Based on that history, the court considered Embry “a danger

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to the community” who needed “time away from the community to mature and be less of a
risk to the community.” See id. § 3553(a)(2)(C) (“to protect the public from further crimes of the
defendant”). Embry’s continuing criminal behavior also indicated an inability to conform his
conduct to the law and a high risk of recidivism. See id. § 3553(a)(2)(A) (“to promote respect
for the law”). Based on these factors, the court determined that a minimum-Guidelines
sentence of 188 months was necessary to reflect the “serious nature” of Embry’s conduct and
to hold him accountable. See id. (“to reflect the seriousness of the offense . . . and to provide just
punishment”). The defense had a full opportunity to address the court both in person and in
written form at the resentencing. The court’s sentencing analysis was extensive.
True, since Embry’s offense levels under § 2D1.1 and § 4B1.1 were the same, the career
offender sentencing range adopted by the district court turned out to be exactly what Embry
might have received through a § 3582 motion for a lower sentence under the amended version
of § 2D1.1. Still, this coincidence does not diminish the scope of the sentencing proceedings
that actually took place. The district court did not treat Embry’s resentencing hearing as a
simple § 3582 motion.
Finally, Embry argues that his sentence is substantively unreasonable. That is a difficult
argument to win, since we apply a presumption of reasonableness to Embry’s minimum-
Guidelines sentence of 188 months. United States v. Sainz-Preciado, 566 F.3d 708, 716-17 (7th Cir.
2009). To try to rebut this presumption, Embry merely argues that a sentence based on either
§ 2D1.1 or § 4B1.1, which prescribe disparately harsh sentences for career crack cocaine
offenders without any empirical support, is substantively unreasonable. We discern no
meaningful difference between this argument and Embry’s policy challenges to the crack
cocaine and career offender guidelines, which, as explained above, the district court
adequately considered and rejected.
Accordingly, we AFFIRM Embry’s sentence.

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