In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3245

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRENCE R. VANCE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09 CR 40070—J. Phil Gilbert, Judge.

ARGUED JUNE 7, 2011—DECIDED SEPTEMBER 26, 2011

Before EASTERBROOK, Chief Judge, and BAUER and

WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. On October 6, 2009, a federal

grand jury returned an indictment charging the

defendant, Terrence Vance, with two counts of possession with intent to distribute crack cocaine. On March 16,

2010, Vance pleaded guilty to both counts of the indictment without a plea agreement. A probation officer

recommended 262 to 327 months’ imprisonment based
2 No. 10-3245

on the Federal Sentencing Guidelines (the “Guidelines”),

which the district judge adopted without objection. Vance

was ultimately sentenced to 262 months’ imprisonment

and 8 years of supervised release, which he now appeals. For the following reasons, we affirm.

I. BACKGROUND

A. Facts of the Offenses

On September 15, 2009, Vance was apprehended by

police during a traffic stop in Mt. Vernon, Illinois. After

exiting his vehicle during the stop, Vance attempted to

flee. The police used a Taser to subdue him and when

they reached him they discovered two bags containing

2.9 grams of crack cocaine. This formed the basis of

Count 1 of the indictment.

On November 7, 2008, pursuant to a validly executed

warrant, police searched the house in Mt. Vernon where

Vance was staying. The officers found 25.1 grams of crack

cocaine, a digital scale with white residue on it, and $521.00

in cash, which they attributed to Vance. This formed

the basis of Count 2 of the indictment.

B. PSR Findings 

After Vance pleaded guilty to both counts, a probation

officer was assigned to the case. In her presentence report

(“PSR”), the probation officer found that Vance’s base

offense level was 26, but because he was a career

offender under § 4B1.1 of the Guidelines and because his
No. 10-3245 3

maximum possible sentence on the second count was life

imprisonment, his offense level elevated to 37. Even

without career offender status, she found that his prior

convictions, ranging from theft to additional drug

charges, made him a Criminal History Category VI offender, producing the same base offense level of 37. This

figure was then reduced by 3 points for acceptance of

responsibility, producing a total offense level of 34 and

an advisory Guidelines range of 262 to 327 months for

the offenses to which he pleaded guilty.

C. Sentencing Hearing

At the sentencing hearing, neither party objected to any

of the statements or findings in the PSR, including the

calculation of the applicable Guidelines range. Instead,

Vance’s attorney asked the court for a below-Guidelines

sentence because of the disparity between sentences for

powder and crack cocaine offenses. The government

recommended a sentence at the low end of the Guidelines range. The court imposed 262 months and 8 years

of supervised release after reviewing the factors that

must be considered in determining an appropriate

sentence under 18 U.S.C. § 3553.

II. DISCUSSION

On appeal, a sentence within a correctly-applied Guidelines range is entitled to a presumption of reasonableness.

Rita v. United States, 551 U.S. 338, 347 (2007). All sentences,

whether “inside, just outside, or significantly outside
4 No. 10-3245

App. Br. at 11. 1

the Guidelines range,” are reviewed under the deferential

abuse-of-discretion standard. Gall v. United States, 552

U.S. 38, 40 (2007).

In this case, the defendant has conceded that the range

of 262 to 327 months’ imprisonment was computed correctly. We therefore apply the presumption of reasonableness and consider whether (1) the defendant’s arguments for a below-Guidelines sentence were given meaningful consideration and (2) the factors that formed the

basis of the judge’s sentence were adequately communicated at the hearing. If these requirements are satisfied,

we conclude that the sentence imposed was a reasonable exercise of the sentencing judge’s broad discretion.

A. Mitigating Factors Raised By The Defendant

At Sentencing

1. Crack/Powder Disparity

With respect to his argument that the district judge

did not give adequate consideration to the disparity in

the Guidelines between crack and powder cocaine

offenses, Vance’s contention that “the court failed to

address [the crack/powder] argument ” is incorrect and

1

misleading. At sentencing, the district judge squarely

responded to this argument, stating that “even taking

into account the differences between cocaine base and

cocaine, [those differences] would not affect the court[’s]

sentence in this matter.” This satisfies us that the judge
No. 10-3245 5

App. Br. at 12. 2

Vance was sentenced on September 17, 2010, more than 3

six weeks after the Act was signed into law.

considered the argument, but found it unpersuasive.

He certainly did not ignore this factor.

2. Changes Implemented Under Fair Sentencing Act

Vance’s argument that the judge had a faulty understanding of the changes put in place under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(2010), (hereafter the “Act”), is irrelevant.

The Act, which was signed into law on August 3, 2010,

reduced the disparity between sentences involving crack

and powder cocaine and “reset drug quantities required

to trigger mandatory sentences.” United States v. Bell,

624 F.3d 803, 814 (7th Cir. 2010). We recently held that

the Act “applies only to defendants who are sentenced

based on conduct that took place after August 3, 2010.”

United States v. Fisher, 635 F.3d 336, 338 (7th Cir. 2011). In

light of our holding in Fisher, Vance concedes that the

Act does not apply to him because the offenses

he committed occurred before the Act was signed into

law. However, it is worth noting that two Courts of 2

Appeal have recently disagreed with our holding in

Fisher, finding that the Act does apply to defendants such

as Vance, who committed offenses prior to August 3,

2010, but who were sentenced after that date. See United 3

States v. Douglas, ___ F.3d ____, 2011 WL 2120163 (1st Cir.
6 No. 10-3245

App. Br. at 13 (referring to the application of § 2(a)(2) of 4

the Act to 21 U.S.C. § 841(b)(1)(B) and (C)).

May 31, 2011); United States v. Rojas, ___ F.3d ____, 2011

WL 2623579, at *1 (11th Cir. July 6, 2011). Unfortunately

for Vance, our holding in Fisher was affirmed

after much internal debate in United States v. Holcomb,

Nos. 11-1558, 11-1559, 11-1586, & 11-1758 (7th Cir.

August 24, 2011).

We decline to revisit our holdings in Fisher and

Holcomb. Even if the provisions of the Act were applied

to this defendant, the reduced penalties called for

under the Act are consistent with the sentence he received. As Vance himself described it in his brief, under the

Act “[a] defendant who possesses less than 28 grams

of crack is subject to the lesser penalties in subsection

(b)(1)(C) [of the Controlled Substances Act] of up to 20

years in prison or up to 30 years for someone with a

prior controlled substance conviction .” The two counts 4

to which Vance pleaded guilty involved 2.9 and 25.1

grams, respectively. He was also a prior controlled substance offender. So, even under the Act, Vance would

be eligible for up to 30 years’ imprisonment on each of

the two counts. The combined 262 months he received

without the supposed benefit of the Act’s provisions is

a full 8 years less than the maximum number for which

he would have been eligible on each count under the

new Act. Our circuit’s precedent is clear that the Act

does not apply to Vance; were it to apply, the sentence

imposed would still be reasonable by the Act’s terms.
No. 10-3245 7

B. The Judge’s Reasoning

Since neither of the defendant’s arguments for a lesser

sentence compel us to reverse the presumptively reasonable sentence imposed, the only issue left is whether

the judge adequately articulated the 18 U.S.C. § 3553

factors which he found most significant in deciding

upon the sentence of 262 months’ imprisonment.

Section 3553 factors range from “the nature and circumstances of the offense and the history and characteristics

of the defendant” to “the need for the sentence imposed

to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for

the offense.” See 18 U.S.C. § 3553(a).

After reviewing a transcript of the sentencing hearing,

it is clear that the judge discussed the relevant factors in

sufficient detail; unfortunately for the defendant, the

analysis was not favorable to him. At various points

during the sentencing hearing, the judge referred

to Vance’s extensive criminal history and to prison time

he had previously served for other convictions. The

transcript indicates that the judge took Vance’s status as

a repeat offender very seriously. The fact that Vance

was incarcerated more than once before and continued

to re-offend was a factor that weighed strongly against

him in the judge’s calculation of an appropriate sentence. In the judge’s view, the defendant’s experience

of serving time and re-offending demonstrated a pattern of

disregard for the law that needed to be addressed. The

decision not to sentence the defendant below the Guidelines reflected these specific concerns.
8 No. 10-3245

In closing, we cannot fault the district judge for

denying a break to a career offender, particularly when

the sentence imposed fell within the agreed-upon Guidelines range. While every judge is entitled to sentence at

variance with the Guidelines, no judge is required to do

so. United States v. Corner, 598 F.3d 411, 416 (7th Cir.

2010). As we held in 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.”

We are satisfied that the district judge adequately

responded to the defendant’s arguments for a lesser

sentence and that he articulated the factors that formed

the basis of the sentence with sufficient particularity.

Accordingly, his decision to sentence the defendant at

the low end of the Guidelines range was not an abuse

of discretion.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the defendant’s

conviction and sentence.
No. 10-3245 9

WILLIAMS, Circuit judge, dissenting. Because I am not

assured that the judge adequately responded to Vance’s

arguments concerning the effect that his conviction for a

crime of crack rather than powder cocaine had on his

sentence, I think a limited remand is the proper course

of action. I therefore dissent.

The full context of the judge’s remarks at the sentencing

hearing is important. The judge first asked the parties

whether there were any objections to the PSR and the

probation officer’s guidelines range calculation, and the

parties had no objections. The judge then stated: 

And the Court would note that even with the reduction in the cocaine base, well, the new cocaine base

reduction in terms of the guidelines really would

have no effect in this case because of the career offender status. And so the Court, even taking into

account the differences between cocaine base and

cocaine, would not affect the court[’s] sentence in

this matter.

These remarks evidence some confusion. The first

sentence and its reference to the “new” cocaine base

reduction suggest that the remarks refer to the Fair Sentencing Act, and the use of “so” in the second sentence

suggests that it is a comment about the FSA as well. But

if the FSA applied to Vance, his guidelines range would

change because the new statutory maximum would be

30 years, see 21 U.S.C. § 841(b)(1)(C), which would affect

the computation of the guidelines range under the

career offender guideline, see U.S.S.G. § 4B1.1. If these

remarks were about the FSA, then, they were incorrect
10 No. 10-3245

as to the effect retroactive application of the FSA would

have had on Vance’s guidelines range.

More importantly, they did not respond to Vance’s

argument that he should receive a lower sentence in

light of the crack/powder disparity in the guidelines.

This argument is wholly unrelated to the FSA. Our decision in United States v. Corner makes clear that a judge

can take the crack/powder disparity in the career

offender guideline into account during sentencing. 598

F.3d 411, 416 (7th Cir. 2010) (en banc). The majority takes

the position that the statement “taking into account the

differences between cocaine base and cocaine, would not

affect the court[’s] sentence in this matter” means that the

judge justifiably rejected Vance’s disparity argument.

I disagree. First, Vance did not make the disparity argument until after the district court had made the remarks

to which the majority points. See Sent. Tr. pp. 4, 6. And

the argument had not been made in any written submissions, so the judge’s comments could not have

been responding to any arguments made there either.

Significantly, even if the remarks were referring to the

crack/powder disparity in the pre-FSA guidelines, they

are still incorrect, as it is not true that the disparity

would have “no effect” on Vance’s sentence. Had Vance’s

offense involved powder cocaine, rather than crack cocaine, his pre-FSA guideline range would have

been significantly lower. The applicable powder

cocaine guideline range was 188 to 235 months, while the

presence of crack cocaine yielded Vance’s 262 to 327

month range.
No. 10-3245 11

We have issued limited remands on many occasions

when we have been unsure whether the judge adequately understood his discretion at sentencing. See, e.g.,

United States v. Simms, 626 F.3d 966, 972 (7th Cir. 2010);

United States v. Bell, 585 F.3d 1045, 1054 (7th Cir.

2009). Vance’s argument that the crack/powder disparity

should be taken into account was not frivolous. See

Corner, 598 F.3d at 416. Yet the transcript does not

provide assurance that the judge responded to it with the

understanding that the sentences for the two types of

cocaine would be different. Cf. United States v. Kilgore, 591

F.3d 890, 893 (7th Cir. 2010) (“the district court . . . must

explain its decision and address non-frivolous sentencing arguments”).

The government conceded as much during oral

argument when it stated that a limited remand would be

a simple way to address concerns about whether the

district court took the disparity into account. I agree with

the government and believe that the proper course of

action is a limited remand to ask the judge whether he

would have sentenced Vance any differently in light of the

disparity in crack and powder career offender guideline

ranges in this case and the discretion judges have to

consider them under Corner. Therefore, I respectfully

dissent.

9-26-11