1 Cite as: 55 5 U

. S. ____ (2009)
Per Curia m 

## SUPREME CO URT O FTHE UNI TED STATES STE VEN SPEAR S v. UNITE D STATE S
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE S COU R T OF APPEALS FOR THE EIGHTH CIRCUIT No. 08–5 72 1. Dec i ded Jan u a r y21, 2009 P ER C UR IAM

. Steven S p ears was fou n d guiltyof conspiracy to distrib

ute at least 50 grams of cocaine base and at least 500 grams of powder cocaine, in vi olation of 21 U. S. C. §§841(a)(1), (b)(1)(A), (b)(1)(B), 846. At sent encing, the District Co urt determined that the drug quantities attrib

utable to Spears yielded an offen s e level of 38, that his criminal hi story justified placing him in the Guidelines’ criminal history categ o ry IV, and that the resulting advi

sory Guidel ines senten cing ran g e was 324 to 405 months’ imprisonment. The District Cour t was of the view tha t the Guidelines’ 100:1 ratio between powder cocaine and crack cocaine quantities, see Un ited States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2006) (USSG),* yielded an excessive s e ntence inlight of the sentencing factors outlined in18 U. S. C. §3553(a). Rely

ing in parton decisions from other Distric tCourts, s e e UnitedStatesv. Pe rry , 389 F. Supp. 2d 278, 307–308 (RI 2005); United Statesv. Smith , 35 9 F. Supp. 2d 771, 781– 782 (ED Wi s. 2005), which in turn relied on a report fro m the Sentencing Commission criticizing the 100: 1 ratio, see United States Sentencing Commission, Report to Con

gress: Coca ine and Federal Sentencing Policy 106–107 , App. A, pp. 3–6 (May 2002) (hereinafter Report to Co n gress), the District Co urt recalc ulated Spears’ offense lev e l based on a20:1 crack-to-powder ratio. That yielded an

——————

* Th eSen t enc i n gCommissio nh a s si nce re duced the crack-to-powder
r a tio. See USSG, Su pp. App. C, Amdt. 706(Nov . 2007).2 SPEAR S v. UNITED STAT ES
Per Curia m offense level of 34 anda s e ntencing range of 210 to 262 months’ imprisonment. The Dis trict Court sentenced Spears to 240 months in prison, the statutory mandatory minimum. See United St at esv. Spea rs , 46 9 F. 3d 116 6, 1173–1174 (CA8 2006) (en banc) (Spears I)

. On cross-appeal, the Governme nt argued that “the district court erred by cate gorical l y rejecting the 100: 1 quantity ra tio and sub s tituting its own ratio in calculating Spears’s sentence.” Id., at 1174

. The Eighth Circuit reversed Sp ears’ sentence and rem anded for r e sentencing, holding that “neither Bookern o r §3553(a) authorizes district cou rts to reject the 100:1 quantity ra tio and use a different ra tio in sentencingdefen d ants for cr ack cocaine offenses.” Id., at 1176. This Court vacated the judgment of the Eight hCircuit, a n d remanded for fur t her considera

tion in light of Kimbro ughv. United States , 552 U. S. __

_ (2007). Spearsv. United Sta t es , 552 U. S. ___ ( 2008). On remand, the Eighth Circuit again reversed Spears ’ sentence and remanded for resentencing. 533 F. 3d 7 15, 716 (2008) (en banc) (Spears II)

. It concluded, again, that the DistrictCourt “ma ynot categ o rically reject the ratio set forth bythe Guidelines,” id., at 717, and “ ‘impermissi

bly varied by repla cin g

the 100:1 quantity ratio inherent in the advi sory Guide lines range with a20 :1 quantity ratio,’ ” ibid

. (quoting Spea rs I , supra , at 11 78). Spears again petitioned for a writ of ce rtiorari. Because th e Eighth Cir c uit’s decision on remand conflicts with our decision in Kimbrough , we gr ant t h e petition for certiora r i and reverse. In Kimbrou gh , we held that “under Booker , t h e cocaine Guidelines, like all other Guidelines, are advisory only,” 552 U. S. , at ___ (slip op., at 2), and that “it would not be an abuse of discretion for a dis trict court to conclude when sentencing a particula r defendant that the crack/powde r disparity yields a sen t ence ‘grea t er than n e cessary’ to achieve §3553(a)’s purpose, even i na mine-r un case ,” id .,3 Cite as: 55 5 U

. S. ____ (2009)
Per Curia m at ___ (sli p op., at 21) (emphasis added). The correct interpretati on of that holding is the one offered by th e dissent in Spears II: “The Court thus established that even when a particu

lar defendant in a crac kcocaine c a se presents no spe

cial mitigating circums tances—no outstandingservice to country o rcommunity, no unusu a lly disadvantaged childhood, no overstated cri minal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary down ward from the advisory guide

line range. The court may do so based solel yon its view that the 100-to-1 ratio embodied in the sentenc

ing guidelines for the treat ment of crack coca ine ver

sus powdercocaine cre ates ‘an un warran t ed disparity within the meaning of §3553(a),’ and is ‘at odds with §3553(a).’ The only f a ct necessary to justify such a variance is the sentencing court ’ s disagreement with the guidelines—its policy view th at the 100-to-1 ratio creates an unwarran t ed disparity. ” 533 F. 3d, at 719 (opinion of Colloton, J.) (citations omitted). Kimbroughconsidered and reject ed the position taken by the Ei gh th Circui tbelow. It noted tha t“a dist ric t court’s deci sion to vary from the advisory Guidelines may attrac tgr eatest respectwhen the sentencing judge finds a particular case ‘outside the “heartland” to which th e Commission intends i n dividual Guidelines to apply.’ ” 55 2 U. S., at __ _ (slip op., at 20–21) (quoting Ritav. United Sta t es , 551 U. S. 338, 351 (2007) ). The im plication was that an “in s ide the heartland” de parture (w hich is neces

sarily base don a polic y disagreement with the Guidelin es and necess arily disagrees on a “categorical basis”) may be entitled to less respect. Ou r opinion said, h o wever, that the “cra ck cocaine Guidelines .

. . present no occasion for elaborative discussion of this matter because those Guide

lines do no t exemplify the Commission’s e x ercise of its4 SPEAR S v. UNITED STAT ES
Per Curia m characteristic institutional ro le.” 552 U. S., at ___ (slip op., at 21). Kimbrough thus holds that with respect to the
crac kcocai n e Guidelines, a categorical disagr eement with and variance from the Guidelines i s not suspect. That was indeed the point of Kimbrough:a recognition of district courts’ auth o rity to var yfrom the crac kcocai n e Guidelines based on policydisagreement with them, and not simply based on an individua lized determination that they yield a nexcessive senten ce in a particular case. The latter proposition was a l ready established pre- Kimbrough , seeUnited Sta t esv. Bo oker , 543 U. S. 220, 245–246 (2005), and the Government conceded as much in Kimbrough

. 552 U. S., at ___, n. 1 3 (slip op., at 13, n. 13). That the Government did not prevail in Kimbroughproves that it s concession—“that a di strict court may vary from the 100:1 ratio if it does so‘ba s ed on theindividual ized circum

stance[s]’ of a particular case,” ibid. —understated the extent of district cour ts ’ sentencing discretion. In drawing a distinction between “individualized, case

specific” consideration of the Guidelines’ ratio and cate

gorical rejection and r e placement of that rati o, the Eight h Circuit relied in part, Spears II , supra , at 717, on the following passage from Kimbrough: “The [district] court di d not purport to establish a ra

tio of its own. Rather, it appropria t ely framed its final determination in line with §3553(a)’s overarching in

struction t o‘impose a sentence sufficient, but not greater tha nnecessary’ to accomp lish the sentencing goals advanced in §355 3(a)(2).” 55 2 U. S., at ___ (slip op., at 22). This says that it was “approp riat e” for the District Co urt in Kimbroughnot to s p ecify whatratio it wa s using, bu t merely to proceed with §3553(a) analysis. The Eighth Circuit rea dthat to mean that district co urts, in the course of th eir individualized determinations, may n o t5 Cite as: 55 5 U

. S. ____ (2009)
Per Curia m categoric a ll y disagre e with the Guidelines ra tio, and (con

sequen t ly) may not substitu te thei r own ra tio for that of t h e Guidelines

. If it meant that, ou r vaca ting of the Eigh th Circuit’s judgment in Spea rs I would have been inexplic a ble, becaus e that supposedly impe rmissible di sagreement and substitution was precisely the reason for Spea rs I ’s reversal of the DistrictCourt. See Spears I , 469 F. 3d, at 1175–1176. As a logic a l matter, of course, rejection of th e 100:1 ratio, explicitly a pproved b y Kimbrough , necessarily implies adoption of some other ratio to govern the mine

run case. A sentencing judge who is given the power to reject the disparity cr eated by th e crac k -to- powder rati o must also possess the power to apply a dif f erent ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant’s sentence necessarily permits adoption of a replacement ratio. To the extent the above quoted la nguage has obscure d Kimbrough ’s holding, we now clarify that di strict cour t s are entitled to rejec tan d var y cate gorically fro mthe c r ac k

cocaine Guidelines ba s e d on a po licy disagreement with those Guidelines. Here, the District Court’s choice of replacement ratio was based u p on two well-reason ed decisions by other courts, wh i c h t h emselves reflected th e Sentencing Commissi on’s ex pert judgment that a 2 0 :1 ratio would be appropriate in a mine-run case. See Perry , 389 F. Supp. 2d, at 3 07–308; Smith , 359 F. Supp. 2d, at 781–782; Report to Congress 106–107, App. A, pp. 3–6. The alternative appro a ch—adopt ed by the Eighth Cir

cuit—would lik ely yield one of two results. Either district courts would treatthe Guidelines’ policy embodied in the
crac k -to-po wder ratio as mand atory, believing that th ey are not ent i tled to vary based on “categorical” policy dis

agreements with the Guidelines, or they woul d continue to vary, mas k ing their c a tegorical policy disagreements as “individualized determinations.” The latter is institution

alized subt erfuge. The former contradicts o u r holding in6 SPEAR S v. UNITED STAT ES
Per Curia m Kimbrough

. Neither is an acceptab le sentencin gpractice. In opposing Spears’ pr esent petition for a writ of certio

rari, the Government contends that the Eigh th Cir c uit’s opinion sta n ds only for the noncontroversial proposition that a remand for resentencing was warranted in this case because the District Co urt did no t properly consider all of the §3553(a) sentencing factors. Brief in Opposition 12– 13. But th e Government did not present th at argumen t below, and the Eighth Circuit’s opi n ion plainlydid not res t on that gro und. It co ncluded instead that “the district court may n o t categoric a lly reje ct t h e ratio set forth by the Guidelines. ” Spears II , 533 F. 3d, at 717. The Eighth Circuit has since read its own o p inion to mean what it says, seeUnited S t a t esv. Judon , 284 Fed. Appx. 371, 3 7 2 (2008) (per curiam) , a n ds od ow e
. I na n ye v e n t , t ot h e extent the District Co urt cut short its senten cing analysi s , it did so only because it had alr e ady determined that a mandatory minimum s e ntence was required, thus mooting any furtherarguments for a reduced sentence. The deci

sion not to entertain pointl ess arguments h a rdly consti

tutes procedural error. The dissent contends, post , a t1, that the Eighth Circuit recognized Kimbrough ’s core holding when it stated that in conducti ng “an indi vidualized asse ssmen tbased upon the particul a r circumst ances of a defendant’s case, a dis

trict court may determine the 100:1 quantity ra tio results in a harsher sentence than necessary,” S p ea rs II , supra, at 717. But that was not Kimbrough ’s holding; it was the Governm e nt’sposition in Kimbrough , whichdid not pre

vail. And it is expressly contradicted by Kimbrough ’s holding that district co urts are entitled to vary from the crack-cocai ne guidelin es in a mine-run case where there are no “particular cir c umstances” that wou l d otherwise justify a variance from the Guidelines’ sentencing range. The dissent believes that “[ t]his petition involves the arguably distinct issue whether district cou rts that do7 Cite as: 55 5 U

. S. ____ (2009)
Per Curia m disagree with the poli cy underlying the Guidelines ma y adopt their own ca te gor i cal crac k -p owder ra tios in place of the ratio set forth in th e Guidelines.” Post , at 1. But tha t is in fact not distinct from the issue we addressed in Kimbrough

. To say that the judge who considers the 100:1 ratio excessive cannot apply a di fferent ratio is to say th at the Kimbrough -sanctioned district-court d i sagreement with the 10 0:1 ratio ca nnot honestly be given effect. It is absurd to think that a sentence which is reasonable in light of the statutory sentencing factors, see 18 U. S. C. §3553(a), becomes unreasonable if the sentencing judge chooses to s p ecify his disagreemen t, and the degree of his disagreement, with the 100:1 ratio, which is the entir e basis for his Guidelines departure. The dissent says that “ Apprendi, Booker , Rita , Gall , an d Kimbroughhave give n the lower courts a good deal to digest overa relatively short per i od.” Post, at 3. Tru e enough—and we should therefore promptly remove from the menu th e Eighth Circuit’s offering, a sm uggled-in dish that is indigestible. Finally, the dissent points out that other court s have followed the Eigh th Circuit ’s course, see United Sta t esv. Russ ell , 537 F. 3d 6, 11 (CA1 2008); UnitedStatesv. Gun t e r , 527 F. 3 d282, 286 (CA3 2008). Both of those courts, like the Eigh th Circuit, seized upon the language from Kimbrough quoted above in order to stand by the course they had adopted pre- Kimbrough— and in the case of the First Circ uit, despite this Court ’ s having vacated and remanded, inlight of Ki mbrough, the prior First Circuit judgment whi c h had established that
course. See Phov. Uni t ed S t a t es , 552 U. S. _ __ (2008). If the error of those opinions is, as we think, e vident, the y demonstrate the need to clarify at once the holding of Kimbrough. * * * The petition for certiorari and the motion for leave to8 SPEAR S v. UNITED STAT ES
Per Curia m proceed in forma pau p erisare granted. The judgment o f the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so orde red.
J USTICE K E NNEDY would grant th e petition for a writ of certiorari and set the case for oral argument.
J USTICE T HOMA Sdissents.1 Cite as: 55 5 U

. S. ____ (2009)

R OBERTS , C. J., dissen t in g 

## SUPREME CO URT O FTHE UNI TED STATES STE VEN SPEAR S v. UNITE D STATE S
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE S COU R T OF APPEALS FOR THE EIGHTH CIRCUIT No. 08–5 72 1. Dec i ded Jan u a r y21, 2009 C HIEF J U S TICE R OBERTS , with whom J US TICE ALITO joins, dissenting. I dissent from the Court’s summary rever s al in this
case. As explained by the ma jority here and the dissent

ing judges below, there are cogent argume nts that th e Eighth Circ uit’s decision was co nt r a ry to our decision last Term in Ki mbroughv. United Sta t es , 552 U. S. ___ (200 7). But I do no t think anyerror is so apparent a s to war r an t the bitter m e dicine of summary re versal, and I think ther e are good re asons notto address th e questi o npresented at this time. In the decision below, the Court of Appeals recognized Kimbrough ’s core holding that dist rict courts have author

ity to depart from the Guidelines based on policy concerns: “In considering the overall goals of sentencing under [18 U. S. C.] §3 553(a) and conductin gan individualized as

sessm entb a sed upon the particu lar circums tances of a defendant’s case, adistrict court m a y determine the 100: 1 quantity ra tio results in a harsh er sentence than nece s sary.” 533 F. 3d 715, 717 (CA8 2008). This petition in

volves the arguably di stinct issue whether district courts that do disagree with the policy underlying the Guidelines may adopt their own categori calcrac k -powder ratios in place of the ratio set forth in the Guidelines. There is at least some language in Kimbrough tha t seems to support the Court of Appeals’ holding. In Kimbrough , we noted with appa rent appro v al that th e DistrictCo urt “ didnot purport to establish a ratio of its
own .” 552 U. S., at ___ (slip op., at 22) (emphasis added).2 SPEAR S v. UNITED STAT ES

R OBERTS , C. J., dissen t in g Rather, we held, the D i strict Cour t “appropri ately framed its final d e termination in lin e with §3553(a)’s overarching instruction to impose a sentence sufficient, but not gr eat e r than necessary to accomplish th e sentencin ggoals ad

vanced in §3553(a)(2).” Ibid. (in t ernal quotation marks omitted). Two other Courts of Appeals agree with the Eighth Circuit’s in terpretatio nof this language. See United Sta t es v. R u ssell , 537 F. 3d 6, 11 (CA1 2008) (emphasizin g “the import ance of individualized, case-by-cas esentencing determinations, rather than a reliance ongeneralized ratios”); Un ited Sta t esv. Gun t e r , 527 F. 3d 2 82, 286 (CA3 2008) (“a district court may not employ a ‘ru bber stamp’ approach t hat categor i cally reject s the crac k/powder dis

parity without an individualized assess ment of the §3553(a) fa ctors”). The majority cites no circuit court decision contrar yto tha tof th e Eighth Circuit in this case. This is not the stuff of summary r e versal. The majority may well be correct that its holding today followsfrom Kimbrough , but it is not clear to me that this result was part and parcel of the holding in that case, especially in light of the language quoted above. At the same time, I do not believ ethis case meets our normal crit e ria for plenary cons ideration. As noted, there is no split in the lower courts on the question whether a district cou rt may rep l ace the crack-po w derratio in the Guidelines with a ca tegorical r a tio of the court’s o w n choosing. And, as explained above, I do not think th e Court of Ap peals has “so far dep a rted from the accepte d and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervis ory power.” S. Ct. Rule 10(a). In other words, this is exactly the sort of issue that could benefit from further atte ntion inthe c o urts of ap

peals. We should not rush to a n swer a no vel question about the application of a one-year-old decision in the absence of a pronounced conflict among the circuits.3 Cite as: 55 5 U

. S. ____ (2009)

R OBERTS , C. J., dissen t in g Apprendi , Booker , Rita , Gall , and Kimbroughhave given the lower courts a good deal to digest over a relatively short period. We should give th em some time to addr ess the nuances of these precedents before adding new ones. As has been said, a plant cannot grow if yo u constantly yankit out of the ground to see if the roots are healthy.