Cite as: 555 U. S. ____ (2009) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

STEVEN SPEARS v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 08–5721. Decided January 21, 2009

 PER CURIAM. 

Steven Spears was found guilty of conspiracy to distribute at least 50 grams of cocaine base and at least 500 

grams of powder cocaine, in violation of 21 U. S. C. 

§§841(a)(1), (b)(1)(A), (b)(1)(B), 846. At sentencing, the 

District Court determined that the drug quantities attributable to Spears yielded an offense level of 38, that his

criminal history justified placing him in the Guidelines’ 

criminal history category IV, and that the resulting advisory Guidelines sentencing range was 324 to 405 months’ 

imprisonment. The District Court was of the view that 

the Guidelines’ 100:1 ratio between powder cocaine and 

crack cocaine quantities, see United States Sentencing 

Commission, Guidelines Manual §2D1.1(c) (Nov. 2006)

(USSG),* yielded an excessive sentence in light of the 

sentencing factors outlined in 18 U. S. C. §3553(a). Relying in part on decisions from other District Courts, see 

United States v. Perry, 389 F. Supp. 2d 278, 307–308 (RI 

2005); United States v. Smith, 359 F. Supp. 2d 771, 781–

782 (ED Wis. 2005), which in turn relied on a report from

the Sentencing Commission criticizing the 100:1 ratio, see 

United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 106–107, 

App. A, pp. 3–6 (May 2002) (hereinafter Report to Congress), the District Court recalculated Spears’ offense level

based on a 20:1 crack-to-powder ratio. That yielded an 

—————— 

*The Sentencing Commission has since reduced the crack-to-powder 

ratio. See USSG, Supp. App. C, Amdt. 706 (Nov. 2007). 
2 SPEARS v. UNITED STATES 

Per Curiam 

offense level of 34 and a sentencing range of 210 to 262

months’ imprisonment. The District Court sentenced 

Spears to 240 months in prison, the statutory mandatory

minimum. See United States v. Spears, 469 F. 3d 1166, 

1173–1174 (CA8 2006) (en banc) (Spears I). 

On cross-appeal, the Government argued that “the

district court erred by categorically rejecting the 100:1

quantity ratio and substituting its own ratio in calculating 

Spears’s sentence.” Id., at 1174. The Eighth Circuit

reversed Spears’ sentence and remanded for resentencing,

holding that “neither Booker nor §3553(a) authorizes 

district courts to reject the 100:1 quantity ratio and use a

different ratio in sentencing defendants for crack cocaine 

offenses.” Id., at 1176. This Court vacated the judgment 

of the Eighth Circuit, and remanded for further consideration in light of Kimbrough v. United States, 552 U. S. ___ 

(2007). Spears v. United States, 552 U. S. ___ (2008). 

On remand, the Eighth Circuit again reversed Spears’ 

sentence and remanded for resentencing. 533 F. 3d 715, 

716 (2008) (en banc) (Spears II). It concluded, again, that

the District Court “may not categorically reject the ratio 

set forth by the Guidelines,” id., at 717, and “‘impermissibly varied by replacing the 100:1 quantity ratio inherent

in the advisory Guidelines range with a 20:1 quantity 

ratio,’” ibid. (quoting Spears I, supra, at 1178). Spears

again petitioned for a writ of certiorari. Because the 

Eighth Circuit’s decision on remand conflicts with our

decision in Kimbrough, we grant the petition for certiorari 

and reverse. 

In Kimbrough, we held that “under Booker, the 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 district court to conclude when 

sentencing a particular defendant that the crack/powder

disparity yields a sentence ‘greater than necessary’ to 

achieve §3553(a)’s purpose, even in a mine-run case,” id., 
Cite as: 555 U. S. ____ (2009) 3 

Per Curiam 

at ___ (slip op., at 21) (emphasis added). The correct 

interpretation of that holding is the one offered by the 

dissent in Spears II: 

“The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service 

to country or community, no unusually disadvantaged 

childhood, no overstated criminal history score, no 

post-offense rehabilitation—a sentencing court may

nonetheless vary downward from the advisory guideline range. The court may do so based solely on its 

view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity

within the meaning of §3553(a),’ and is ‘at odds with

§3553(a).’ The only fact necessary to justify such a 

variance is the sentencing court’s disagreement with

the guidelines—its policy view that the 100-to-1 ratio

creates an unwarranted disparity.” 533 F. 3d, at 719 

(opinion of Colloton, J.) (citations omitted). 

Kimbrough considered and rejected the position taken

by the Eighth Circuit below. It noted that “a district 

court’s decision to vary from the advisory Guidelines may

attract greatest respect when the sentencing judge finds a

particular case ‘outside the “heartland” to which the 

Commission intends individual Guidelines to apply.’” 552 

U. S., at ___ (slip op., at 20–21) (quoting Rita v. United 

States, 551 U. S. 338, 351 (2007)). The implication was 

that an “inside the heartland” departure (which is necessarily based on a policy disagreement with the Guidelines 

and necessarily disagrees on a “categorical basis”) may be

entitled to less respect. Our opinion said, however, that 

the “crack cocaine Guidelines . . . present no occasion for

elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its 
4 SPEARS v. UNITED STATES 

Per Curiam 

characteristic institutional role.” 552 U. S., at ___ (slip 

op., at 21). Kimbrough thus holds that with respect to the

crack cocaine Guidelines, a categorical disagreement with 

and variance from the Guidelines is not suspect. 

That was indeed the point of Kimbrough: a recognition

of district courts’ authority to vary from the crack cocaine 

Guidelines based on policy disagreement with them, and

not simply based on an individualized determination that 

they yield an excessive sentence in a particular case. The 

latter proposition was already established pre-Kimbrough, 

see United States v. Booker, 543 U. S. 220, 245–246 (2005), 

and the Government conceded as much in Kimbrough. 

552 U. S., at ___, n. 13 (slip op., at 13, n. 13). That the 

Government did not prevail in Kimbrough proves that its 

concession—“that a district court may vary from the 100:1 

ratio if it does so ‘based on the individualized circumstance[s]’ of a particular case,” ibid.—understated the 

extent of district courts’ sentencing discretion.

In drawing a distinction between “individualized, casespecific” consideration of the Guidelines’ ratio and categorical rejection and replacement of that ratio, the Eighth

Circuit relied in part, Spears II, supra, at 717, on the 

following passage from Kimbrough: 

“The [district] court did not purport to establish a ratio of its own. Rather, it appropriately framed its final 

determination in line with §3553(a)’s overarching instruction to ‘impose a sentence sufficient, but not

greater than necessary’ to accomplish the sentencing

goals advanced in §3553(a)(2).” 552 U. S., at ___ (slip 

op., at 22). 

This says that it was “appropriate” for the District Court

in Kimbrough not to specify what ratio it was using, but 

merely to proceed with §3553(a) analysis. The Eighth

Circuit read that to mean that district courts, in the 

course of their individualized determinations, may not 
Cite as: 555 U. S. ____ (2009) 5 

Per Curiam 

categorically disagree with the Guidelines ratio, and (consequently) may not substitute their own ratio for that of the 

Guidelines. If it meant that, our vacating of the Eighth

Circuit’s judgment in Spears I would have been inexplicable, because that supposedly impermissible disagreement 

and substitution was precisely the reason for Spears I’s 

reversal of the District Court. See Spears I, 469 F. 3d, at 

1175–1176. As a logical matter, of course, rejection of the 

100:1 ratio, explicitly approved by Kimbrough, necessarily

implies adoption of some other ratio to govern the minerun case. A sentencing judge who is given the power to

reject the disparity created by the crack-to-powder ratio 

must also possess the power to apply a different 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 language has obscured 

Kimbrough’s holding, we now clarify that district courts

are entitled to reject and vary categorically from the crackcocaine Guidelines based on a policy disagreement with 

those Guidelines. Here, the District Court’s choice of 

replacement ratio was based upon two well-reasoned 

decisions by other courts, which themselves reflected the

Sentencing Commission’s expert judgment that a 20:1 

ratio would be appropriate in a mine-run case. See Perry, 

389 F. Supp. 2d, at 307–308; Smith, 359 F. Supp. 2d, at 

781–782; Report to Congress 106–107, App. A, pp. 3–6.

The alternative approach—adopted by the Eighth Circuit—would likely yield one of two results. Either district 

courts would treat the Guidelines’ policy embodied in the

crack-to-powder ratio as mandatory, believing that they 

are not entitled to vary based on “categorical” policy disagreements with the Guidelines, or they would continue to

vary, masking their categorical policy disagreements as 

“individualized determinations.” The latter is institutionalized subterfuge. The former contradicts our holding in 
6 SPEARS v. UNITED STATES 

Per Curiam 

Kimbrough. Neither is an acceptable sentencing practice. 

In opposing Spears’ present petition for a writ of certiorari, the Government contends that the Eighth Circuit’s

opinion stands only for the noncontroversial proposition 

that a remand for resentencing was warranted in this case 

because the District Court did not properly consider all of 

the §3553(a) sentencing factors. Brief in Opposition 12–

13. But the Government did not present that argument

below, and the Eighth Circuit’s opinion plainly did not rest

on that ground. It concluded instead that “the district 

court may not categorically reject the ratio set forth by the

Guidelines.” Spears II, 533 F. 3d, at 717. The Eighth

Circuit has since read its own opinion to mean what it 

says, see United States v. Judon, 284 Fed. Appx. 371, 372 

(2008) (per curiam), and so do we. In any event, to the

extent the District Court cut short its sentencing analysis, 

it did so only because it had already determined that a

mandatory minimum sentence was required, thus mooting 

any further arguments for a reduced sentence. The decision not to entertain pointless arguments hardly constitutes procedural error.

The dissent contends, post, at 1, that the Eighth Circuit 

recognized Kimbrough’s core holding when it stated that 

in conducting “an individualized assessment based upon

the particular circumstances of a defendant’s case, a district court may determine the 100:1 quantity ratio results 

in a harsher sentence than necessary,” Spears II, supra, 

at 717. But that was not Kimbrough’s holding; it was the 

Government’s position in Kimbrough, which did not prevail. And it is expressly contradicted by Kimbrough’s 

holding that district courts are entitled to vary from the 

crack-cocaine guidelines in a mine-run case where there

are no “particular circumstances” that would otherwise 

justify a variance from the Guidelines’ sentencing range.

The dissent believes that “[t]his petition involves the

arguably distinct issue whether district courts that do 
Cite as: 555 U. S. ____ (2009) 7 

Per Curiam 

disagree with the policy underlying the Guidelines may 

adopt their own categorical crack-powder ratios in place of

the ratio set forth in the Guidelines.” Post, at 1. But that 

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 different ratio is to say that 

the Kimbrough-sanctioned district-court disagreement

with the 100:1 ratio cannot 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 specify his disagreement, and the degree of his 

disagreement, with the 100:1 ratio, which is the entire

basis for his Guidelines departure. 

The dissent says that “Apprendi, Booker, Rita, Gall, and 

Kimbrough have given the lower courts a good deal to 

digest over a relatively short period.” Post, at 3. True 

enough—and we should therefore promptly remove from 

the menu the Eighth Circuit’s offering, a smuggled-in dish 

that is indigestible. Finally, the dissent points out that

other courts have followed the Eighth Circuit’s course, see 

United States v. Russell, 537 F. 3d 6, 11 (CA1 2008); 

United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008).

Both of those courts, like the Eighth 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 Circuit, despite this Court’s 

having vacated and remanded, in light of Kimbrough, the 

prior First Circuit judgment which had established that 

course. See Pho v. United States, 552 U. S. ___ (2008). If 

the error of those opinions is, as we think, evident, they

demonstrate the need to clarify at once the holding of 

Kimbrough. 

* * * 

The petition for certiorari and the motion for leave to 
8 SPEARS v. UNITED STATES 

Per Curiam 

proceed in forma pauperis are granted. The judgment of

the Court of Appeals is reversed, and the case is remanded

for further proceedings consistent with this opinion. 

It is so ordered. 

JUSTICE KENNEDY would grant the petition for a writ of 

certiorari and set the case for oral argument. 

JUSTICE THOMAS dissents. 
Cite as: 555 U. S. ____ (2009) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

STEVEN SPEARS v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 08–5721. Decided January 21, 2009

 CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO 

joins, dissenting. 

I dissent from the Court’s summary reversal in this 

case. As explained by the majority here and the dissenting judges below, there are cogent arguments that the 

Eighth Circuit’s decision was contrary to our decision last 

Term in Kimbrough v. United States, 552 U. S. ___ (2007).

But I do not think any error is so apparent as to warrant 

the bitter medicine of summary reversal, and I think there 

are good reasons not to address the question presented at 

this time. 

In the decision below, the Court of Appeals recognized 

Kimbrough’s core holding that district courts have authority to depart from the Guidelines based on policy concerns: 

“In considering the overall goals of sentencing under [18 

U. S. C.] §3553(a) and conducting an individualized assessment based upon the particular circumstances of a

defendant’s case, a district court may determine the 100:1 

quantity ratio results in a harsher sentence than necessary.” 533 F. 3d 715, 717 (CA8 2008). This petition involves the arguably distinct issue whether district courts 

that do disagree with the policy underlying the Guidelines 

may adopt their own categorical crack-powder ratios in

place of the ratio set forth in the Guidelines. 

There is at least some language in Kimbrough that 

seems to support the Court of Appeals’ holding. In 

Kimbrough, we noted with apparent approval that the 

District Court “did not purport to establish a ratio of its 

own.” 552 U. S., at ___ (slip op., at 22) (emphasis added). 
2 SPEARS v. UNITED STATES 

ROBERTS, C. J., dissenting 

Rather, we held, the District Court “appropriately framed

its final determination in line with §3553(a)’s overarching 

instruction to impose a sentence sufficient, but not greater 

than necessary to accomplish the sentencing goals advanced in §3553(a)(2).” Ibid. (internal quotation marks 

omitted).

Two other Courts of Appeals agree with the Eighth 

Circuit’s interpretation of this language. See United 

States v. Russell, 537 F. 3d 6, 11 (CA1 2008) (emphasizing 

“the importance of individualized, case-by-case sentencing

determinations, rather than a reliance on generalized 

ratios”); United States v. Gunter, 527 F. 3d 282, 286 (CA3

2008) (“a district court may not employ a ‘rubber stamp’

approach that categorically rejects the crack/powder disparity without an individualized assessment of the 

§3553(a) factors”). The majority cites no circuit court

decision contrary to that of the Eighth Circuit in this case. 

This is not the stuff of summary reversal. The majority

may well be correct that its holding today follows from 

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 believe this case meets our 

normal criteria for plenary consideration. As noted, there 

is no split in the lower courts on the question whether a 

district court may replace the crack-powder ratio in the 

Guidelines with a categorical ratio of the court’s own 

choosing. And, as explained above, I do not think the 

Court of Appeals has “so far departed from the accepted

and usual course of judicial proceedings . . . as to call for 

an exercise of this Court’s supervisory power.” S. Ct. Rule 

10(a). In other words, this is exactly the sort of issue that 

could benefit from further attention in the courts of appeals. We should not rush to answer a novel question 

about the application of a one-year-old decision in the

absence of a pronounced conflict among the circuits. 
Cite as: 555 U. S. ____ (2009) 3 

ROBERTS, C. J., dissenting 

Apprendi, Booker, Rita, Gall, and Kimbrough have given

the lower courts a good deal to digest over a relatively

short period. We should give them some time to address

the nuances of these precedents before adding new ones. 

As has been said, a plant cannot grow if you constantly 

yank it out of the ground to see if the roots are healthy.