# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 19, 2008

Decided December 1, 2008

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 07

‐ 2269

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

MELVIN D. JACKSON,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 06

‐ CR

‐ 174

‐ C

‐ 01

Barbara B. Crabb,

Chief Judge

.

O R D E R

Melvin Jackson pleaded guilty to distributing crack, s ee 21 U.S.C. § 841(a)(1), and the

district court sentenced him as a career offender to 188 months’ imprisonment. On appeal

Jackson asks that we vacate his sentence and order a remand so that the district court can

reconsider his sentence in light of Kimbrough v. United States

, 128 S. Ct. 558, 574 (2007).

Because Jackson was sentenced as a career offender, however, Kimbrough has no effect on

his sentence. We therefore affirm Jackson’s sentence.

Jackson, using the alias “Shane,” arranged to sell two ounces of crack to an

undercover police officer for $1,800. Jackson and his friend Gregory Burks met the officer at NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 2269 Page 2

the agreed location and told him to follow them to an IHOP. At the IHOP, Burks handed

Jackson a package, which Jackson passed along to the officer. Testing confirmed that the

package contained roughly 47 grams of crack.

That quantity triggered a statutory maximum of 40 years’ imprisonment. See 21

U.S.C. § 841(b)(1)(B)(iii). At sentencing in May 2007, the district court concluded—and

defense counsel conceded—that Jackson qualified as a career offender because he was 22

when he committed this drug crime and had prior felony convictions for forcible robbery

and substantial battery. The court thus applied a base offense level of 34 under U.S.S.G. §

4B1.1(B). With a three

‐ level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,

Jackson’s total offense level of 31 combined with his criminal history category of VI yielded

an imprisonment range of 188 to 235 months. Jackson argued that an even lower sentence

would be appropriate and asked the court to depart below the career offender range, but the

court disagreed:

You’re young and impulsive and very dangerous and I really can’t agree with

[defense counsel], as eloquently as he presented his argument, but I can’t

agree with him that you’re somebody that should have the benefit of lower

guidelines. I think you’re a career offender and you very much deserve that

characterization.

The court therefore imposed a term at the low end of that range after considering Jackson’s

offense, history, and characteristics. See 18 U.S.C. § 3553(a).

On appeal Jackson makes a “ Kimbrough

‐ like” argument: he argues that the Supreme

Court’s reasoning in Kimbrough should be extended beyond the guidelines to statutory

penalties that turn on whether the cocaine at issue is powder or crack. Jackson

acknowledges that he did not raise this argument in the district court, so our review is for

plain error. See United States v. Taylor

, 520 F.3d 746, 748

‐ 49 (7th Cir. 2008)

. Jackson correctly

notes that if he had sold powder cocaine instead of crack, the statutory maximum sentence,

and therefore his base offense level and sentencing range, would have been lower. So,

Jackson proposes, the “intermediate step” of determining the appropriate statutory

maximum should also be subject to the same discretion that a sentencing court has under

Kimbrough to reject the default ratio of powder to crack.

However, as Jackson’s attorney conceded at oral argument, this is just new

packaging for a recycled argument. In a typical case requiring remand after Kimbrough

, the

defendant’s base offense level is set by U.S.S.G. § 2D1.1, and so the sentencing disparity

between crack and powder cocaine offenses arises from the drug

‐ quantity table contained in

the guidelines. See, e.g., United States v. Hearn

, 534 F.3d 706, 714

‐ 15 (7th Cir. 2008)No. 07

‐ 2269 Page 3

(remanding and observing that “the 100:1 ratio is not a statutory dictate” but rather “a

judgment of the Sentencing Commission.”)

. In contrast, Jackson was sentenced under

U.S.S.G. § 4B1.1, which in turn relies on statutory maximums to establish a defendant’s base

offense level. Thus, although Jackson’s sentencing range was higher than if he had been

caught with an identical amount of powder cocaine, the disparity in his case stems not

“from the guideline itself but from the statutory maximum that the guideline referenced.”

United States v. Liddell

, No. 07

‐ 3373, 2008 WL 4149750, at *4 (7th Cir. Sept. 10, 2008). And

“[w]hile the sentencing guidelines may be only advisory for district judges, congressional

legislation is not.” United States v. Harris

, 536 F.3d 798, 803 (7th Cir. 2008). Kimbrough

therefore has no effect on Jackson’s statutory maximum or his guidelines range. See Harris

,

536 F.3d at 813 (7th Cir. 2008); see also United States v. Clanton

, 538 F.3d 652, 660 (7th Cir.

2008); United States v. Clay

, 524 F.3d 877, 878

‐ 79 (8th Cir. 2008); United States v. Crawford

, 520

F.3d 1072, 1075 (9th Cir. 2008); United States v. Jimenez

, 512 F.3d 1, 8

‐ 9 (1st Cir. 2007).

There is one caveat. We have also recently considered whether sentencing courts

may use their discretion under Kimbrough not to disregard the career

‐ offender guideline, but

to issue a below

‐ guidelines sentence after correctly applying the career

‐ offender penalty.

See Liddell

, No. 07

‐ 3373, at *4. In Liddell

, we concluded that they can. Id. at *6 (observing

that career

‐ offender guidelines are advisory and that after Kimbrough district courts may

consider crack/powder disparity when resentencing career offenders). In the district court,

Jackson anticipated Liddell by asking the court to apply § 4B1.1 “on paper” and then exercise

its discretion under Booker to go below the career

‐ offender range and sentence him as if he

was not a career offender. Jackson has not pursued this argument on appeal, however, and

in any event the district court concluded that a below

‐ guidelines sentence would be

inappropriate. Even after Liddell that conclusion is not unreasonable. See United States v.

Otero

, 495 F.3d 393, 401

‐ 02 (holding that a sentence within a properly calculated guidelines

range is presumptively reasonable).

AFFIRMED.