1

The HONORABLE LINDA R. READE, Chief Judge of the United States

District Court for the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4146

No. 05-4156

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeals from the United States

v. * District Court for the

* Northern District of Iowa.

James Eric Moore, *

*

Defendant - Appellant. *

___________

Submitted: February 15, 2008

Filed: March 6, 2008

___________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.

___________

LOKEN, Chief Judge.

A jury convicted James Eric Moore of possession of crack cocaine with intent

to distribute. The district court1

 declined to grant a downward departure or variance

from the advisory guidelines sentencing range and sentenced Moore to 188 months

in prison, the top of that range, followed by six years of supervised release. We

affirmed the conviction and sentence, rejecting Moore’s contention that his sentence

is unreasonable because the district court “refused to take into account the great
2

Effective November 1, 2007, the Commission amended § 2D1.1 to reduce the

sentencing disparity between crack and powder cocaine offenses and later made that

amendment retroactive. See USSG App. C, Amend. 706, 711. 

-2-

disparity” in the penalties imposed on crack and powder cocaine offenders under the

now-advisory Guidelines. United States v. Moore, 470 F.3d 767, 770 (8th Cir. 2006).

The Supreme Court granted Moore’s petition for a writ of certiorari, vacated our

judgment, and remanded for further consideration in light of its recent decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007). Moore v. United States 128 S.

Ct. 858 (2008). We conclude that the district court did not make the error of law

identified in Kimbrough and did not abuse its substantial discretion in imposing a

sentence within the guidelines range. See Gall v. United States, 128 S. Ct. 586, 597

(2007). Accordingly, we again affirm. 

Under § 2D1.1 of the Guidelines, a drug trafficker dealing in crack cocaine is

subject to the same sentence as one dealing in one hundred times more powder

cocaine. This sentencing relationship is commonly referred to, rather misleadingly,

as a “100:1 ratio.” The Sentencing Commission based these provisions on Congress’s

decision to adopt the same ratio in the mandatory minimum sentences for drug

offenses found in 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), (B)(ii) and (iii). See

Kimbrough, 128 S. Ct. at 567. Though the resulting disparity has long been heavily

criticized, Congress until recently rejected numerous Sentencing Commission

proposals to reduce or eliminate it.2

 During the mandatory Guidelines era, we

consistently held that the harsher penalties imposed on crack cocaine offenders were

neither unconstitutional nor a proper basis for a downward departure under the

Guidelines. See United States v. Lewis, 90 F.3d 302, 306 (8th Cir. 1996). 

When the Supreme Court declared the Guidelines advisory in United States v.

Booker, 543 U.S. 220 (2005), some district courts outside this circuit quickly held that

the harsh crack cocaine penalties produced by the 100:1 ratio were a valid basis for

a downward variance from the advisory guidelines range. See, e.g., United States v.
-3-

Perry, 389 F. Supp. 2d 278 (D.R.I. 2005). At the time of Moore’s sentencing in

November 2005, our court had not considered this question. Citing decisions such as

Perry and the Sentencing Commission’s rejected proposals to amend the crack cocaine

guidelines, Moore argued that “a sentence below the Guidelines range is warranted

in view of the unreasonableness of the Guidelines’ treatment of crack cocaine versus

powder cocaine offenders.” The district court responded:

With regard to the crack and powder cocaine difference, that is the law.

I’m applying the law as it currently stands. If that is going to be

changed, that is a congressional matter. Congress is the one who looks

at the guidelines and decides whether or not they should be put in -- in

force. . . . I’ll be following what Congress has approved, which are the

current guidelines that make that differentiation. 

The district court then correctly calculated the guidelines range sentence, which

included an enhancement for obstruction of justice because Moore lied repeatedly in

testifying at trial and at the sentencing hearing. After considering each of the

sentencing factors in 18 U.S.C. §§ 3553(a)(1) and (2), the court declined to depart

downward or to grant a downward variance because “[t]his is not an atypical case or

an atypical defendant.” Noting that Moore committed this offense while on

supervised release from a prior drug conviction, “has a long criminal history dating

back to age twelve,” and has the ability to work but has not worked steadily, the court

imposed a 188-month sentence, the top of the advisory guidelines range. 

One week after Moore was sentenced, we rejected the argument that Booker

mandates a variance from the guidelines range because the crack-powder sentencing

disparity is inherently unreasonable. United States v. Cawthorn, 429 F.3d 793, 802-03

(8th Cir. 2005); see United States v. Tabor, 439 F.3d 826, 830-31 (8th Cir. 2006). But

three weeks later, another judge in the Northern District of Iowa held that the 100:1

ratio is inherently unreasonable and granted a downward variance based on an

alternative range calculated by using a 20:1 ratio. The government appealed that
-4-

sentence and, to avoid the prospect of inconsistent panel decisions on this recurring

question, we granted initial en banc consideration and reversed, joining many other

circuits in rejecting a downward variance based solely on the district court’s

categorical rejection of the 100:1 ratio. United States v. Spears, 469 F.3d 1166, 1178

(8th Cir. 2006) (en banc). In affirming Moore’s sentence, we relied on the en banc

decision in Spears, which has also been vacated and remanded for further

consideration in light of Kimbrough. Spears v. United States, 128 S. Ct. 858 (2008).

In Kimbrough, the Supreme Court held that, “under Booker, the cocaine

Guidelines, like all other Guidelines, are advisory only” and therefore the court of

appeals erred “in holding the crack/powder disparity effectively mandatory.” 128 S.

Ct. at 564. The Supreme Court did not hold, as the district court held in Spears, that

the crack cocaine guidelines are categorically unreasonable and should therefore be

replaced with a judicial substitute such as the 20:1 ratio. Rather, the Court concluded

that, in making the particularized sentencing determination required by 18 U.S.C.

§ 3553(a), the district court “may consider the disparity between the Guidelines’

treatment of crack and powder cocaine offenses.” Id. Indeed, in concluding that the

sentence in Kimbrough “should survive appellate inspection” under Booker and Gall,

the Court noted that the district court “did not purport to establish a ratio of its own,”

but instead “properly homed in on the particular circumstances of Kimbrough’s case.”

Id. at 575-76. 

In this case, the district court sentenced Moore prior to our en banc decision in

Spears. The court rejected Moore’s contention that the 100:1 ratio, without more,

warranted a downward variance. But the court did not state it had no discretion under

Booker to take the crack/powder guidelines disparity into account in deciding whether

a variance was warranted by the discretionary § 3553(a) factors. As there was then

no circuit authority to the contrary, we presume the district court was aware that

Booker granted it discretion to vary downward based upon the impact of the crack

cocaine guidelines on this defendant, but elected not to exercise that discretion. Cf.
-5-

United States v. Riza, 267 F.3d 757, 759 (8th Cir. 2001). Thus, like the district court

in Kimbrough, the district court here committed no “significant procedural error” in

applying Booker. Gall, 128 S. Ct. at 597. We must also review the substantive

reasonableness of the 188-month sentence. In doing so, the Sentencing Commission’s

long-standing opposition to the 100:1 ratio provides some basis for not applying our

normal presumption that a sentence within the advisory guidelines range is reasonable.

See Kimbrough, 128 S. Ct. at 575. But whether or not the sentence in this case is

presumptively reasonable, the district court’s careful explanation of why the § 3553(a)

factors warranted a sentence at the top of Moore’s advisory guidelines range requires

us to conclude that the sentence is substantively reasonable under “the deferential

abuse-of-discretion standard of review that applies to all sentencing decisions.” Gall,

128 S. Ct. at 598.

For the foregoing reasons, and for the reasons stated in our prior opinion

regarding all other issues raised in these consolidated appeals, the separate judgments

of the district court dated November 21, 2005, are affirmed.

______________________________