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The Honorable Richard W. Goldberg, Judge of the United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3020

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United States of America,

Appellee,

v.

Ricardo Watkins, also known as

Mac,

Appellant.

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Appeal from the United States

District Court for the 

Northern District of Iowa.

[UNPUBLISHED]

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 Submitted: February 13, 2008 

 Filed: May 1, 2008

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Before COLLOTON, GRUENDER, Circuit Judges, and GOLDBERG, Judge.1

 

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PER CURIAM.

This case is before us on remand from the United States Supreme Court for

reconsideration in light of Kimbrough v. United States, 552 U.S. ---, 128 S. Ct. 558

(2007). After reconsidering Ricardo Watkins’s sentence as directed by the Supreme
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The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

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Court, we find that the district court2

 did not commit the procedural error identified

in Kimbrough and did not abuse its substantial discretion in imposing a life sentence.

See Gall v. United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007). We again affirm.

A jury found Watkins guilty of conspiracy to distribute or possess with intent

to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A) and 846, and of distributing less than five grams of cocaine base,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). In his sentencing memorandum,

Watkins requested a downward variance from the advisory guidelines range because

he was not arrested until 2005 for his alleged actions during the mid to late 1990s; he

was influenced by gang activity when he grew up in Chicago; he was close to his two

children, his mother, and her husband; he had a construction business in Chicago; he

maintained a B average in college; and he was not currently engaged in drug-related

activity. Watkins also argued that a sentence within the advisory guidelines range

would create unwarranted sentencing disparities with the other defendants involved

in the conspiracy. In a supplemental sentencing memorandum, Watkins argued that

the district court should vary downward from the advisory guidelines range because

of the sentencing disparity created by the 100:1 ratio between crack and powder

cocaine in the United States Sentencing Guidelines. 

At the sentencing hearing, the district court heard arguments from Watkins and

the Government. The district court then thoroughly discussed the factors in 18 U.S.C.

§ 3553(a) as applied to Watkins, including the nature and circumstances of his

offense; his history and characteristics; the need to impose a sentence that reflects the

seriousness of the offense, affords adequate deterrence to criminal conduct, protects

the public from further crimes, and provides Watkins with needed educational or

vocational training, medical care, or correctional treatment in the most effective
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We now reinstate the vacated opinion, with the exception of footnote eight.

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manner; the kinds of sentences available; the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct; and a finding that restitution was not an issue in Watkins’s case. The

district court then stated:

On the issue of variance, the Court is aware that it does have the power

to vary from an advisory guideline sentence. Certainly, the sentencing

guidelines are not mandatory. . . . I have carefully considered the

arguments made by the defendant in this case, and I decline to vary after

studying them. To vary would, in my opinion, run afoul of the statutory

factors at 18 United States Code Section 3553(a).

Sent. Tr. at 54. The district court denied Watkins’s motion for a new trial and

sentenced him to life in prison, a sentence within the advisory sentencing guidelines

range. Watkins appealed the district court’s denial of his motion for a new trial and

his sentence. This court affirmed both decisions. See United States v. Watkins, 486

F.3d 458 (8th Cir. 2007), vacated, 552 U.S. ---, 128 S. Ct. 906 (2008). Affirming the

sentence, this court rejected Watkins’s argument that the 100:1 ratio was per se

unreasonable. See id. at 470 n.8.3

 

We again reject Watkins’s argument that a sentence within an advisory

guidelines range based on the 100:1 ratio is per se unreasonable. In Kimbrough, the

Supreme Court held that a district court “may consider the disparity between the

Guidelines’ treatment of crack and powder cocaine offenses,” Kimbrough, 128 S. Ct.

at 564, and further elaborated that “[i]t 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 purposes, even in a mine-run case,” id. at 575. However, “[t]he Supreme

Court did not hold . . . that the crack cocaine guidelines are categorically unreasonable
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As in Moore, Watkins was sentenced prior to our Spears decision, which held

that a district court could not vary downward based solely on its categorical rejection

of the 100:1 ratio, see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en

banc), vacated, 552 U.S. ---, 128 S. Ct. 858 (2008).

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. . . .” United States v. Moore, 518 F.3d 577, 579 (8th Cir. 2008). Thus, we again

reject Watkins’s argument that a sentence based on a 100:1 ratio is per se

unreasonable.

Watkins does not claim that the district court did not believe that it had the

authority to vary based on the disparity created by the 100:1 ratio. Even had he made

such an argument, we would reject it. In reviewing the sentencing transcript, we find

no support for the proposition that the district court did not believe it had the authority

to vary based on the crack/powder disparity. As in Moore, the district court “did not

state it had no discretion under [United States v. Booker, 543 U.S. 220 (2005)] to take

the crack/powder guidelines disparity into account in deciding whether a variance was

warranted by the discretionary § 3553(a) factors.” Moore, 518 F.3d at 580. Rather,

the record suggests that the district court rejected all of Watkins’s reasons to vary and

instead chose to impose a guidelines sentence because the § 3553(a) factors it had just

thoroughly discussed simply did not warrant a variance in the particular circumstances

of this case. As there was no circuit authority to the contrary4

 and because the district

court did not suggest that it lacked authority to vary based on the crack/powder

disparity, we presume that the district court knew that such a variance was

permissible. Id. (“[W]e 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.”). Therefore, the district

court did not commit the procedural error identified in Kimbrough. 

Finally, for the reasons discussed in this opinion and our prior opinion, Watkins,

486 F.3d at 470-71, and based on the district court’s thorough analysis of the §

3553(a) factors, we again conclude that the district court did not abuse its substantial
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discretion when it imposed a within-guidelines life sentence on Watkins and that the

sentence is reasonable. See Gall, 128 S. Ct. at 597. As we noted in our prior opinion,

Watkins’s life sentence “was within the range of choice dictated by the facts of the

case.” Watkins, 486 F.3d at 471.

Accordingly, we affirm Watkins’s sentence.

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