United States v. Johnson

I respectfully dissent because this disposition is contrary to binding circuit precedent.

Johnson was sentenced to a 120-month term of imprisonment for possession of crack cocaine with intent to distribute. At the sentencing hearing, this exchange occurred between counsel for defendant and the court:

In United States v. Casteneda, 511 F.3d 1246 (9th Cir.2008), the sentencing court similarly stated:

Id. at 1248-49 (alteration in the original). Based on the foregoing colloquy, because the sentencing court’s “statements demonstrate^] that the district court did not foresee the extension of its Booker discretion that would be announced ... in Kimbrough,” we vacated the sentence and remanded for the district court “to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a).” Id. at 1249.

Given the similarity in circumstances, Casteneda controls this case. 1 Because I would vacate the sentence and remand for resentencing in light of Casteneda , I respectfully dissent.

. The majority attempts to distinguish this case from Casteneda by concluding…

MEMORANDUM **

Defendant James Stephon Johnson appeals his 120-month sentence for possessing cocaine base (crack cocaine) with intent to distribute, claiming that his sentence was unreasonable under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). We affirm.

Relying on United States v. Medina Casteneda, 511 F.3d 1246, 1248-49 (9th *605 Cir.2008), Johnson argues that the district court did not recognize its discretion to consider the disparity between crack and powder cocaine under the Sentencing Guidelines. However, the facts of this case distinguish it from Medina Casteneda , in which the district court stated: “ T don’t believe it’s appropriate for the Court to specifically reduce a sentence under 18 U.S.C. [§ ]3553(a) on the basis that the Congress and the U.S. Sentencing Commission are wrong in establishing different penalties for different types of controlled substances.’ ” Id.

In this case, the government conceded at sentencing that the district court had discretion to consider the disparity between crack and powder cocaine under the Sentencing Guidelines. Nowhere did the court indicate that it lacked discretion to consider the disparity. The…