United States of America v. Johnny Gunter, Appellant, 462 F.3d 237 (3d Cir. 2006)

Johnny Gunter was convicted, inter alia, of possession with intent to distribute cocaine base ("crack") and sentenced to a 295-month prison term. He argues on appeal that the District Court erred in ruling that it could not, as a matter of law, impose a sentence below that of the applicable federal Sentencing Guidelines range for offenses involving crack cocaine. For the reasons provided below, we vacate Gunter's sentence, and remand this case to the District Court for resentencing.

On February 3, 2004, detectives found Gunter in a motel in West Reading, Pennsylvania with 72.5 grams of crack and a .25 caliber firearm loaded with six rounds of ammunition. As a result, Gunter was indicted in the United States District Court for the Eastern District of Pennsylvania for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a) (1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g) (1)). Following a three-day jury trial, he was convicted on all charges.

The presentence report ("PSR") calculated Gunter's advisory Guidelines range. The 72.5 grams of crack found in Gunter's possession generated a base offense level of 32. See U.S.S.G. § 2D1.1(c) (4) (instructing that offenses involving 50 but less than 150 grams of crack have an offense level of 32). An additional two levels were added because the motel where the crack was recovered was within 1,000 feet of a school (West Reading Elementary School). See id. § 2D1.2(a) (1). When combined with a criminal history category of V, Gunter's total offense level of 34 yielded a sentencing range of 235-293 months. Gunter also was exposed to a consecutive 60-month term because he used or carried a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c) (1) (A) (ii). Accordingly, his aggregate Guidelines range was calculated as 295-353 months' incarceration.

Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including what he claimed was the unjustifiable "disparity"¹  created by the longer sentences recommended for offenses involving crack cocaine compared to those recommended for offenses involving powder cocaine. He accurately explained that, had his offense conduct involved powder — rather than crack — cocaine, his sentencing range would have been 111-123, instead of 295-353, months' imprisonment. Gunter grounded his contention that the Court had discretion to sentence at less than the Guidelines range for his crack offenses because of the Supreme Court's ruling in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The District Court rejected that argument, ruling that the 100:1 crack/powder cocaine differential in the Guidelines was a determination left to Congress, not to sentencing judges, and thus he was bound to follow it in setting the sentence. Specifically, the Court responded to Gunter's request for a below-Guidelines sentence due to the differential by noting as follows:

[D]oesn't a sentencing Court have to respect the congressional intent with respect to sentencing for crack versus powder cocaine, and to take a position that does not recognize what Congress clearly intended, wouldn't that be a legislative act by a Court as opposed to a judicial act? I don't think the provisions that Congress has put up there for a Court to decide to consider suggest that the Court can second guess Congress' well spelled out intent with respect to sentencing. I don't think I can call it sentencing — I don't think I can say that there should not be a sentencing disparity.

App. at 55-56.

As previously mentioned, the Court sentenced Gunter at the low end of the Guidelines range calculated for his aggregate offenses — 295 months' imprisonment. Gunter never argued that the Court had incorrectly calculated his Guidelines range. Rather, he asked it to sentence him below his correctly calculated range because of the form of the drug involved in these offenses. This leads us to believe that the Court viewed the crack/powder cocaine differential in the Guidelines as mandatory in imposing Gunter's sentence. If so, is its interpretation correct as a matter of law?² 

A. Background: Federal Crack Cocaine Sentencing

As courts and commentators have explained on numerous occasions, the sentencing contrast for crack and powdered cocaine offenses debuted in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified at 21 U.S.C. § 841) ("Act"). The Act created two tiers of mandatory sentencing ranges for drug offenses. Id. § 1002 (codified at 21 U.S.C. § 841(b) (1)). The lower tier spans periods of imprisonment ranging generally from a mandatory minimum of five years to a maximum of forty years; the higher tier spans periods of imprisonment ranging generally from a mandatory minimum of ten years to a maximum of life. Id. These minimum prison terms are triggered exclusively by the quantity and type of drug involved in the offense. Though it is undisputed that crack and powder cocaine are pharmacologically indistinguishable,³  Congress set dramatically different penalty structures for each, requiring one hundred times more powdered cocaine than crack cocaine to trigger inclusion in a particular range. Id. For example, a crack cocaine distribution conviction involving 5 grams yields a 5-year mandatory minimum sentence, while a distribution conviction involving 500 grams of cocaine powder is required to trigger the same 5-year sentence. Id.⁴ 

The sentencing difference between crack and powder cocaine was based on Congress's determination that crimes involving crack pose a more serious societal danger than crimes involving powder cocaine. See U.S. Sentencing Comm'n, Special Report to Congress: Cocaine and Federal Sentencing Policy 117-18 (1995), http://www.ussc.gov/crack/exec.htm ("1995 Report"). Specifically, "legislators believed that crack is more addictive than powder cocaine, that it causes crime (psychopharmacological, economic-compulsive and systemic), that it has perilous physiological effects such as psychosis and death, that young people are particularly prone to becoming addicted to it (`students will be faced with the temptations of crack and other drugs during their school years') and that crack's low cost per dose and ease of manufacture would lead to even more widespread use of it." William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L.Rev. 1233, 1252 (Winter 1996) (internal citations omitted); see also United States v. Pho, 433 F.3d 53, 55 (1st Cir. 2006) (citing 1995 Report at 118) (explaining that "Congress found that crack cocaine was more likely to (i) induce addiction; (ii) correlate with the incidence of other serious crimes; (iii) implicate especially vulnerable members of society; (iv) cause deleterious physiological effects; and (v) attract youthful users").

Shortly after passage of the Anti-Drug Abuse Act, the United States Sentencing Commission incorporated the statutorily established difference in punishment between crack and powder cocaine offenses into the federal Sentencing Guidelines. See U.S.S.G. § 2D1.1(c); Spade, supra, at 1249. As the First Circuit Court of Appeals explained,

[t]he Commission built the base offense levels for crimes involving crack and powdered cocaine around the threshold quantities set by Congress. This architectural decision comported with Congress's discernible intent. See 28 U.S.C. § 994(i) (5) (requiring the Commission to "specify a sentence to a substantial term of imprisonment" for offenders convicted of "trafficking in a substantial quantity of a controlled substance"). Consistent with its congressionally imposed obligation to "reduc [e] unwarranted sentence disparities," id. § 994(f), the Commission also fixed the guideline sentences for offenses involving non-threshold quantities of crack and powdered cocaine in accordance with the 100:1 ratio. See generally USSG § 2D1.1, cmt. (backg'd.) (concluding that "a logical sentencing structure for drug offenses" requires coordination with mandatory minimum sentences). Thus, while Congress designed the 100:1 ratio to operate at the minimum and maximum poles of the mandatory statutory sentencing ranges, it was the Commission that incorporated the ratio root and branch into its calculation of every cocaine offender's guideline sentencing range . . . .

Pho, 433 F.3d at 55 (emphasis added).

The Sentencing Commission revisited the 100:1 ratio for the first time on a directive from Congress to study federal sentencing policy as it relates to possession and distribution of all forms of cocaine, see Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280006, 108 Stat. 1796, 2097 (1994). In its 1995 Report, the Commission candidly conceded that "a review of the relatively sparse empirical evidence available concerning those factors Congress considered in distinguishing crack from powder cocaine leads to mixed conclusions and few clear answers." See 1995 Report at 195. " [E]ven while agreeing that crack may be more harmful than powder cocaine, the Commission [was] not prepared . . . to say definitely how that additional harm should be accounted for within the current penalty scheme." Id. "Nevertheless, [it] firmly conclude [d] that it [could] not recommend a ratio differential as great as the current 100-to-1 quantity ratio." Id. at 196; see also id. at 198 (stating " [t]he Commission strongly recommends against a 100-to-1 quantity ratio").⁵  The Commission informed Congress that the crack/powder cocaine differential needed to "be re-examined and revised," id. at 197, and that it intended to provide a more comprehensive review after further investigation. Id. at 198-200.

Shortly after issuance of the 1995 Report, the Commission recommended that Congress approve amendments to the Sentencing Guidelines abrogating any differential between the penalties mandated for crack and powder cocaine offenses. Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 60 Fed.Reg. 25,074, 25,077 (May 10, 1995) (stating that "the Commission has concluded that . . . the different offense levels based solely on the form of cocaine are not required"); see id. at 25,075-25,076. The proposed amendments equalized sentences for offenses involving similar amounts of crack cocaine and powder cocaine at the level provided for powder cocaine.

Congress held hearings concerning the suggested amendments but ultimately rejected the Commission's recommendations. See Pub. L. No. 104-38, 109 Stat. 334, 334 (1995). Its refusal to adopt the amendments was premised primarily on its determination that "the evidence overwhelmingly demonstrates significant distinctions between crack and powder cocaine." H.R.Rep. No. 104-272, at 3 (1995), reprinted in 1995 U.S.C.C.A.N 335, 337.

Two years after the proposed changes were rejected and after "deliberat [ing] carefully over federal cocaine sentencing policy," "assess [ing] the concerns raised by Congress," "conduct [ing] new research, consult [ing] with law enforcement and substance abuse experts," and "review [ing] all of the Commission's prior research and analysis," the Commission issued another report concerning the crack/powder cocaine sentencing differential. See U.S. Sentencing Comm'n, Special Report to Congress: Cocaine and Federal Sentencing Policy (1997) 1, http://www.ussc.gov/r_congress/NEWCRACK.PDF ("1997 Report"). In that report, the Commission unanimously advocated that Congress replace the 100:1 ratio with a 5:1 ratio "by changing the quantity levels that trigger mandatory minimum penalties for both powder and crack cocaine." Id. at 2 (" [F]or powder cocaine, the Commission recommends that Congress reduce the current 500-gram trigger for the five-year mandatory minimum sentence to a level between 125 and 375 grams, and for crack cocaine, that Congress increase the current five-gram trigger to between 25 and 75 grams."). The Commission's recommendations received little support in Congress, which ultimately took no action.

Undaunted, the Commission issued a third report addressing the 100:1 differential in 2002. See U.S. Sentencing Comm'n, Report to Congress: Cocaine and Federal Sentencing Policy (2002), http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf ("2002 Report"). It reiterated that reform was necessary and explicitly criticized the status quo: " [T]he Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act [of 1984] and the [Anti-Drug Abuse] Act." Id. at 91. It further explained that "while there are reasons to punish crack cocaine offenses more seriously than powder cocaine offenses involving equivalent quantities," "a 100-to-1 drug quantity ratio is excessive to account for the differences in harms between the two drugs." Id. at 92-93. According to the report, the underlying rationale that prompted the ratio (including the premise that crack cocaine was more addictive, would lead to a lost generation of "crack babies," and was highly correlated with violent crimes) had been shown over time to be overstated.⁶  Thus, the Commission endorsed a reduction of the crack/powder cocaine sentencing differential from a ratio of 100:1 to one of 20:1. Id. at 107. Congress again deliberated on the Commission's recommendations and again refused to modify or reform the 100:1 differential.

In sum, after three separate reports and proposed amendments to the 100:1 ratio, Congress has kept in force the initial sentencing difference between crack and powder cocaine.

B. Legal Landscape Post-Booker: The Third Circuit

As mentioned above, Gunter relies on Booker for his argument that the District Court had discretion to consider and impose a sentence below the range set in the Guidelines for crack offenses. That decision is described in various opinions of our Court, see, e.g., United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), and we will not go over the same ground in detail here. Simply stated, the Supreme Court delivered two different opinions in Booker, both by five-to-four votes, with the dissenters to each opinion switching sides (Justice Ginsburg providing the tie-breaking vote in each opinion). In the first, or "constitutional," opinion, the Court reaffirmed its state-law holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that " [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the [statutory] maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244, 125 S. Ct. 738. If not, the defendant's Sixth Amendment right to trial by jury is violated. When district judges are permitted by the Sentencing Guidelines, the application of which was mandatory under 18 U.S.C. § 3553(b) (1),⁷  to cross into this forbidden area of judicial fact-finding at sentencing, they are unconstitutional. In the second, or "remedial," opinion, the Court remedied this constitutional violation by excising § 3553(b) (1) from the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 1987 (1984),⁸  thereby rendering the Guidelines "effectively advisory." Id. at 245, 125 S. Ct. 738. Combining these holdings in practice means that district courts may fact-find to increase sentences beyond the Guidelines range provided they are within the statutory minimum and maximum dictated by the United States Code, take into account the relevant sentencing factors set out in 18 U.S.C. § 3553(a),⁹  and ultimately are "reasonable." Id. at 245-61, 125 S. Ct. 738.

Prior to the decision in Booker, our Court routinely upheld the 100:1 differential against constitutional attack, including equal protection claims. See, e.g., United States v. Frazier, 981 F.2d 92, 95-96 (3d Cir. 1992) (per curiam) (holding that distinctions between crack and cocaine powder for sentencing purposes are not an equal protection violation and that the 100:1 ratio is not cruel and unusual punishment); United States v. Jones, 979 F.2d 317, 320 (3d Cir. 1992) (holding Guidelines provisions imposing higher offense levels for offenses involving crack cocaine not to be unconstitutionally vague), superseded by statute as stated in United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).

Since Booker made the Guidelines advisory, we have had only one occasion to revisit the crack/powder cocaine differential, and that was not a precedential opinion: United States v. Scott, 178 Fed.Appx. 140, 2006 WL 1113513, at *4 (3d Cir. Apr.27, 2006) (holding that, given our pre-Booker case law, "it would be inconsistent to require the District Court to give a nonguidelines sentence based on the [crack/powder cocaine] disparity"(emphasis in text; internal quotation marks and brackets omitted)).

Neither our pre- nor post-Booker case law gives the answer here. The pre-Booker decisions are distinguishable because they were decided under a mandatory (and now unconstitutional) sentencing regime, whereas Scott provides little guidance because it is not precedential and, even if it were, it did not reach the question now before us: whether it is legal error for a sentencing court to believe that it must follow the crack/powder differential in the Guidelines when imposing a sentence under the now-advisory Guidelines regime.

C. Legal Landscape Post-Booker: Our Sister Circuit Courts

Several of our sister circuit courts have addressed the crack/powder cocaine sentencing differential post-Booker. The Government depicts the rulings of those courts as follows:

While a handful of district courts, following Booker, have taken it upon themselves to lower guideline ranges for crack offenses based on a perceived unfairness in comparison with sentencing for powder cocaine crimes, this is plainly beyond judicial authority, and the appellate courts to address the matter have unanimously rejected this result. See United States v. Cawthorn, [429 F.3d 793, 802-02] (8th Cir. [] 2005); United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005); United States v. Daniels, 147 Fed.Appx. 869, 870 n. 1 (11th Cir. Sept.2, 2005).

Gov't Br. at 15-16.

This contention is inaccurate for two reasons. First, it is well-documented that, as of the date of the Government's brief, in excess of two dozen district courts (hardly a "handful") have used their Booker discretion to refuse to apply the 100:1 crack/powder cocaine discrepancy. See Judge Michael W. McConnell, The Booker Mess, 83 Denv. U.L.Rev. 665, 683 (2006); see also Ryan S. King & Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After Booker 4-6, 11-19 (January 2006), http://www.sentencingproject.org/pdfs/crackcocaine-afterbooker.pdf (citing and analyzing cases).

Second, and more importantly, the Government's assertion is simply wrong that "the appellate courts [that have] address [ed] the matter" before us "have unanimously rejected" a court's decision to sentence below the Guidelines ranges in crack cocaine cases. See United States v. Williams, 435 F.3d 1350, 1354-55 (11th Cir. 2006) (per curiam) (affirming as reasonable a below-Guidelines sentence of 90 months' imprisonment in a crack case where the value of the crack involved was only $350 and the advisory Guidelines range was 188-235 months' imprisonment).

Moreover, the cases on which the Government relies to advance its argument simply are not on point. For example, it cites United States v. Daniels, 147 Fed. Appx. 869, 2005 WL 2114158 (11th Cir. Sept.2, 2005) (per curiam). There, the District Court sentenced the defendant not below, but within, his advisory Guidelines range. Id. at *1. The Eleventh Circuit affirmed that sentence as reasonable, noting in approval that, in reaching its sentencing determination, the District Court "considered the nature and circumstances of Daniels's `cooperation with the government, the nature of the offense, the drug involved, and "all of the circumstances particular to him."'" Id. (emphasis added). Thus, consideration of the drug involved (i.e., crack cocaine, powder cocaine, heroin, et al.) as a sentencing factor is proper and encouraged in the post-Booker regime. The Government ignores this statement and instead directs the Court's attention to footnote one of the opinion, which states that

Daniels also argues that his sentence was unreasonable based upon the Sentencing Guidelines' disparate treatment of powder and crack cocaine offenses. This argument is foreclosed by our precedent, and therefore . . . is without merit.

Id. at *1 n. 1. This comment does nothing more than restate the obvious, that is, within-Guidelines crack cocaine sentences are not per se unreasonable simply due to the crack/powder cocaine differential. The panel said as much in Scott. 2006 WL 1113513, at *4. Furthermore, the Eleventh Circuit has affirmed a below-Guidelines crack sentence in a precedential opinion decided subsequent to Daniels. See Williams, 435 F.3d at 1354-55. Daniels thus cannot mean what the Government reads it to say: that district courts may never take the Guidelines' crack/powder cocaine differential into consideration and ultimately impose a non-Guidelines sentence.

The Government also relies on United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005) (per curiam). There, the defendant's "sole argument on appeal was that the penalties under the [G]uidelines for crack cocaine as contrasted with powder are `grossly disproportionate,' and therefore his sentence is unreasonable within the meaning of . . . Booker. . . ." Id. at 337. The Seventh Circuit affirmed Gipson's sentence, noting (as the panel did in Scott) that the question in the case "is not whether after Booker a sentencing court may use the differential as a reason to impose a shorter sentence than the one recommended by the [G]uidelines, but rather whether it is error for a court not to have taken the differential into account." Id. What this means is that a sentencing court is required to calculate the crack/powder cocaine difference in determining Guidelines ranges, but is no longer required to consider the Guidelines anything more than advisory in meting out the sentence.

Finally, the Government points to United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005), a case in which the Eighth Circuit rejected the defendant's argument that "it was error for the [sentencing] court not to sentence outside the Guidelines range because it is always unreasonable to treat crack cocaine 100 times worse than powder cocaine." Id. at 802. Cawthorn expressly adopted the reasoning of the Seventh Circuit, stating that, given its prior case law, "it would be inconsistent to require the district court to give a nonguideline sentence based on this differential." Id. at 803. In reaching that conclusion, the Eighth Circuit stressed that the sentencing court had treated the crack/powder cocaine differential as advisory in sentencing Cawthorn:

The district court merely saw the congressional choice [declaring that crack be treated 100 times more severe than powder cocaine] as a factor in the sentence; therefore Cawthorn's argument that the district court treated the crack-powder disparity as mandatory is without merit.

Id. (emphasis added). Unlike in Cawthorn, the District Court here believed that it had no discretion to impose a below-Guidelines sentence on the basis of the crack/powder cocaine differential and, thus, treated the Guidelines range difference as mandatory in deciding the ultimate sentence.

There are additional federal appellate decisions, not relied on by the Government, that are relevant to our analysis. Two are United States v. Pho, 433 F.3d 53 (1st Cir. 2006), and United States v. Eura, 440 F.3d 625 (4th Cir. 2006). The questions presented in Pho and Eura were identical:

May a federal district court, consistent with the teachings of [Booker], impose a sentence outside the advisory [G]uidelines sentencing range based solely on its categorical rejection of the [G]uidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand?

Pho, 433 F.3d at 54 (emphasis added).

The sentencing court in Pho categorically rejected the 100:1 ratio, opting instead for a 20:1 ratio because it "made more sense." Id. at 58. The sentencing court in Eura appears to have done the same. See 440 F.3d at 630-32 & n. 6. The First and Fourth Circuits, respectively, reversed, holding that "a `district court's categorical rejection of the 100:1 ratio impermissibly usurps Congress's judgment about the proper sentencing policy for cocaine offenses.'" Eura, 440 F.3d at 634 (quoting Pho, 433 F.3d at 63). Both Courts were careful, however, to restrict their ruling to "categorical rejections of the 100:1 ratio" so as not to run afoul of Booker. The First Circuit in Pho stated that "we do not intend to diminish the discretion that, after Booker, district courts enjoy in sentencing matters or to suggest that, in a drug-trafficking case, the nature of the contraband and/or the severity of a projected guideline sentence may not be taken into account on a case-by-case basis." 433 F.3d at 65. Picking up on that theme, the Fourth Circuit went on to say:

Of course, it does not follow that all defendants convicted of crack cocaine offenses must receive a sentence within the advisory sentencing range. We certainly envision instances in which some of the § 3553(a) factors will warrant a variance from the advisory sentencing range in a crack cocaine case.

440 F.3d at 634 (emphasis in original); see also United States v. Castillo, 460 F.3d 337, 2006 WL 2374281, at **14-17, 21 (2d Cir. Aug.16, 2006) (rejecting the district court's substitution of a 20:1 ratio for the 100:1 ratio, but emphasizing that it was not holding "that district courts must always sentence within the ratio provided by the Guidelines; that would indeed be error under Booker"); United States v. Jointer, 457 F.3d 682, 2006 WL 2266308, at **3-4 (7th Cir. Aug.9, 2006) (similar).

To recap, federal courts of appeal have unanimously held that (1) Booker does not require sentencing courts to impose below-Guidelines sentences in every crack case due to the crack/powder differential, and (2) sentencing courts may not craft their own ratio as a substitute for the 100:1 ratio chosen by Congress. Contrary to the Government's contentions, no circuit court has held that a sentencing court errs in simply considering the particular form of a drug involved in the offense as one of many individual factors in imposing a sentence. In this context, we decide a limited issue of first impression for our Court: whether the District Court erred as a matter of law in believing it could not sentence below the applicable Guidelines range for offenses involving crack cocaine.

To resolve this issue, we examine Booker and our case law explaining the sentencing process courts are to follow post-Booker.

As others have observed, the separate opinions in Booker establish that there are two types of Booker error. First, a district court could err by relying upon judge-found facts, other than prior convictions, to enhance a defendant's sentence beyond the statutory maximum for the crime the defendant was convicted. Booker, 543 U.S. at 244, 125 S. Ct. 738. The Sixth Amendment prohibits this practice, id., sometimes referred to as "constitutional" Booker error. See, e.g., United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc); McConnell, supra, at 669. Second, a sentencing court could err by applying the Guidelines mandatorily (even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon a prior conviction), as Booker makes them no more than advisory. This is sometimes referred to as "non-constitutional" Booker error. See Gonzalez-Huerta, 403 F.3d at 731-32; McConnell, supra, at 669.

In this context, our post-Booker precedent instructs district courts to follow a three-step sentencing process. See United States v. King, 454 F.3d 187 (3d Cir. 2006).

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker. See id. at 196; see also Cooper, 437 F.3d at 330.

(2) In doing so, they must "formally rul [e] on the motions of both parties and stat [e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak [e] into account [our] Circuit's pre-Booker case law, which continues to have advisory force." King, 454 F.3d at 196.

(3) Finally, they are required to "exercise [] [their] discretion by considering the relevant [§ 3553(a)] factors," id. at 194 (quoting Cooper, 437 F.3d at 329), in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.¹⁰ 

While the District Court complied with steps one and two of our Circuit's post-Booker sentencing procedure, it eschewed (because it believed it must in this case) following through fully with exercising its discretion at step three, notwithstanding Gunter's express request that it do so. In effect, the Court treated the crack cocaine Sentencing Guidelines as mandatory and not advisory. This implicates the second type of Booker error.

The Government urges us to affirm nonetheless, arguing that "reducing the guidelines for crack cocaine would not simply stand as an inappropriate downward departure but would amount to judicial rewriting of binding law." Gov't Br. at 15. If the District Court had simply refused in its discretion to impose a sentence below Gunter's statutory mandatory minimum as prescribed by Congress, we would, of course, agree. That, however, is not what happened here, as Gunter's recommended sentence for his offenses involving crack cocaine was well above the mandatory minimum of ten years required by 21 U.S.C. § 841(b). The District Court did not reject in its discretion imposing a sentence less than the mandatory minimum sentence required by statute; instead, in our view it stated that the 100:1 crack/powder cocaine differential in the Sentencing Guidelines takes away its discretion to sentence at anything less than the minimum range calculated under the Guidelines.

To repeat our earlier quote from Pho, "while Congress designed the 100:1 ratio to operate at the minimum and maximum poles of the mandatory statutory sentencing ranges, it was the Commission that incorporated the ratio root and branch into its calculation of every cocaine offender's guideline sentencing range . . . ." 433 F.3d at 55. The Government fails to appreciate that while the statutory minimum drug trafficking penalty in 21 U.S.C. § 841(b), which reflects the 100:1 crack/powder cocaine ratio (i.e., "binding law"), is mandatory, the-above-the-statutory-minimum Guidelines ranges for drug trafficking penalties, which reflect the same ratio, are not after Booker. 543 U.S. at 245, 125 S. Ct. 738 (excising the mandatory language of 18 U.S.C. § 3553(b) (1) from the Sentencing Reform Act in order to make the Guidelines constitutional under the Sixth Amendment); see McConnell, supra, at 679 (explaining that, post-Booker, " [i]f the statutory penalty applicable to the crime of distributing five kilograms or more of cocaine is ten years to life . . . [,] the district judge . . . could set the sentence anywhere between ten years and life, based on the judge's perception of such factors as the severity of the crime, the defendant's prospects for rehabilitation, the effects on the victims, the defendant's ties to the community or family responsibilities, or whatever other factors he deems relevant"). In other words, once between the minimum and maximum statutory ranges of 21 U.S.C. § 841(b), there is nothing special about the crack cocaine Sentencing Guidelines that makes them different, or less advisory, than any other Guidelines provision.¹¹  Thus, the District Court erred under Booker in treating the crack/powder cocaine sentencing differential incorporated in the Guidelines as mandatory in imposing a final sentence.

Post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines — but not demanded by 21 U.S.C. § 841(b) — as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant § 3553(a) factors). That error occurred here, we believe. Therefore, we vacate Gunter's sentence and remand this case for re-sentencing.

Of course, the District Court is under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential. Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten. The limited holding here is that district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process.