UNITED STATES of America, Plaintiff-Appellee, v. Bryan Michael VANDEWEGE, Defendant-Appellant, 561 F.3d 608

MERRITT, J., delivered the opinion of the court, in which KEITH, J., joined. GIBBONS, J. (pp. 610-11), delivered a separate opinion concurring in the judgment. OPINION MERRITT, Circuit Judge. The defendant, who is addicted to cocaine, appeals his 162-month sentence for distribution of cocaine, a significant part of which is attributable to 12.3 grams of crack cocaine found underneath the passenger-side floorboard mat of his car.

On appeal, he contests only the portion of his sentence attributed to the 12.3 grams and, in addition, requests resentencing because of the recent retroactive application of new crack cocaine guidelines, an argument with which the government basically agrees. The defendant himself did not admit or deny knowledge of the 12.3 grams, or that he possessed it for distribution, but his counsel argued that the sentencing court should not attribute it to him because there is no direct evidence that he knew it was under the floor mat of his car or that it was not for personal use.

The defendant does not raise any issue regarding the judge’s authority to make the fact finding, as distinguished from its correctness. We conclude that the sentencing court did not commit clear error when it drew the inference that possession of the crack was part of the defendant’s course of conduct of cocaine distribution. The fact that the defendant, while driving his car with police in pursuit, had just thrown a baggie of powdered cocaine out of the car, supports the inference that he was trying to rid himself of drugs but was unable to reach the crack on the other side of the car and throw it out.

We grant the defendant’s request for resentencing under 18 U.S.C. § 3582(c)(2) because the sentencing range of “his term of imprisonment ... has subsequently been lowered by the Sentencing Commission.” This same provision admonishes the court to consider again “the factors set forth in

section 3553.” We note that the sentencing court instructed the Bureau of Prisons to attempt rehabilitation by treating and trying to cure the defendant’s drug addiction. This § 3582(c)(2) is part of the same subsection that allows courts to modify sentences for compelling reasons upon motion of the Bureau of Prisons. It may be that the Bureau of Prisons will have further information concerning rehabilitation worthy of consideration under § 3553.

In a case similar to the instant case involving retroactive application of the crack cocaine guidelines, the Supreme Court recently clarified “that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those guidelines.” Spears v. United States, 555 U.S. —, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009).

The district court here did not recognize that authority, stating, “I do believe that policy judgments of whether crack and powder are equivalent or not is not for me to make.” As we have recognized, this misunderstanding provides additional grounds to remand the case for resentencing. See United States v. Johnson, 553 F.3d 990 (6th Cir.2009) (vacating defendant’s sentence and remanding for resentencing in light of Spears).

The Supreme Court has made it clear that where a sentencing judge “varies from the Guidelines ... in a mine-run case” based on a policy disagreement or consideration of § 3553 standards, “closer review may be in order.” Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007).

After sentencing, it then becomes the duty of the appellate judge to decide whether “the sentence was reasonable,” as the Supreme Court tells us in Kimbrough at 576: “[t]he ultimate question in Kimbrough’s case is ‘whether the sentence was reasonable — ie., whether the District Judge abused his discretion in determining that the § 3553(

a) factor supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range.’ ” Accordingly, the District Court’s attribution to defendant of the 12.3 grams of crack cocaine was not error, but the case is remanded to the District Court for resen-tencing under 18 U.S.C. § 3582(c)(2).