UNITED STATES of America, Plaintiff-Appellee, v. Marcus L. WELTON, Defendant-Appellant, 583 F.3d 494

BAUER, Circuit Judge. After pleading guilty to distributing crack cocaine, Marcus L. Welton was sentenced as a career offender to 188 months’ imprisonment. On appeal, Welton contends that resentencing is necessary in light of the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), which recognized a district court’s authority to consider the sentencing disparity between crack and powder cocaine offenses in fashioning a sentence. We affirm. I.

BACKGROUND On two separate occasions in the Summer of 2007, Welton sold crack cocaine totaling approximately 41 grams to an undercover agent with the Madison, Wisconsin Police Department. Welton pleaded guilty to a single count of distributing more than five grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Under the Sentencing Guidelines, Welton qualified as a career offender based on two prior felony drug convictions. See U.S.S.G. § 4Bl.l(a).

After a three-level reduction for acceptance of responsibility, Welton’s total offense level was 31, which, when paired with a criminal history of VI, yielded an advisory Guidelines range of 188-235 months. At his .sentencing hearing, Welton requested a below-Guidelines sentence based on the crach/powder cocaine disparity. Welton acknowledged that he met the technical definition of a career offender, but argued that the designation and resulting range were too severe in his case. The district court dismissed Welton’s argument based on the severity of the crack/powder disparity.

The court also rejected Welton’s claim that he was unfairly subject to career offender penalties; the court noted Welton’s extensive criminal history, including two prior drug trafficking convictions and numerous misdemean- or convictions that resulted in a criminal history category of VI. The court also noted that the Guidelines were advisory and that it would consider the factors in 18 U.S.C. § 3553(

a) when sentencing Welton. Ultimately, the court found that a term of imprisonment of 188 months was reasonable and no greater than necessary to hold him accountable, protect the community, provide opportunity for rehabilitative programs, and achieve parity with the sentences of similarly situated offenders. Welton filed a timely appeal. II. DISCUSSION Welton argues that the district court should have considered the Guidelines’ crack/powder disparity as a basis for imposing a below-Guidelines sentence even though he was sentenced as a career offender.

He argues that the Supreme Court’s decision in Kimbrough, which held that the disparity between crack and powder cocaine is advisory and therefore within a district court’s discretion to consider, should apply equally to a defendant who is sentenced as a career offender. See Kimbrough, 128 S.Ct. at 564. We review sentences for reasonableness in light of the statutory factors provided by 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); United States v. Padilla, 520 F.3d 766, 771 (7th Cir. 2008).

We presume that a sentence within a correctly calculated Guidelines range is reasonable. United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). In considering what would be a reasonable sentence, the district court must give meaningful consideration to nonfrivolous sentencing arguments. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). As Welton notes, a district court may weigh the Guidelines’ disparate treatment of crack and powder cocaine as part of its consideration of § 3553(a)(6), the need to avoid sentencing disparities. Kimbrough, 128 S.Ct. at 564.

Kimbrough explained that a district court may generally consider policy disagreements with the advisory Guidelines, provided that the Court does not disregard statutes such as mandatory mínimums and máximums. See id. at 570-71. Since the Guidelines’ crack/powder disparity does not result from a Congressional mandate, see id. at 571-72, a district court may determine that a within-Guideline sentence is greater than necessary to serve the objectives of sentencing. See id. at 575. Here, Welton contends that Kimbrough’s, holding should be extended to include defendants sentenced as career offenders.

But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory máximums.

This asks more of a sentencing court than it can deliver because, “while the Sentencing Guidelines may be only advisory for district judges, congressional legislation is not.” United States v. Harris, 536 F.3d 798, 813 (7th Cir.2008). We have been down this road before. In Hams, we held that Kimbrough has no effect on a sentence entered under the career offender Guideline, § 4B1.1. Harris, 536 F.3d at 813; see also United States v.

Millbrook, 553 F.3d 1057, 1067 (7th Cir.2009) (“Kimbrough’s discussion of a district court’s discretion to take into account the crack/powder disparity is of no consequence to a defendant sentenced under § 4B1.1 as a career offender.”); United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008) (“[A] sentence entered under the career offender Guideline, § 4B1.1, raises no Kimbrough problem .... ” (quoting Hams, 536 F.3d at 813)). It is true that defendants sentenced as career offenders are affected by a policy of harsher sentences for crack offenses because the statutory máximums referenced by § 4Bl.l(

b) retain a 100:1 crack/powder disparity. See 21 U.S.C. § 841 (b)(1)(a)(ii)-(iii) (imposing a maximum sentence of life imprisonment for drug offenses involving both 50 grams of crack and 5 kilograms of powder cocaine). But as we stressed in Harris, the statutory origin of the disparity embedded in § 4B1.1 removes that disparity from the sentencing discretion provided by Kimbrough. Harris, 536 F.3d at 813.

Our focus on the statutory origin of the crack/powder disparity embedded in § 4B1.1 is consistent with other circuits’ views that Kimbrough provides no basis for career offenders to challenge their Guidelines sentence. See United States v. Jimenez, 512 F.3d 1, 8 (1st Cir.2007) (noting that Kimbrough did not benefit a defendant sentenced as a career offender); United States v.

Vazquez, 558 F.3d 1224, 1228 (11th Cir.2009) (declining to read Kimbrough “to suggest that district courts may base their sentencing decisions on any disagreement they may have with the policy behind the career offender Guidelines, which are directly driven by Congressional pronouncement”); cf. United States v. Sanchez, 517 F.3d 651, 664-65 (2d Cir. 2008) (observing that while 28 U.S.C. § 994(

h) does not require a district court to sentence a career offender “at or near the statutory maximum,” the court is not “free to ignore the Congressional policy reflected in that section”). In his brief, Welton urges us to resolve what he considers to be an “intra-circuit split” on this issue, arguing that our decision in Harris is in conflict with United States v. Hearn, 534 F.3d 706 (7th Cir. 2008). Welton correctly notes that in Hearn, we remanded Hearn’s case for reconsideration in light of Kimbrough, notwithstanding the fact that Hearn had been sentenced as a career offender. Hearn, 534 F.3d at 714-15.

But Welton fails to place Hearn in its proper context. Before Kimbrough, our circuit precedent prevented district courts from considering the crack/powder disparity as a basis for choosing a below-Guidelines sentence. See United States v. Miller, 450 F.3d 270, 274-75 (7th Cir.2006). After Kimbrough, we established remand procedures for crack offenders who, like Hearn, were sentenced prior to Kimbrough. In cases in which the crack/powder disparity challenge had been preserved, we granted a full remand. See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir.2008).

In cases where the challenge had not been preserved adequately, we permitted a limited remand in order to allow the district court to indicate whether it would have selected a different sentence had it known of its discretion. Id. It is true that our decision in Hearn assumed, without deciding, that Kimbrough applied to defendants sentenced as career offenders. Hearn, 534 F.3d at 714-15. However, Hearn pre-dated Harris, in which we explicitly found that Kimbrough does not apply to defendants sentenced under the career offender Guideline.

Moreover, in light of our decision in Harris, we granted the government’s petition for rehearing in Hearn and held that a remand was not required despite the sentencing disparity for crack cocaine. United States v. Hearn, 549 F.3d 680, 684 (7th Cir.2008). Yet, while Hearn does nothing to undercut our holding in Harris, we are aware that one of our recent decisions may appear to do so. In United States v.

Liddell, 543 F.3d 877, 880-82 (7th Cir.2008), Lid-dell advanced a similar argument on appeal as Welton does here: that the district court should have considered the severity of the crack/powder disparity even though he was sentenced as a career offender. Citing Harris, the court first noted that Liddell’s argument was problematic because the only crack/powder disparity that affected his sentence under § 4B1.1 was the product of a statute. Id. at 882-83.

Nonetheless, the court then recognized what it called the defendant’s “more nuanced” argument of whether a district court “can consider the disparity as a reason for issuing a below-guideline sentence.” Id. at 883. This contention was ultimately rejected because Liddell did not raise it below, and any error by the district court in failing to consider his Kimbrough challenge was not plain. Id. at 883, 885.

The discussion in Liddell of a career offender’s Kimbrough argument is admittedly inconsistent with our holding in Harris, causing confusion as to whether a district court may consider the crack/powder disparity as a basis for imposing a sentence outside the career offender Guidelines range. Upon further consideration, we conclude that Liddell’s rationale is irreconcilable with Harris and unsupported by other authority on the scope of the sentencing discretion provided by Kimbrough.

In Liddell, the court under-read Harris as merely reaffirming that Kimbrough “did not change the way court’s calculate career offender guideline ranges.” 543 F.3d at 883. This reading overlooks Harris’ emphatic point that Kimbrough does not authorize a district court to disagree with the statutory authority embedded in § 4B1.1. Harris addressed not whether Kimbrough affects how a district court calculates a sentencing range under § 4B1.1, but whether, given a properly calculated range, Kimbrough allows consideration of the disparity as a mitigating sentencing factor. See Harris, 536 F.3d at 813.

In fact, there was no real doubt in Harris as to whether a district court could alter its Guidelines calculation based on the disparity, see id. at 806 (noting that the defendant did not object to the calculations of his sentencing range under § 4B1.1), since the first step in any sentencing decision is “correctly calculating the applicable Guidelines range,” Gall, 128 S.Ct. at 596. By indicating that a crack career offender Guidelines sentence “raises no Kimbrough problem,” Harris, 536 F.3d at 813, we closed the door on any hope of a crack/powder disparity policy disagreement affecting such a sentence.

We also think that Liddell’s observation that 28 U.S.C. § 994(

h) does not require the imposition of a sentence at or near the applicable statutory maximum, 543 F.3d at 883-84, ignores the fact that this statute nonetheless reflects a Congressional policy with which a sentencing court may not disagree. Indeed, the Supreme Court in Kimbrough cited § 994(

h) as an example of an instance where Congress has expressly incorporated a sentencing policy into the Guidelines. Kimbrough, 128 S.Ct. at 571; see also Vazquez, 558 F.3d at 1228 (“[T]he Supreme Court expressly made a distinction between the Guidelines’ disparate treatment of crack and powder cocaine offenses — where Congress did not direct the Sentencing Commission to create the disparity- — the Guidelines’ punishment of career offenders — which was explicitly directed by Congress.”).

Moreover, the cases from other circuits mentioned in Liddell, see 543 F.3d at 884, provide no support for the concept that a court can do indirectly what a Congressional enactment has precluded them from doing directly. While United States v. Martin, 520 F.3d 87, 96 (1st Cir.2008), and United States v.

Sanchez, 517 F.3d 651, 663 (2d Cir.2008), stand for the proposition that a sentencing court is not required to sentence a crack career offender within the § 4B1.1 range, neither case holds, nor even suggests, that a court can consider the crack/powder disparity in choosing a sentence outside a properly calculated range.

Because the discussion in Liddell relied on a misunderstanding of our prior precedent in Harris and did not adequately recognize that the career offender crack/ powder disparity is the result of a legislative act, we do not believe that Liddell’s suggestion that career offenders may challenge their Guidelines sentence based on the disparity is entitled to precedential value.

To the extent that Liddell is inconsistent with Harris’ holding that a district court may not rely on the 100:1 crack/powder disparity embedded in § 4B1.1 as a basis for imposing a non-Guidelines sentence, we disavow that portion of our decision in that case. To be clear, the fact that a district court may not disagree specifically with the statutory disparity embedded in § 4B1.1 does not mean that the court may only impose a sentence that is within the career offender Guidelines range.

As we cautioned in Harris, our analysis “should not be read to suggest that § 4B1.1 is any less advisory for a district judge than the other sentencing guidelines.” Harris, 536 F.3d at 813; see also Liddell, 543 F.3d at 883-84 (observing that no Congressional statute makes § 4B1.1 mandatory for sentencing courts, and that the Supreme Court has consistently reaffirmed the advisory nature of the Sentencing Guidelines); Martin, 520 F.3d at 96 (upholding a career offender’s below-Guidelines sentence as a permissible deviation from the Guidelines’ policy of punishing recidivism); Sanchez, 517 F.3d at 663 (concluding that “there is no statutory provision instructing the court to sentence a career offender at or near the statutory maximum” in accordance with § 4B1.1).

District courts retain discretion to give career offenders a non-Guidelines sentence based on them consideration of the factors enumerated in § 3553(a). See Millbrook, 553 F.3d at 1067. Welton received a sentence within an appropriately calculated career offender Guidelines range. Kimbrough, which addressed the crack/powder disparity embedded in § 2D1.1, has no effect on Welton’s sentence. Since career offenders have no sentencing challenge based on the severity of the crack/powder disparity, we find that Welton is not entitled to resentencing in light of Kimbrough. III.

CONCLUSION For the reasons set forth above, we Affirm the judgment and sentence of the district court. . Because our decision overrules Liddell, we have circulated it to the full court as required by our Circuit Rule 40(e). Judge Rovner, Judge Wood and Judge Williams voted to hear the case era banc and their dissent follows. The remaining judges in regular active service voted not to hear the case era banc.