SPEARS v. UNITED STATES

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261 OCTOBER TERM, 2008
Per Curiam
SPEARS v. UNITED STATES
on petition for writ of certiorari to the united
states court of appeals for the eighth circuit
No. 08–5721. Decided January 21, 2009
Petitioner Spears was found guilty of conspiracy to distribute, inter alia,
crack cocaine. At sentencing, the District Court determined that the
Federal Sentencing Guidelines’ then-applicable 100:1 ratio between
crack and powder cocaine quantities yielded an excessive sentence in
light of 18 U. S. C. § 3553(a)’s sentencing factors, and thus recalculated
Spears’ offense level based on a 20:1 ratio. The Eighth Circuit reversed
and remanded for resentencing, holding that the District Court was not
authorized to reject the 100:1 ratio and impose a substitute. This Court
vacated that judgment and remanded in light of Kimbrough v. United
States, 552 U. S. 85, which held that under United States v. Booker, 543
U. S. 220, “the cocaine Guidelines . . . are advisory only,” 552 U. S., at
91, and that “it would not be an abuse of discretion for a district court
to conclude . . . that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s purpose, even in a mine
run case,” id., at 110. On remand, the Eighth Circuit again concluded
that the District Court could not categorically reject the Guidelines
ratio and substitute its own based on a policy disagreement.
Held: The Eighth Circuit’s holding conflicts with Kimbrough, which con
sidered and rejected the Circuit’s position. Kimbrough held that, with
respect to the crack cocaine Guidelines, a categorical disagreement with,
and variance from, the Guidelines is not suspect. Indeed, Kimbrough’s
point was to recognize district courts’ authority to vary from the Guide
lines based on policy disagreement and not simply based on an individu
alized determination in a particular case, a point that had already been
established in Booker. That Kimbrough noted that it was “appro
priate” for the District Court not to specify a ratio of its own does not
imply that a district court may not substitute its own ratio for that of
the Guidelines. As a logical matter, rejection of the ratio necessarily
implies adoption of some other ratio to govern the mine-run case.
Certiorari granted; 553 F. 3d 715, reversed and remanded.
Per Curiam.
Steven Spears was found guilty of conspiracy to distribute
at least 50 grams of cocaine base and at least 500 grams of

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262 SPEARS v. UNITED STATES
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powder cocaine, in violation of 21 U. S. C. §§ 841(a)(1),
(b)(1)(A), (b)(1)(B), 846. At sentencing, the District Court
determined that the drug quantities attributable to Spears
yielded an offense level of 38, that his criminal history justi
fied placing him in the Guidelines’ criminal history category
IV, and that the resulting advisory Guidelines sentencing
range was 324 to 405 months’ imprisonment. The District
Court was of the view that the Guidelines’ 100:1 ratio be
tween powder cocaine and crack cocaine quantities, see
United States Sentencing Commission, Guidelines Manual
§ 2D1.1(c) (Nov. 2006) (USSG),* yielded an excessive sen
tence in light of the sentencing factors outlined in 18 U. S. C.
§ 3553(a). Relying in part on decisions from other District
Courts, see United States v. Perry, 389 F. Supp. 2d 278, 307–
308 (RI 2005); United States v. Smith, 359 F. Supp. 2d 771,
781–782 (ED Wis. 2005), which in turn relied on a report
from the Sentencing Commission criticizing the 100:1 ratio,
see United States Sentencing Commission, Report to Con
gress: Cocaine and Federal Sentencing Policy 106–107, App.
A, pp. 3–6 (May 2002) (hereinafter Report to Congress), the
District Court recalculated Spears’ offense level based on a
20:1 crack-to-powder ratio. That yielded an offense level of
34 and a sentencing range of 210 to 262 months’ imprison
ment. The District Court sentenced Spears to 240 months
in prison, the statutory mandatory minimum. See United
States v. Spears, 469 F. 3d 1166, 1173–1174 (CA8 2006) (en
banc) (Spears I).
On cross-appeal, the Government argued that “the district
court erred by categorically rejecting the 100:1 quantity
ratio and substituting its own ratio in calculating Spears’s
sentence. ” Id., at 1174. The Eighth Circuit reversed
Spears’ sentence and remanded for resentencing, holding
that “neither Booker nor § 3553(a) authorizes district courts
to reject the 100:1 quantity ratio and use a different ratio in
*The Sentencing Commission has since reduced the crack-to-powder
ratio. See USSG, Supp. App. C, Amdt. 706 (Nov. 2007).

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sentencing defendants for crack cocaine offenses.” Id., at
1176. This Court vacated the judgment of the Eighth Cir
cuit, and remanded for further consideration in light of Kim
brough v. United States, 552 U. S. 85 (2007). Spears v.
United States, 552 U. S. 1090 (2008).
On remand, the Eighth Circuit again reversed Spears’ sen
tence and remanded for resentencing. 533 F. 3d 715, 716
(2008) (en banc) (Spears II). It concluded, again, that the
District Court “may not categorically reject the ratio set
forth by the Guidelines,” id., at 717, and “ ‘impermissibly var
ied by replacing the 100:1 quantity ratio inherent in the advi
sory Guidelines range with a 20:1 quantity ratio,’ ” ibid.
(quoting Spears I, supra, at 1178). Spears again petitioned
for a writ of certiorari. Because the Eighth Circuit’s deci
sion on remand conflicts with our decision in Kimbrough, we
grant the petition for certiorari and reverse.
In Kimbrough, we held that “under Booker, the cocaine
Guidelines, like all other Guidelines, are advisory only,” 552
U. S., at 91, and that “it 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 purpose, even
in a mine-run case,” id., at 110 (emphasis added). The cor
rect interpretation of that holding is the one offered by the
dissent in Spears II:
“The Court thus established that even when a particular
defendant in a crack cocaine case presents no special
mitigating circumstances—no outstanding service to
country or community, no unusually disadvantaged
childhood, no overstated criminal history score, no post
offense rehabilitation—a sentencing court may nonethe
less vary downward from the advisory guideline range.
The court may do so based solely on its view that the
100-to-1 ratio embodied in the sentencing guidelines for
the treatment of crack cocaine versus powder cocaine
creates ‘an unwarranted disparity within the meaning of

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§ 3553(a),’ and is ‘at odds with § 3553(a).’ The only fact
necessary to justify such a variance is the sentencing
court’s disagreement with the guidelines—its policy
view that the 100-to-1 ratio creates an unwarranted dis
parity.” 533 F. 3d, at 719 (opinion of Colloton, J.) (cita
tions omitted).
Kimbrough considered and rejected the position taken by
the Eighth Circuit below. It noted that “a district court’s
decision to vary from the advisory Guidelines may attract
greatest respect when the sentencing judge finds a particular
case ‘outside the “heartland” to which the Commission in
tends individual Guidelines to apply.’ ” 552 U. S., at 109
(quoting Rita v. United States, 551 U. S. 338, 351 (2007)).
The implication was that an “inside the heartland” departure
(which is necessarily based on a policy disagreement with the
Guidelines and necessarily disagrees on a “categorical basis”)
may be entitled to less respect. Our opinion said, however,
that the “crack cocaine Guidelines . . . present no occasion
for elaborative discussion of this matter because those Guide
lines do not exemplify the Commission’s exercise of its char
acteristic institutional role.” 552 U. S., at 109. Kimbrough
thus holds that with respect to the crack cocaine Guidelines,
a categorical disagreement with and variance from the
Guidelines is not suspect.
That was indeed the point of Kimbrough: a recognition
of district courts’ authority to vary from the crack cocaine
Guidelines based on policy disagreement with them, and not
simply based on an individualized determination that they
yield an excessive sentence in a particular case. The latter
proposition was already established pre-Kimbrough, see
United States v. Booker, 543 U. S. 220, 245–246 (2005), and
the Government conceded as much in Kimbrough. 552
U. S., at 102, n. 13. That the Government did not prevail
in Kimbrough proves that its concession—“that a district
court may vary from the 100-to-1 ratio if it does so ‘based
on the individualized circumstance[s]’ of a particular case,”

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ibid.—understated the extent of district courts’ sentencing
discretion.
In drawing a distinction between “individualized, case
specific” consideration of the Guidelines’ ratio and categori
cal rejection and replacement of that ratio, the Eighth Cir
cuit relied in part, Spears II, supra, at 717, on the following
passage from Kimbrough:
“The [district] court did not purport to establish a ratio
of its own. Rather, it appropriately framed its final de
termination in line with § 3553(a)’s overarching instruc
tion to ‘impose a sentence sufficient, but not greater
than necessary’ to accomplish the sentencing goals ad
vanced in § 3553(a)(2).” 552 U. S., at 111.
This says that it was “appropriate” for the District Court in
Kimbrough not to specify what ratio it was using, but merely
to proceed with § 3553(a) analysis. The Eighth Circuit read
that to mean that district courts, in the course of their indi
vidualized determinations, may not categorically disagree
with the Guidelines ratio, and (consequently) may not sub
stitute their own ratio for that of the Guidelines. If it
meant that, our vacating of the Eighth Circuit’s judgment in
Spears I would have been inexplicable, because that suppos
edly impermissible disagreement and substitution was pre
cisely the reason for Spears I’s reversal of the District Court.
See Spears I, 469 F. 3d, at 1175–1176. As a logical matter,
of course, rejection of the 100:1 ratio, explicitly approved by
Kimbrough, necessarily implies adoption of some other ratio
to govern the mine-run case. A sentencing judge who is
given the power to reject the disparity created by the crack
to-powder ratio must also possess the power to apply a dif
ferent ratio which, in his judgment, corrects the disparity.
Put simply, the ability to reduce a mine-run defendant’s sen
tence necessarily permits adoption of a replacement ratio.
To the extent the above quoted language has obscured
Kimbrough’s holding, we now clarify that district courts are

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266 SPEARS v. UNITED STATES
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entitled to reject and vary categorically from the crack co
caine Guidelines based on a policy disagreement with those
Guidelines. Here, the District Court’s choice of replacement
ratio was based upon two well-reasoned decisions by other
courts, which themselves reflected the Sentencing Commis
sion’s expert judgment that a 20:1 ratio would be appropriate
in a mine-run case. See Perry, 389 F. Supp. 2d, at 307–308;
Smith, 359 F. Supp. 2d, at 781–782; Report to Congress 106–
107, App. A, pp. 3–6.
The alternative approach—adopted by the Eighth Cir
cuit—would likely yield one of two results. Either district
courts would treat the Guidelines’ policy embodied in the
crack-to-powder ratio as mandatory, believing that they are
not entitled to vary based on “categorical” policy disagree
ments with the Guidelines, or they would continue to vary,
masking their categorical policy disagreements as “individu
alized determinations.” The latter is institutionalized sub
terfuge. The former contradicts our holding in Kimbrough.
Neither is an acceptable sentencing practice.
In opposing Spears’ present petition for a writ of certio
rari, the Government contends that the Eighth Circuit’s
opinion stands only for the noncontroversial proposition that
a remand for resentencing was warranted in this case be
cause the District Court did not properly consider all of the
§ 3553(a) sentencing factors. Brief in Opposition 12–13.
But the Government did not present that argument below,
and the Eighth Circuit’s opinion plainly did not rest on that
ground. It concluded instead that “the district court may
not categorically reject the ratio set forth by the Guide
lines.” Spears II, supra, at 717. The Eighth Circuit has
since read its own opinion to mean what it says, see United
States v. Judon, 284 Fed. Appx. 371, 372 (2008) (per curiam),
and so do we. In any event, to the extent the District Court
cut short its sentencing analysis, it did so only because it had
already determined that a mandatory minimum sentence
was required, thus mooting any further arguments for a re

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duced sentence. The decision not to entertain pointless ar
guments hardly constitutes procedural error.
The dissent contends, post, at 269 (opinion of Roberts,
C. J.), that the Eighth Circuit recognized Kimbrough’s core
holding when it stated that in conducting “an individualized
assessment based upon the particular circumstances of a de
fendant’s case, a district court may determine the 100:1 quan
tity ratio results in a harsher sentence than necessary,”
Spears II, 533 F. 3d, at 717. But that was not Kimbrough’s
holding; it was the Government’s position in Kimbrough,
which did not prevail. And it is expressly contradicted by
Kimbrough’s holding that district courts are entitled to vary
from the crack cocaine Guidelines in a mine-run case where
there are no “particular circumstances” that would otherwise
justify a variance from the Guidelines’ sentencing range.
The dissent believes that “[t]his petition involves the argu
ably distinct issue whether district courts that do disagree
with the policy underlying the Guidelines may adopt their
own categorical crack-powder ratios in place of the ratio set
forth in the Guidelines.” Post, at 269. But that is in fact
not distinct from the issue we addressed in Kimbrough. To
say that the judge who considers the 100:1 ratio excessive
cannot apply a different ratio is to say that the Kimbrough
sanctioned district-court disagreement with the 100:1 ratio
cannot honestly be given effect. It is absurd to think that
a sentence which is reasonable in light of the statutory sen
tencing factors, see 18 U. S. C. § 3553(a), becomes unreason
able if the sentencing judge chooses to specify his disagree
ment, and the degree of his disagreement, with the 100:1
ratio, which is the entire basis for his Guidelines departure.
The dissent says that “Apprendi, Booker, Rita, Gall, and
Kimbrough have given the lower courts a good deal to digest
over a relatively short period.” Post, at 270. True enough—
and we should therefore promptly remove from the menu the
Eighth Circuit’s offering, a smuggled-in dish that is indigest
ible. Finally, the dissent points out that other courts have

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268 SPEARS v. UNITED STATES
Roberts, C. J., dissenting
followed the Eighth Circuit’s course, see United States v.
Russell, 537 F. 3d 6, 11 (CA1 2008); United States v. Gunter,
527 F. 3d 282, 286 (CA3 2008). Both of those courts, like the
Eighth Circuit, seized upon the language from Kimbrough
quoted above in order to stand by the course they had
adopted pre-Kimbrough—and in the case of the First Cir
cuit, despite this Court’s having vacated and remanded, in
light of Kimbrough, the prior First Circuit judgment which
had established that course. See Pho v. United States, 552
U. S. 1091 (2008). If the error of those opinions is, as we
think, evident, they demonstrate the need to clarify at once
the holding of Kimbrough.
* * *
The petition for certiorari and the motion for leave to pro
ceed in forma pauperis are granted. The judgment of the
Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy would grant the petition for a writ of
certiorari and set the case for oral argument.
Justice Thomas dissents.
Chief Justice Roberts, with whom Justice Alito
joins, dissenting.
I dissent from the Court’s summary reversal in this case.
As explained by the majority here and the dissenting judges
below, there are cogent arguments that the Eighth Circuit’s
decision was contrary to our decision last Term in Kim
brough v. United States, 552 U. S. 85 (2007). But I do not
think any error is so apparent as to warrant the bitter medi
cine of summary reversal, and I think there are good reasons
not to address the question presented at this time.

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269 Cite as: 555 U. S. 261 (2009)
Roberts, C. J., dissenting
In the decision below, the Court of Appeals recognized
Kimbrough’s core holding that district courts have authority
to depart from the Guidelines based on policy concerns: “In
considering the overall goals of sentencing under [18 U. S. C.]
§ 3553(a) and conducting an individualized assessment based
upon the particular circumstances of a defendant’s case, a
district court may determine the 100:1 quantity ratio results
in a harsher sentence than necessary.” 533 F. 3d 715, 717
(CA8 2008). This petition involves the arguably distinct
issue whether district courts that do disagree with the policy
underlying the Guidelines may adopt their own categorical
crack-powder ratios in place of the ratio set forth in the
Guidelines.
There is at least some language in Kimbrough that seems
to support the Court of Appeals’ holding. In Kimbrough,
we noted with apparent approval that the District Court
“did not purport to establish a ratio of its own.” 552 U. S.,
at 111 (emphasis added). Rather, we held, the District
Court “appropriately framed its final determination in line
with § 3553(a)’s overarching instruction to impose a sentence
sufficient, but not greater than necessary to accomplish the
sentencing goals advanced in § 3553(a)(2).” Ibid. (internal
quotation marks omitted).
Two other Courts of Appeals agree with the Eighth Cir
cuit’s interpretation of this language. See United States v.
Russell, 537 F. 3d 6, 11 (CA1 2008) (emphasizing “the im
portance of individualized, case-by-case sentencing deter
minations, rather than a reliance on generalized ratios”);
United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008) (“[A]
district court may not employ a ‘rubber stamp’ approach
that categorically rejects the crack/powder disparity with
out an individualized assessment of the § 3553(a) factors”).
The majority cites no court of appeals decision contrary to
that of the Eighth Circuit in this case.
This is not the stuff of summary reversal. The majority
may well be correct that its holding today follows from Kim

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270 SPEARS v. UNITED STATES
Roberts, C. J., dissenting
brough, but it is not clear to me that this result was part and
parcel of the holding in that case, especially in light of the
language quoted above.
At the same time, I do not believe this case meets our
normal criteria for plenary consideration. As noted, there
is no split in the lower courts on the question whether a
district court may replace the crack-powder ratio in the
Guidelines with a categorical ratio of the court’s own choos
ing. And, as explained above, I do not think the Court of
Appeals has “so far departed from the accepted and usual
course of judicial proceedings . . . as to call for an exercise of
this Court’s supervisory power.” This Court’s Rule 10(a).
In other words, this is exactly the sort of issue that could
benefit from further attention in the courts of appeals. We
should not rush to answer a novel question about the applica
tion of a 1-year-old decision in the absence of a pronounced
conflict among the circuits.
Apprendi, Booker, Rita, Gall, and Kimbrough have given
the lower courts a good deal to digest over a relatively short
period. We should give them some time to address the nu
ances of these precedents before adding new ones. As has
been said, a plant cannot grow if you constantly yank it out
of the ground to see if the roots are healthy.