MOORE v. UNITED STATES

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2008
MOORE v. UNITED STATES
on petition for writ of certiorari to the united
states court of appeals for the eighth circuit
No. 07–10689. Decided October 14, 2008
Petitioner Moore was convicted of possessing cocaine base with intent to
distribute. At sentencing, Moore asked the District Court to impose a
sentence below the range calculated under the United States Sentencing
Guidelines in light of the Guidelines’ disparate treatment of crack and
powder cocaine and this Court’s decision in United States v. Booker, 543
U. S. 220. The District Court refused, and the Eighth Circuit affirmed,
holding that neither Booker nor 18 U. S. C. § 3553(a) authorizes district
courts to reject the crack/powder sentencing disparity mandated by
Congress. This Court vacated the judgment and remanded the case
in light of Kimbrough v. United States, 552 U. S. 85, which held that
a judge “may consider the [crack/powder] disparity” when applying
§ 3553(a), “even in a mine-run case.” Id., at 91, 110. On remand, the
Eighth Circuit reaffirmed on the presumption that the District Court
was initially aware of its discretion to vary Moore’s sentence downward,
but elected not to do so.
Held: The Eighth Circuit erred in failing to remand the case to the Dis
trict Court for resentencing under Kimbrough. The District Court’s
comment that Congress, not judges, “looks at the [G]uidelines and de
cides whether or not they should be put . . . in force” showed that the
court did not think it had the discretion later upheld by Kimbrough.
And the Eighth Circuit’s initial decision clearly recognized this, describ
1

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2 MOORE v. UNITED STATES
Per Curiam
ing the District Court as correctly concluding that it was not authorized
to reject the crack/powder disparity.
Certiorari granted; 518 F. 3d 577, reversed and remanded.
Per Curiam.
James Eric Moore was convicted of one count of possessing
cocaine base with intent to distribute, a violation of 21
U. S. C. §§ 841(a)(1) and (b)(1). Given the quantity of crack
cocaine, the presentence report calculated that Moore’s sen
tencing range under the United States Sentencing Guide
lines was 151 to 188 months. At sentencing, Moore asked
the District Court to impose a below-Guidelines sentence in
light of our decision in United States v. Booker, 543 U. S.
220 (2005), and the Guidelines’ disparate treatment of similar
amounts of crack and powder cocaine.
The District Court refused, saying:
“With regard to the crack and powder cocaine differ
ence, that is the law. I’m applying the law as it cur
rently stands. If that is going to be changed, that is a
congressional matter. Congress is the one who looks at
the guidelines and decides whether or not they should
be put in—in force. . . . It isn’t the judges. It’s the law
makers, and I have taken an oath to apply the law, and
that’s what I will do in this sentencing.” App. D to Pet.
for Cert. 55–56.
The District Court sentenced Moore to 188 months of impris
onment and six years of supervised release.
Moore appealed, and the United States Court of Appeals
for the Eighth Circuit affirmed his conviction and sentence.
United States v. Moore, 470 F. 3d 767 (2006). In response
to his claim that the District Court should have considered
the crack/powder disparity, the Court of Appeals held that
“the district court was correct in concluding that ‘neither
Booker nor [18 U. S. C.] § 3553(a) authorizes district courts
to reject’ the powder cocaine to crack cocaine quantity ratio
mandated by Congress and reflected in the Guidelines.” Id.,

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3 Cite as: 555 U. S. 1 (2008)
Per Curiam
at 770 (quoting United States v. Spears, 469 F. 3d 1166, 1176
(CA8 2006) (en banc)). Moore filed a petition for certiorari
with this Court. Pet. for Cert. in Moore v. United States,
O. T. 2007, No. 06–9749.
While Moore’s certiorari petition was pending, this Court
issued its opinion in Kimbrough v. United States, 552 U. S. 85
(2007), concluding that a judge “may consider the disparity
between the Guidelines’ treatment of crack and powder co
caine offenses” when applying 18 U. S. C. § 3553(a), “even in a
mine-run case.” 552 U. S., at 91, 110. We granted Moore’s
petition, vacated the judgment, and remanded the case to
the Eighth Circuit for further consideration in light of Kim
brough. Moore v. United States, 552 U. S. 1090 (2008).
On remand, without new briefing, the Eighth Circuit af
firmed again. 518 F. 3d 577 (2008). This time, the Court of
Appeals concluded that “[a]s there was then no circuit au
thority to the contrary, we presume the district court was
aware that Booker granted it discretion to vary downward
based upon the impact of the crack cocaine guidelines on this
defendant, but elected not to exercise that discretion.” Id.,
at 580.
Proceeding pro se, Moore again petitioned for certiorari,
arguing that the Eighth Circuit’s new characterization of the
transcript is wrong, and that it is “clear that the district
court thought judges had no discre[t]ion to reject” the Guide
lines ratio. Pet. for Cert. 7. The United States agrees that
the Eighth Circuit erred, see Brief for United States 9, and
so do we.
When the District Court said that “[i]t isn’t the judges”
but Congress that “looks at the [G]uidelines and decides
whether or not they should be put . . . in force,” the court
showed that it did not think it had the discretion later upheld
by Kimbrough. App. D to Pet. for Cert. 56. The Eighth
Circuit’s first decision recognized this, describing the Dis
trict Court as “concluding” (correctly under Circuit prece
dent) that it was not “authorize[d] . . . to reject” the crack/

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4 MOORE v. UNITED STATES
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powder disparity. Moore, supra, at 770 (internal quotation
marks omitted). In light of the District Court’s comments
at sentencing, the Court of Appeals should have remanded
the case to the District Court for resentencing under Kim
brough. We express no views on how the District Court
should exercise its discretion at resentencing.
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.