Submitted: September 23, 2019
from United States District Court for the Northern District
of Iowa - Dubuque
LOKEN, COLLOTON, and KOBES, Circuit Judges.
Heim pleaded guilty to conspiracy to distribute 500 grams or
more of a mixture containing methamphetamine and 50 grams or
more of actual or "ice" methamphetamine. At
sentencing, the district court determined a base offense level
of 36 because Heim's offense involved between 1.5 and 4.5
kilograms of "ice" methamphetamine. See
USSG § 2D1.1(c)(2), Drug Quantity Table Note (C). This
resulted in an advisory guidelines sentencing range of 262 to
327 months imprisonment. Heim requested that the court vary
downward because his base offense level would only be 32 if
the offense involved between 1.5 and 5 kilograms of a
methamphetamine mixture. See USSG §
2D1.1(c)(4). He noted that two other Northern District of
Iowa judges have announced that they disagree with the
guidelines provision governing actual or ice methamphetamine
and therefore "will calculate an alternative Guidelines
range, starting with a base offense level determined by
reference to the methamphetamine mixture Guidelines."
United States v. Harry, 313 F.Supp.3d 969, 974 (N.D.
Iowa 2018); see United States v. Nawanna, 321
F.Supp.3d 943, 950-55 (N.D. Iowa 2018).
district court denied a variance on this ground, explaining
that (i) while "a judge may vary based on his or her own
personal opinion and disagreement with the advisory
guidelines, I've never sentenced in that fashion,"
(ii) there is a rational basis for treating distribution of
actual methamphetamine as a more serious offense, and (iii)
prior decisions of this court have held that "the
sentencing practices of one district court are not a
reference point for other courts," citing United
States v. Bollinger, 893 F.3d 1123, 1126 (8th Cir.
2018), and United States v. Soliz, 857 F.3d 781, 783
(8th Cir. 2017). The court then granted a downward departure
and sentenced Heim to 170 months, the bottom of the modified
appeals, arguing the district court committed procedural
error by failing to consider that its decision creates
unwarranted sentencing disparities with sentences imposed by
two other Northern District of Iowa judges. The contention
that the district court committed procedural error is
frivolous. Not only did the court carefully explain its
denial of a variance, "when a sentencing judge correctly
calculates and carefully reviews the Guidelines range, [s]he
necessarily gives significant weight and consideration to the
need to avoid unwarranted disparities." United
States v. Velazquez, 726 Fed.Appx. 530, 531
(8th Cir. 2018) (quotation omitted). Thus, Heim's
argument on appeal is a challenge to the substantive
reasonableness of the district court's sentence in light
of "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct." 18 U.S.C. § 3553(a)(6).
Reviewing this issue for abuse of discretion, we affirm.
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. 261, 265-66 (2009). One likely result of such policy
disagreements among district judges is sentencing
disparities, or at least the appearance of sentencing
disparities. See United States v. Feemster, 572 F.3d
455, 467-68 (8th Cir. 2009) (en banc) (Colloton, J.,
concurring). In recent years, numerous defendants have argued
on appeal that a district court erred when it refused to vary
from a guidelines provision for policy reasons. We have
consistently held that, "while a district court may
choose to deviate from the guidelines because of a policy
disagreement," it is "not required to do so."
United States v. Manning, 738 F.3d 937, 947 (8th
Cir. 2014) (quotation omitted); see United States v.
Barron, 557 F.3d 866, 871 (8th Cir. 2009).
district court recognized, we have likewise consistently
rejected a variation on this theme -- that the district court
created unwarranted disparities, contrary to 18 U.S.C. §
3553(a)(6), when it refused to vary from a guidelines
provision that other district judges disagree with as a
matter of sentencing policy. The district court cited two of
our prior cases, Bollinger and Soliz. On
appeal, Heim argues these decisions appear to be
distinguishable because they involved ad hoc "sentences
by other judges," Soliz, 857 F.3d at 783,
whereas here there is a policy disagreement among judges of
the same district court, a disagreement that "will
[a]ffect dozens and then hundreds of defendants."
However, we have previously rejected this same argument:
When the argument is, as in this case, that the district
court's sentence created unwarranted disparities with the
sentences imposed on thirteen unrelated offenders by six
different judges, "there is no principled basis for an
appellate court to say which defendants received the
appropriate sentence." Thus, McElderry's reliance on
§ 3553(a)(6) on appeal is misplaced.
United States v. McElderry, 875 F.3d 863, 865 (8th
Cir. 2017), quoting United States v. Fry, 792 F.3d
884, 893 (8th Cir. 2015), cert. denied, 138 S.Ct.
essentially asking this court to compel the district court to
disagree with a guidelines provision as a matter of
sentencing policy because other sentencing judges have done
so. This is not our proper appellate role in reviewing
sentences imposed under the advisory guidelines.
judgment of the district ...