United States v. Santonio Parker

More than four years have passed since King v. United States, 595 F.3d 844,

849-52 (8th Cir. 2010), noted a problematic ambiguity in the career offender

provision of the United States Sentencing Guidelines (U.S.S.G. or Guidelines)

§ 4B1.2(c). The Sentencing Commission has taken no action to resolve the

ambiguity, so once again we face an unsavory choice between two imperfect

interpretations of this Guidelines provision. On the one hand, the government's

interpretation—which makes the most policy sense—would require us to ignore the

rule of lenity and a fair reading of the provision's text. On the other, the defendant

Santonio Parker's interpretation—which accords with the rule of lenity and the plain

text—leads to a result the Sixth Circuit recently condemned, see United States v.

Williams, ___ F.3d ___, ___, No. 12-2108, 2014 WL 2446114, at *10-11 (6th Cir.

June 2, 2014).

Despite our respect for the Sixth Circuit, we do not consider it our court's role

in interpreting criminal statutes or the Guidelines to err on the side of the government,

much less to make policy decisions entrusted to Congress and the Sentencing

Commission. As in King, the ambiguity in this case must benefit the defendant. See

King, 595 F.3d at 852. At the same time, we reaffirm that a district court may fully

account for a defendant's criminal history under 18 U.S.C. § 3553(a) even if the

Guidelines provision's ambiguity masks the defendant's status as a career offender.

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That is exactly what the district court did in this 1 case, correctly calculating a 37 to

46-month Guidelines range and then varying upward to 84 months in prison. We

therefore reject the arguments in both the government's appeal (asserting the sentence

was too short) and Parker's appeal (asserting the sentence was too long), and affirm

the district court's carefully considered sentencing decision.

I. BACKGROUND

Shortly after Congress passed the Fair Sentencing Act of 2010 (Act), Pub. L.

No. 111–220, 124 Stat. 2372 (codified in scattered sections of 21 U.S.C.), Santonio

Parker received a 100-month prison sentence for distributing cocaine base and

possessing at least five grams of cocaine base with intent to distribute, see 21 U.S.C.

§ 841(a). At this initial sentencing, the district court determined over the

government's objection that Parker was not a career offender under U.S.S.G.

§ 4B1.1(a). The career offender provision requires "at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” Id.

Parker concededly had one prior "crime of violence,” and the government pointed to

his 2005 Missouri conviction for violently or forcefully resisting arrest as the second.

Parker's four-year prison sentence for this conviction was imposed on the same day

(January 12, 2005) as a consecutive seven-year prison sentence for a non-qualifying

offense. Relying on King, the district court concluded the resisting arrest conviction

did not qualify as a career offender predicate because it had to be aggregated with the

non-qualifying sentence. The government initially filed a notice of appeal, but then

abandoned its challenge to the district court's career offender decision. We granted

the government's motion to dismiss its appeal.

Nearly two years after Parker's initial sentencing, the Supreme Court extended

the Act's lowered penalties for cocaine base offenses to every defendant, like Parker,

1The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

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sentenced after the Act's effective date. See Dorsey v. United States, 567 U.S. ___,

___, 132 S. Ct. 2321, 2326 (2012). Parker moved to vacate his sentence pursuant to

28 U.S.C. § 2255(a), and the government agreed Dorsey entitled him to resentencing.

The district court granted the motion and vacated Parker's original sentence.

At resentencing, the government revived its theory that Parker qualified for the

career offender enhancement. Once again citing King, the district court stood by its

"ruling . . . at the original sentencing.” After calculating an advisory Guidelines

range of 37 to 46 months in prison, the district court denied Parker's request for a

downward variance based on his positive post-sentencing conduct and partially

granted the government's request for an upward variance. Considering the 18 U.S.C.

§ 3553(a) factors, the district court found Parker's "violent” criminal history was

underrepresented. If not for Parker's non-qualifying 2005 conviction and the

ambiguity in U.S.S.G. § 4B1.2(c), the district court explained, Parker "would be . . .

looking at 188 months” in prison under the Guidelines. After weighing the § 3553(a)

factors, the district court determined "a sentence of 84 months satisfies the statutory

purposes of sentencing.”

Both Parker and the government appeal. We 2 have appellate jurisdiction under

28 U.S.C. § 1291.

II. DISCUSSION

We review the sentence under Gall's familiar abuse of discretion standard, see

United States v. Gall, 552 U.S. 38, 51 (2007). "We begin by 'ensur[ing] that the

district court committed no significant procedural error.'” United States v. Scott, 732

F.3d 910, 917-18 (8th Cir. 2013) (alteration in original) (quoting Gall, 552 U.S. at

2Parker also moves to dismiss the government's appeal on the theory that "the

government has clearly waived their [sic] right to have th[e criminal offender] issue

litigated.” Parker's motion does not implicate our jurisdiction, so we choose to reject

the government's appeal on the merits and dismiss the motion as moot.

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51). Miscalculating the Guidelines range is a "significant procedural error,” Gall, 552

U.S. at 51, and "[w]e review the district court's interpretation and application of the

guidelines de novo,” United States v. Bates, 584 F.3d 1105, 1108 (8th Cir. 2009).

"Once assured the sentence is 'procedurally sound,' we 'consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard[,] . . . .

tak[ing] into account the totality of the circumstances.'” Scott, 732 F.3d at 918

(alterations and omission in original) (quoting Gall, 552 U.S. at 51).

A. Government's Appeal

According to the government, the district court procedurally erred in its

Guidelines calculation by disqualifying Parker for the career offender enhancement,

see U.S.S.G. § 4B1.1(a). According to Parker, the district court correctly applied our

precedent, construing the career offender provision's ambiguity against the

government as required by the rule of lenity. We agree with Parker.

1. Law of the Case

Before turning to the merits of the government's current appeal, we must first

explain why the government's failure to prosecute its earlier appeal does not make the

district court's initial career offender determination "law of the case.”3

The "law of the case” doctrine provides that "when a court decides upon a rule

of law, that decision should continue to govern the same issues in subsequent stages

in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). When a

defendant's "entire sentence” is "set aside” and the defendant receives "a de novo

3Parker incorrectly frames this issue as one of "waiver.” The issue would be

waived only if the government affirmatively agreed at resentencing that Parker was

not a career offender and forfeited only if the government failed to preserve its theory

at resentencing. See, e.g., United States v. McCorkle, 688 F.3d 518, 522 (8th Cir.

2012). Neither term describes the situation here. At resentencing, the government

fully preserved its position that Parker should be sentenced as a career offender.

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resentencing,” the doctrine does not apply to the resentencing. Pepper v. United

States, 562 U.S. ___, ___, 131 S. Ct. 1229, 1251 (2011). "Because a district court's

original sentencing intent may be undermined by altering one portion of the

calculus,” a district court proceeding under § 2255 "may vacate the entire sentence

. . . so that the [district] court can reconfigure the sentencing plan to satisfy the

sentencing factors in 18 U.S.C. § 3553(a).” Id. (internal quotations and alterations

omitted).

Law of the case thus has no role to play here. Parker's § 2255 motion

requested "that his sentence be vacated and he be resentenced in light of Dorsey.”

(Emphasis added). The district court, by granting that motion, "effectively wiped the

slate clean.” Id. Although the district court vacated Parker's sentence "on grounds

unrelated to the” career offender issue, "that fact does not affect our conclusion.” Id.

Parker received a plenary resentencing, so the district court "was not bound by the

law of the case doctrine to apply the” career criminal offender decision "that had been

applied at” Parker's "prior sentencing.” Id.

2. Rule of Lenity

Although the "law of the case” doctrine does not stand in the government's

way, the rule of lenity presents an insurmountable hurdle.

The "venerable rule” of lenity flows in large part from "the fundamental

principle that no citizen should be . . . subjected to punishment that is not clearly

prescribed.” United States v. Santos, 553 U.S. 507, 514 (2008). If "an ambiguous

section of the Sentencing Guidelines may be given either of two plausible readings,”

we must resolve the ambiguity in the defendant's favor. United States v. Rodriguez-

Arreola, 313 F.3d 1064, 1067 (8th Cir. 2002). This "canon of strict construction” has

constitutional underpinnings in both the accused's Fifth Amendment right to due

process and the legislative branch's exclusive Article I "power to define crimes and

their punishment.” United States v. Lanier, 520 U.S. 259, 265 & n.5, 266 (1997). "It

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is founded on the tenderness of the law for the rights of individuals,” and "is perhaps

not much less old than construction itself.” United States v. Wiltberger, 18 U.S. (5

Wheat.) 76, 95 (1820) (Marshall, C.J.).

As we explained in King, 595 F.3d at 850-51, there is a critical ambiguity in

the career offender enhancement's method of counting companion sentences. To be

a career offender, a defendant must have "two prior felony convictions,” U.S.S.G.

§ 4B1.1(a), which requires that "the sentences for at least two [prior] felony

convictions [be] counted separately under the provisions of §[ ]4A1.1(a), (b), or (c).”

Id. § 4B1.2(c). The first step is to "determine whether [prior] sentences are counted

separately or as a single sentence.” Id. § 4A1.2(a)(2). "If there is no intervening

arrest” and "the sentences were imposed on the same day,” the sentences cannot be

counted "separately” but must be counted "as a single sentence.” Id.

Parker's qualifying resisting arrest conviction must be counted as a "single

sentence” together with the non-qualifying companion conviction "imposed on the

same day,” as follows:

For purposes of applying §[ ]4A1.1(a), (b), and (c), if prior sentences are

counted as a single sentence, use the longest sentence of imprisonment

if concurrent sentences were imposed. If consecutive sentences were

imposed, use the aggregate sentence of imprisonment.

Id. Because "consecutive sentences were imposed” for Parker's qualifying and nonqualifying

companion offenses, the district court must "use the aggregate sentence of

imprisonment.” Id. This means Parker's four-year qualifying prison sentence and

seven-year non-qualifying prison sentence become a single eleven-year prison

sentence, which is counted under § 4A1.1(a) because it "exceed[s] one year and one

month.”

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With only this aggregated single sentence counting "under the provisions of

§[ ]4A1.1(a), (b), or (c),” it is unclear whether Parker's underlying resisting arrest

sentence "counted separately” from the non-qualifying sentence under any of those

subsections. Id. § 4B1.2(c). If not, then Parker does not have "two prior felony

convictions” within the meaning of § 4B1.2(c). Even if the district court added an

additional point for the resisting arrest conviction under § 4A1.1(e), a separate point

given under subsection (e) does not count for the career offender enhancement. See

id. § 4B1.2(c) (counting only points given for separate sentences under "§[ ]4A1.1(a),

(b), or (c)” (emphasis added)).

Parker's view is that the qualifying sentence did not receive criminal history

points at all because the points under § 4A1.1(a) were assigned solely to an

aggregated single sentence. Without adding the four-year sentence from the

qualifying offense, the seven-year sentence from the non-qualifying offense was

already long enough to receive the maximum number of points under § 4A1.1(a).

Noting the qualifying offense did not separately add even a single point under

§ 4A1.1(a), (b), or (c), as necessary for § 4B1.2(c) to apply, Parker maintains he is not

a career offender.

In King, we decided "[a]fter considerable study” that Parker's reading "is

consistent with the language of §§ 4B1.2(c) and 4A1.2(a)(2) and also finds support

in the structure of § 4A1.1.” King, 595 F.3d at 850. We again recognized "that

'where prior convictions . . . are to be treated as one sentence for purposes of section

4A1.1(a)-(c), it is not clear whether the individual convictions receive criminal

history points.'” Id. (quoting United States v. Ruhaak, 49 F. App'x 656, 657 (8th Cir.

2002) (unpublished per curiam)). Our decision in United States v. Peters, 215 F.3d

861 (8th Cir. 2000), also supports Parker's reading. There, we recognized that if a

non-qualifying offense receives the maximum "three criminal history points under

section 4A1.1(a),” then companion qualifying offenses will "not receive criminal

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history points under section 4A1.1(a), (b), or (c)” and thus will "not [qualify as] 'prior

felonies' within the meaning of the guidelines.” Id. at 863.

The government offers a different reading. Theorizing that the qualifying

sentence "constituted part of the calculation that determined the number of criminal

history points assigned under § 4A1.1,” the government insists "Parker's 2005

Resisting Arrest felony was counted under § 4A1.1(a) and, therefore, qualifies as a

predicate felony under § 4B1.1.” In Williams, the Sixth Circuit embraced the

government's theory and declared there was "no ambiguity.” Williams, ___ F.3d at

___, 2014 WL 2446114, at *10. Of course, we previously rejected the government's

theory in King, so we could not agree with the Sixth Circuit even if Williams

persuaded our panel. See, e.g., United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir.

2002).

Attempting to distinguish King, the government emphasizes that case involved

concurrent sentences. But King's logic is equally applicable to consecutive sentences

like Parker's. Compare the following examples, each involving companion

qualifying and non-qualifying convictions:

1. Defendant A receives identical concurrent sentences—the situation in

King. Because it is impossible to say which conviction receives separate

points under § 4A1.1(a)-(c), lenity applies and the qualifying conviction

does not count. See King, 595 F.3d at 852.

2. Defendant B receives a longer concurrent sentence on the qualifying

felony. Under § 4A1.2(a)(2), only the longer qualifying felony sentence

would be counted under § 4A1.1(a)-(c). Thus, the qualifying felony would

be "separately” counted because the non-qualifying felony is ignored for

the purposes of § 4A1.1(a)-(c).

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3. Defendant C receives a consecutive sentence on the qualifying felony but

the non-qualifying sentence alone is long enough to earn as many points as

the two sentences combined—the situation here. Under § 4A1.2(a)(2), the

sentences for both convictions are aggregated, meaning the qualifying

felony sentence is not "counted separately” from the non-qualifying

sentence under § 4A1.1(a)-(c).

These examples show that if the sentences are concurrent, it is possible for the

qualifying felony to count separately from the non-qualifying felony: the longer

sentence alone receives points under § 4A1.1(a)-(c). But if the qualifying and nonqualifying

sentences are consecutive and the non-qualifying sentence is long enough

to earn as many points under § 4A1.1(a)-(c) as the entire "aggregate sentence,” it is

unclear whether the underlying qualifying offense receives any points of its own

under those subsections. See U.S.S.G. § 4A1.2(a)(2); King, 595 F.3d at 850.

In King, we found "[i]mplicit in [§ 4A1.1(e)] the core premise of” Parker's

"argument—that not every offense within a group of related prior sentences

necessarily 'receive[s]' the points ascribed to the group under subsections (a)-(c).”

King, 595 F.3d at 850 (third alteration in original). Subsection (e) instructs the

district court to "[a]dd 1 point for each prior sentence resulting from a conviction of

a crime of violence that did not receive any points under (a), (b), or (c) . . . because

such sentence was counted as a single sentence.” U.S.S.G. § 4A1.1(e); see, e.g.,

United States v. Tolbert, No. 13-1972, 2014 WL 1929483, at *3 (7th Cir. May 15,

2014) (unpublished per curiam order) ("The purpose of § 4A1.1(e) is to add criminal

history points for crimes of violence that are not counted under § 4A1.1(a), (b), or

(c)”). Subsection (e) expressly recognizes that an aggregated crime of violence may

not "receive any points under (a), (b), or (c).” U.S.S.G. § 4A1.1(e). According to

Parker, that is exactly what happened in this case: his resisting arrest sentence was

part of a "single sentence,” id., long enough to earn the maximum points under

§ 4A1.1(a) even without adding his qualifying sentence. Therefore, the underlying

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sentence did not count separately from the non-qualifying offense by "receiv[ing] any

points under (a), (b), or (c),” id. See U.S.S.G. § 4A1.1(a); King, 595 F.3d at 850.

Parker's "reading of the guidelines is plausible.” King, 595 F.3d at 850. The

rule of lenity therefore compels us to give him the benefit of his reading. See United

States v. Oetken, 241 F.3d 1057, 1060 (8th Cir. 2001).

3. Policy

Despite the rule of lenity, the government protests that accepting Parker's

plausible reading of the career offender guidelines leads to the perverse result that

some defendants may evade the career offender enhancement by committing more

crime—so long as the extra crime does not qualify and results in a consecutive

sentence. We recognize and share the government's concern. But in the words of

Justice Cardozo, a judge "is not a knight-errant, roaming at will in pursuit of his own

ideal of beauty or of goodness.” Benjamin N. Cardozo, The Nature of the Judicial

Process 141 (1921). As appellate judges, we must follow the law, not make

categorical sentencing policy decisions reserved for Congress and the Sentencing

Commission.

The rule of lenity requires us to err on the side of the comparatively powerless

defendant, not the government—"'the richest, most powerful, and best represented

litigant to appear before us.'” Greenlaw v. United States, 554 U.S. 237, 244 (2008)

(quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (R.S. Arnold,

J., concurring in denial of reh'g en banc)).

We cannot join the Sixth Circuit in brushing aside a real ambiguity in the

career offender provision. Seeking to avoid what it termed a "ridiculous result,” the

Sixth Circuit decided with little analysis that "§ 4B1.2 says nothing regarding the

scoring of multiple crimes within a single predicate episode.” Williams, ___ F.3d at

___, 2014 WL 2446114, at *10-11. That reading may be plausible. But as we

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explained "[a]fter considerable study,” it is not the only plausible reading consistent

with § 4B1.2's text, structure, and purpose. King, 595 F.3d at 850.

The Sixth Circuit's other criticisms of King are similarly unpersuasive.

Williams directs the reader's attention to an obvious and undisputed point: "Each of

[the defendant's] convictions, including his [qualifying] conviction . . . ,

independently supports the assessment of criminal history points under § 4A1.1(a),

(b), or (c),” Williams, ___ F.3d at ___, 2014 WL 2446114, at *10 (emphasis added).

Next sentence, Williams changes direction, saying, "Section 4B1.2 requires no more.”

Id. What this change misses is the unambiguous text of § 4B1.2, which does require

more. It is not enough that a conviction could independently (i.e., in the absence of

companion convictions) count under § 4A1.1(a)-(c). The conviction must actually

count. See U.S.S.G. § 4B1.2(c) (allowing the enhancement only if "the sentences . . .

are counted separately” (emphasis added)).

The Sixth Circuit then observes that a district court "calculating [a defendant's]

criminal history category . . . would never conclude that simply because neither

[companion] sentence” is clearly counted separately by § 4A1.1(a)-(c), a defendant

"should be assessed no criminal history points at all.” Williams, ___ F.3d at ___,

2014 WL 2446114, at *10. The inapplicability of that observation—relating to the

entirely different issue of the criminal history calculation—is self-evident. "Certainly

all felonies are 'counted' in the sense that they are subject to the rules for calculating

criminal history.” King, 595 F.3d at 851. As we explained in King, "the relevant

question here is how a felony is counted within that framework—specifically,

whether it receives points under § 4A1.1(a), (b), or (c). Section 4A1.1 presumes, and

our precedent recognizes, that some crimes will not be counted under one of those

subsections.” Id.; see also, e.g., Tolbert, 2014 WL 1929483, at *3 (citing King, 595

F.3d at 850).

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Williams further criticizes our King decision as "nonsensical.” Williams, ___

F.3d at ___, 2014 WL 2446114, at *10. Given the analytic disparity between King

and Williams, it suffices to note that the King defendant's "relatively sophisticated

argument” made sense to our experienced King panel. King, 595 F.3d at 847.

Neither today's decision nor our decision in King endorses the idea that a

defendant should, as a policy matter, "evade career offender status because he

committed more crimes than the qualifying offense,” Williams, ___ F.3d at ___, 2014

WL 2446114, at *11. To the contrary, we encourage the Sentencing Commission to

resolve the ambiguity in § 4B1.2(c) by clarifying "what prior offenses count within

the specific rules of the guidelines.” King, 595 4 F.3d at 852. But until the Sentencing

Commission (or Congress) does so, we must adhere to "our deeply rooted tradition

in the realm of criminal law . . . to apply the law strictly as written.” Id. Our justice

system rests on a foundation of fair notice. Even at the cost of allowing some

criminals to receive a shorter sentence, we firmly reject "the practice of Caligula, who

reportedly 'wrote his laws in a very small character, and hung them up upon high

pillars, the more effectually to ensnare the people.'” Flores-Figueroa v. United States,

556 U.S. 646, 658 (2009) (Scalia, J., concurring) (quoting 1 William Blackstone,

Commentaries *46). As Judge Richard S. Arnold wrote, "This country is built on the

assumption that the cost is worth paying, and that in the long run we are all both freer

and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F.2d 1164,

1173 (8th Cir. 1983), rev'd on other grounds, 467 U.S. 431 (1984).

4It seems that amending § 4B1.2(c) by deleting "separately” and including

felonies counted under § 4A1.1(e) would be consistent with the Sentencing

Commission's statutory obligation to "assure that the guidelines specify a sentence

. . . at or near the maximum term authorized for” offenders with "two or more prior

[violent or controlled substance] felonies.” 28 U.S.C. § 994(h). A separateness

requirement appears nowhere in § 994(h). Cf. id. § 994(i)(1) (specifying "offenses

committed on different occasions”).

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4. Harmless Error

In this case, however, our strict adherence to the rule of law does not cost the

public a just sentence. Unlike a criminal statute, the Guidelines are not mandatory.

See United States v. Booker, 543 U.S. 220, 245 (2005). Indeed, it would be

procedural error for a district court to treat the Guidelines as mandatory or

presumptively reasonable. See, e.g., Peugh v. United States, 569 U.S. ___, ___, 133

S. Ct. 2072, 2080 (2013). Applied to the problematic ambiguity in § 4B1.2(c), the

rule of lenity merely requires the district court to calculate the advisory sentencing

range in the way that benefits the defendant. The rule does not require the district

court to ignore the crimes of violence which § 4B1.2(c)'s ambiguity excludes from

the career offender enhancement. Having correctly calculated and considered the

advisory Guidelines range, the district court's independent obligation—regardless of

ambiguity in the Guidelines—is to impose a just and appropriate sentence based on

a careful weighing of the § 3553(a) factors in each individual case. See, e.g., id.;

Booker, 543 U.S. at 245. The district court properly did so in Parker's case.

As the government affirmatively concedes, "A review of the entire record

clearly reveals that the district court imposed the most appropriate sentence in this

case based upon the facts before it.” (Emphasis added). The record amply supports

the government's concession. While resolving the Guidelines ambiguity in Parker's

favor, the district court explained "the sentencing guidelines in this case did not

adequately take into consideration some factors,” and Parker's "criminal history really

wasn't fully captured by the way the guidelines were working in this case.” Rejecting

the Guidelines range as inapplicable to Parker's unique situation, the district court

acknowledged "sentencing is not about mathematics.” The district court also chided

Parker's counsel for "assuming that [the court's] reasoning would be different if the

guideline range was different for the . . . offense.”

Given the government's concession, we doubt we could offer the government

relief even if the district court had technically erred in its analysis of § 4B1.2(c).

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"Harmless errors are not subject to reversal.” United States v. Omar, 567 F.3d 362,

366 (8th Cir. 2009). The district court in this case plainly understood the ambiguity

in § 4B1.2(c) led to an advisory range inconsistent with Parker's actual criminal

history, so the district court sentenced Parker well above that range. In fact, Parker

believes "the district court essentially sentenced him as a career offender.” The

Supreme Court has instructed us not to "'sally forth' . . . to take up errors adverse to

the Government,” Greenlaw, 554 U.S. at 246, when the government effectively

concedes the error is harmless, and the defendant apparently agrees. The record

provides "assurance that the district judge . . . specifically contemplated the possible

error” and "whether a different advisory guideline range would affect the choice of

a sentence.” United States v. Henson, 550 F.3d 739, 742 (8th Cir. 2008). Based on

that analysis and all the "facts,” including Parker's entire criminal history, as the

government says, "the district court imposed the most appropriate sentence.”

B. Parker's Appeal

Although Parker agrees with the district court's Guidelines calculation, he

contends the district court committed a different procedural error and imposed an

unreasonably long sentence. We detect no error.

First, Parker asserts the district court procedurally erred because it "did not

adequately explain if it was imposing a departure or a variance” and "failed to

properly go through the necessary steps when apparently making an upward

departure.” Parker is doubly wrong. The district court extensively discussed the need

for an upward variance and departure in the case, explaining Parker's criminal history

was understated "given the unique facts of this case” and an upward departure and

variance were needed "to honor the congressional mandate under 18 [U.S.C. §]

3553(a).” The district court, in response to a direct question from government

counsel, clearly specified it was imposing an upward departure and variance. The

district court's explanation was careful and thorough, not procedurally erroneous.

See, e.g., United States v. Richart, 662 F.3d 1037, 1048 (8th Cir. 2011).

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Second, Parker claims the sentence of 84 months is substantively unreasonable

because "the district court failed to give significant weight to [his] postsentencing

rehabilitation evidence” and "essentially sentenced him as a career offender.” Parker

is mistaken. Despite Parker's post-sentencing conduct and the Guidelines ambiguity,

the district court remained "deeply disturbed by the violent nature of [Parker's]

criminal history” and "lack of respect for the law.” Although Pepper clarified "a

district court may consider evidence of a defendant's rehabilitation since his prior

sentencing,” nothing in Pepper requires a district court to reduce—or increase—a

sentence based on such evidence. Pepper, 562 U.S. at ___, 131 S. Ct. at 1241

(emphasis added). The sentencing judge's responsibility is always to fashion a

punishment particular to each defendant, recognizing "the human failings that

sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”

Koon v. United States, 518 U.S. 81, 113 (1996).

The § 3553(a) factors and the sentencing judge's traditional discretion

authorized the district court to account for Parker's underlying criminal history

despite the ambiguity of the career offender provision. Unlike appellate judges

whose role in the sentencing process is limited, district judges may consider policy

questions when sentencing individual defendants. District courts must use the

Guidelines as "the starting point and the initial benchmark,” Gall, 552 U.S. at 49, and

"take account of sentencing practices in other courts,” Kimbrough v. United States,

552 U.S. 85, 108 (2007). But, as we learned in a summary reversal, "district courts

are entitled to reject and vary categorically from” at least some of the "Guidelines

based on a policy disagreement with those Guidelines.” Spears v. United States, 555

U.S. 261, 265-66 (2009) (per curiam). Given the congressional policy expressed in

28 U.S.C. § 994(h) and the seemingly counterintuitive result of § 4B1.2(c)'s

ambiguity, it is clear the district court did not err in fully accounting for Parker's

understated criminal history.

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"Where [a] district court in imposing a sentence makes 'an individualized

assessment based on the facts presented,' addressing the defendant's proffered

information in its consideration of the § 3553(a) factors, such sentence is not

unreasonable.” United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009) (quoting

Gall, 552 U.S. at 50). Parker's sentence is not unreasonable.

III. CONCLUSION

`BENTON, Circuit Judge, concurring.

I concur in the court's opinion in all respects but one: § 4A1.1(e) has no

relevance in this case.

The court states, "Subsection (e) expressly recognizes that an aggregated crime

of violence may not 'receive any points under (a), (b), or (c).'” This is true, but

subsection (e) is not relevant to Parker, whose sentence for a qualifying (violent)

crime is aggregated with a sentence for a non-qualifying (non-violent) crime. As the

Application Notes say, § 4A1.1(e) applies where "the defendant received two or more

prior sentences as a result of convictions for crimes of violence that are counted as a

single sentence.” U.S.S.G. § 4A1.1 cmt. n.5 (emphasis added). Section 4A1.1(e)

applies only if the single sentence involves two or more qualifying crimes, not where

a single qualifying crime is aggregated with non-qualifying crimes. U.S.S.G. app.

C, amendment 709 ("Instances may arise in which a single sentence comprises

multiple prior sentences for crimes of violence. In such a case, §4A1.1(f) will

apply.”).

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I realize the court is relying on dicta in King. King, 595 F.3d at 850

(Subsection (e) "supports the proposition that a potential career offender predicate

can be subsumed within a group of convictions which includes a nonpredicate offense

that received a longer sentence and therefore earned the designated criminal history

point.”). This dicta does not apply in a case like Parker's. The King sentences were

ordered to run concurrently, not consecutively, and are analyzed under a different

guidelines provision than Parker's. King, 595 F.3d at 849-50. The King decision

itself recognizes this, calling a consecutive sentences case in the Fourth Circuit

"inapposite.” King, 595 F.3d at 851 n.4, discussing United States v. Slade, 346 Fed.

Appx. 948 (4th Cir. 2009) (unpublished per curiam).

Relying on subsection (e), the court concludes that Parker's single sentence

could plausibly not receive any points under subsections (a), (b), or (c). This

conclusion is correct, not for the reason the court gives, but rather because the

Guidelines do not define an "aggregate sentence.”

The Guidelines generally use the word "aggregate” when referring to a

quantitative total. E.g., Notes to § 2D1.11 ("aggregate the quantities of all such

chemicals”); Notes to § 2T1.1 ("the aggregate tax loss from the offenses added

together”); Commentary to § 8C3.1 ("an aggregate maximum authorized fine of

$1,500,000"). Here, the sentences to be aggregated have a quantitative aspect (their

lengths), and a qualitative aspect (whether the conviction is for violent crime).

Aggregation of quantitative lengths is simple addition. Aggregation of the qualitative

aspects of violent and non-violent crimes is unclear. A court could classify the

aggregate sentence as from a crime of violence if either component sentence is for a

crime of violence (consistent with the government's view). Or, a court could classify

the aggregate sentence as for a crime of violence if the longer component sentence

is from a crime of violence (consistent with Parker's view).

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Due to the rule of lenity, the court is required to adopt Parker's view that he did

not receive points under subsections (a), (b), or (c)—without considering subsection

(e).

I therefore concur.

______________________________

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In this complex sentencing case, the district court answered every legal

question correctly, imposing a procedurally sound and substantively reasonable

sentence. We affirm the district court’s well-reasoned sentencing decisions.