US v. Brewer: Brewer pleaded guilty to distributing crack. Prior to sentencing, it was established that Brewer suffered from serious mental deficits, with a tested IQ as low as 59. At sentencing, he argued for a downward departure under USSG 5K2.13 for diminished capacity. The court rejected that invitation, because based on a review of Brewer's evidence that he was "impulsive and a follower" and therefore posed a danger to society. The court then imposed a sentence of 70 months in prison. It's unclear from decision if Brewer also asked for a Booker variance on similar grounds.
Brewer appealed his sentence, which the Fourth Circuit affirmed. First, the court reasserted its holding that it cannot review a district court's decision not to depart except on the ground that the court was incorrect in its ability to depart. As there was no question that the district court knew it could depart and chose not to do so, the Fourth left that decision intact. Second, the Fourth Circuit held that Brewer's sentence was not unreasonable, given that it was at the bottom of the advisory Guideline range. The court took the opportunity, in the course of its reasonableness review, to address the recent change to the crack Guideline, holding that it would not remand the case for the district court to consider the amended Guidelines, leaving that to a future proceeding under 18 USC 3582(c)(2).