NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2010
Decided January 24, 2011
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2250
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
RAYMOND RYALS, No. 06 CR 99
Defendant‐Appellant.
Barbara B. Crabb,
Judge.
O R D E R
This case is before us on remand from the United States Supreme Court for further
consideration in light of our en banc decision in United States v. Corner, 598 F.3d 411 (7th Cir.
2010). United States v. Ryals, 130 S.Ct. 3461 (2010). At issue is whether it is necessary to
remand the case to the district court for resentencing. Both parties have filed statements of
their positions pursuant to Circuit Rule 54.
Raymond Ryals brokered the sale of one ounce of crack cocaine to a confidential
informant, for which he sought to earn $50. A jury convicted Ryals of distributing a
controlled substance in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced
him to a whopping 365 months’ imprisonment. Ryals appealed on the ground that the
No. 08‐2250 Page 2
district court gave inadequate consideration to a motion for new counsel he had made at the
sentencing hearing. We held that the district court did not make an adequate inquiry into
the dispute between Ryals and his attorney before denying his motion for new counsel, and
remanded for a new sentencing hearing. United States v. Ryals, 512 F.3d 416, 421 (7th Cir.
2008).
At his second sentencing (before a new judge), Ryals, who was represented by
counsel, presented the court with a pro se memorandum in which he argued that his
sentence should be reduced in light of the unfair disparity in the guidelines between
sentences for powder and crack cocaine offenses. The court accepted the memorandum,
read it and acknowledged having done so, but did not address its contents on the record or
state whether it took it into consideration in any way. The court then sentenced Ryals to 300
months’ imprisonment and eight years of supervised release.
Ryals again appealed, arguing that the court abused its discretion when it did not
consider his crack/powder disparity argument in determining his sentence. We affirmed
Ryals’ sentence because under the controlling precedent at the time, United States v. Welton,
583 F.3d 494 (7th Cir. 2009), the district court had no authority to consider such an
argument. United States v. Ryals, 351 Fed. Appx. 102 (7th Cir. 2009). In Welton, we held that
a district court could not disagree with the crack/powder disparity set forth in the
guidelines because the Sentencing Commission was statutorily obligated to set guideline
ranges reflecting that disparity for career offenders. Welton, 583 F.3d at 494.
After we affirmed Ryals’ second sentence, we decided Corner, which overturned
Welton and held that a sentencing judge may consider policy disagreements with the
crack/powder disparity reflected in the career offender guidelines. See Corner, 598 F.3d at
416. We concluded that because those guidelines were no different than any other
sentencing guidelines, judges are free to disagree with them when they deem it appropriate.
Id. Ryals petitioned the Supreme Court following Corner, and the Supreme Court vacated
our judgment and remanded for reconsideration in light of that decision. Ryals, 130 S.Ct.
3461. The question before us now is whether Corner requires that Ryals be resentenced.
Ryals contends that a remand for resentencing is necessary because the district court
did not address his crack/powder disparity argument, and the district judge said nothing
that would foreclose the possibility that she would have given a lower sentence on that
basis. The government counters that Ryals’ sentence can be upheld because the district
court’s ruling, while made before Corner was decided, was nonetheless consistent with
Corner’s holding that district courts are free to disagree with the crack/powder disparity in
sentencing. The government contends that because there is no evidence that the district
No. 08‐2250 Page 3
court wanted to vary further from the guidelines than it did, the court must have considered
all relevant factors, including any policy disagreements with the sentencing guidelines for
crack cocaine.
The government’s argument fails because we have no way of knowing how the
district court would have sentenced Ryals had it known that it could disagree with the
crack/powder disparity reflected in the guidelines. United States v. Brown, 617 F.3d 955, 957
(7th Cir. 2010) (remand necessary where district court, sentencing under Welton, did not
explicitly consider the defendant’s argument that his sentence should be reduced in light of
the crack/powder disparity). A review of the sentencing transcript shows only that the
district court acknowledged reading Ryals’ sentencing memorandum, but it did not indicate
how, if at all, the argument factored into the sentencing decision. Like in Brown, there is no
way to tell how the district court might have sentenced Ryals if it had the authority to
disagree with the crack/powder disparity in the way Ryals was arguing it should. Id.
Moreover, just like in Brown, it would make sense that the district judge would not
have taken Ryals’ argument into account, because it did not have the authority to do so
under our precedent at the time. See id. And the sentencing judge made no statement that
she would have imposed the same sentence if she did have the authority to disagree with
the crack/powder disparity. Id. Because we do not know how the district court would have
sentenced Ryals had it been operating under Corner, we remand Ryals’ case for
resentencing.
VACATED AND REMANDED.