NONPRECEDENTIAL DISPOSITION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 May 14, 2008*
Decided May 22, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 07‐2234
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 05‐CR‐39‐C‐01
JOHN A. RADERMACHER,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
John Radermacher pleaded guilty to conspiring to possess and distribute more than
50 grams of crack. See 21 U.S.C. §§ 846, 841(a)(1). The probation officer, applying the 2005
version of the sentencing guidelines, recommended a base offense level of 38 because the
conspiracy had involved at least 1.5 kilograms of crack. See U.S.S.G. § 2D1.1(c)(1) (2005).
The probation officer calculated a total offense level of 42, and a criminal history category of
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Accordingly, the appeal is submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2).
No. 07‐2234 Page 2
IV, which resulted in an imprisonment range of 360 months to life. Radermacher did not
object to the probation officer’s calculations, and the district court sentenced him to 360
months’ imprisonment. Had the conspiracy involved 1.5 kilograms of powder cocaine
instead of crack, Radermacher’s base offense level would have been 18. See id.
§ 2D1.1(c)(11) (2005).
In the district court Radermacher did not argue that the harsher treatment of crack
offenders—the so‐called 100:1 ratio—is unfair, nor did the district court comment on the
ratio. On appeal, Radermacher argues that application of the 100:1 ratio resulted in an
unreasonable sentence. At the time he filed his appeal, his argument would have failed
because we had held that a district court was prohibited from reducing the sentence of a
crack offender merely because the court disagreed with the ratio adopted by the Sentencing
Commission. See United States v. Jointer, 457 F.3d 682, 686‐88 (7th Cir. 2006); United States v.
Miller, 450 F.3d 270, 275‐76 (7th Cir. 2006). But after he filed his appeal, the Supreme Court
held in United States v. Kimbrough, 128 S. Ct. 558, 575‐76 (2007), that a district court may
reduce a defendant’s sentence below the guidelines range in a routine crack case if the court
is convinced that the ratio alone unfairly punishes the defendant.
Because in this case Radermacher did not argue that applying the 100:1 ratio would
yield an unreasonable sentence, we cannot determine whether the district court would have
taken the ratio into account had it not been constrained by our pre‐Kimbrough precedents.
See United States v. Taylor, No. 06‐4123, 2008 WL 782739, at **1‐2 (7th Cir. Mar. 26, 2008).
Accordingly, we remand to allow the district court to inform us whether it wishes to
resentence Radermacher in light of Kimbrough. See id. Cf. United States v. White, No. 06‐4185,
2008 WL 585036, at *6 (7th Cir. Mar. 5, 2008) (declining to order post‐Kimbrough remand
since sentencing court had said it would impose same sentence even if not bound by 100:1
ratio). Before the district court answers our question on remand, however, it should give
Radermacher an opportunity to move for resentencing in light of the Sentencing
Commission’s decision to make retroactive a 2007 amendment that decreased the base
offense levels for crack offenses. See U.S.S.G. App. C, Supp. Mar. 3, 2008, amend. 213;
Taylor, 2008 WL 782739, at *3.
REMANDED.