NONPRECEDENTIAL DISPOSITION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 February 4, 2009
Decided February 13, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07‐2106
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 06‐CR‐216‐S‐01
NICOLE L. HOWE,
Defendant‐Appellant. John C. Shabaz,
Judge.
O R D E R
Nicole Howe pleaded guilty in 2007 to possessing crack cocaine with intent to
distribute, see 21 U.S.C. § 841(a)(1), and the district court sentenced her to 120 months’
imprisonment, the bottom of the sentencing guidelines range of 120 to 150 months. Howe
filed a timely notice of appeal, but her counsel moved to withdraw after concluding that
there was no nonfrivolous basis for an appeal. See Anders v. California, 386 U.S. 738 (1967).
We denied the motion, however, in light of Kimbrough v. United States, 128 S. Ct. 558 (2007),
reasoning that Howe’s sentence was a product of the 100:1 crack‐to‐powder ratio and that
Howe could argue on appeal she was entitled to a limited remand to determine whether she
No. 07‐2106 Page 2
would have received a different sentence under Kimbrough. See id. at 564, 575 (permitting
consideration, at sentencing, of disparity between guidelines ranges for crack and powder
cocaine offenses); United States v. Taylor, 520 F.3d 746, 746‐49 (7th Cir. 2008). Rather than
proceed to the merits, the parties filed a joint motion for a limited remand, which we
granted in July 2008.
Judge Shabaz, the initial sentencing judge, is on medical leave, so Judge Crabb took
up the question in the district court. After reading the presentence report and the transcript
of the sentencing hearing, Judge Crabb determined that Judge Shabaz would not have
altered Howe’s sentence had he known about the discretion furnished by Kimbrough. Judge
Crabb noted Judge Shabaz’s emphasis on Howe’s prior criminal history and “the fact that
she resumed dealing crack cocaine within six months of her release from state prison
following her conviction for the same course of conduct.” Moreover, Judge Shabaz “did not
believe her criminal history score overstated the seriousness of her criminal behavior.”
Judge Crabb explained further that her colleague ultimately “balanced [Howe’s] substance
abuse problems and her supportive family against the nature of the offense and the
quantities of controlled substances involved before concluding that a sentence at the bottom
of the advisory guidelines range would be appropriate.” Judge Crabb concluded, “taking
into account the careful consideration that Judge Shabaz gave to the case and finding no
persuasive reason to believe that the sentence he imposed is unreasonable, I am not inclined
to give defendant a lower sentence in light of Kimbrough.” Nor would Judge Crabb, as we
understand her order, impose a different sentence for any other reason.
We invited the parties to comment on whether a full remand is appropriate in light
of the district court’s order, but neither reply is significant. The government simply urges
us to affirm. Howe’s submission is not responsive.
This is an unusual case. Judge Shabaz is the only appropriate judge to answer the
question posed by our limited remand, but he is unavailable. The parties, meanwhile, have
assented to this substitute arrangement in their most recent submissions to this court. Yet
we have insisted in another context that “the only person who could really tell us whether
he would have imposed the same sentence based on the facts and evidence of a particular
case is the original ‘sentencing judge.’” United States v. Bonner, 440 F.3d 414, 416 (7th Cir.
2006). Bonner is distinguishable, however. In that case we ordered a limited remand to
determine whether the district court “would have have imposed the same sentences had it
understood . . . that the guidelines were advisory.” Id. at 415. The original sentencing judge
recused himself on remand, and the newly assigned judge issued an order explaining that
he could not proceed because he was not the sentencing judge and thus was unable to carry
out the purpose of the limited remand. Id. Our solution there was to remand (a second
time) for a new sentencing hearing before the newly assigned judge, who could then
No. 07‐2106 Page 3
proceed with a “clean slate.” Id. But here that would be futile; Judge Crabb—currently the
only judge in the Western District of Wisconsin—has already announced, after reviewing
the record and the sentencing transcript, that she would not sentence Howe differently. A
full remand is therefore unnecessary.
AFFIRMED.