NONPRECEDENTIAL DISPOSITION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
May 11, 2009
Before
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
UNITED STATES OF AMERICA, ] Appeal from the United
Plaintiff-Appellee, ] States District Court for
] the Northern District of
No. 03-2915 v. ] Illinois, Eastern Division.
]
GREGORY DAVIS, ] No. 01 CR 1
Defendant-Appellant. ]
] Charles R. Norgle,
] Judge.
The Supreme Court has granted Gregory Davis’s petition for a writ of certiorari,
vacated the judgment, and remanded the case to us for reconsideration in light of Kimbrough
v. United States, 128 S. Ct. 558 (2007). Davis v. United States, No. 06‐9210, 128 S. Ct. 857 (2008)
(mem.).
Davis pleaded guilty to possession with the intent to distribute approximately 250
grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Although he was sentenced as a
career offender, that Guideline did not determine his offense level. If sentenced as a career
offender, after a reduction for acceptance of responsibility, the offense level would have
been 29. Instead, Davis’s offense level was 32 based on the district court’s findings that
Davis possessed between 50 and 150 grams of crack cocaine and that Davis was a manager
No. 03‐2915 2
or supervisor, with a guideline range of 210 to 240 months. He was sentenced to 210
months’ imprisonment. Had his applicable offense level been based on the same amount of
powder, rather than crack, cocaine, the applicable offense level would have been lower than
the career offender offense level, and the career offender offense level of 29 would have
applied. U.S.S.G. § 4B1.1. The resulting sentencing range therefore would have been
significantly lower were it not for the 100‐to‐1 crack to powder cocaine ratio as called for in
the guidelines when Davis was sentenced.
Davis made the crack/powder disparity argument in the district court. On appeal,
we agreed that the district judge was required to abide by the 100‐to‐1 ratio when applying
the Sentencing Guidelines to a defendantʹs conduct. United States v. Hankton, 463 F.3d 626,
629‐30 (7th Cir. 2006). Kimbrough has changed the landscape and the government now
concedes that Davis must be resentenced.
We agree that Davis’s sentence must be reconsidered. In Kimbrough the Court
rejected the view that sentencing courts were obligated to apply the 100:1 ratio to all crack
offenses. United States v. Bush, 523 F.3d 727 (7th Cir. 2008). The Supreme Court also
reaffirmed that the district court must calculate and consult the advisory guideline range
and then address the relevant § 3553(a) factors. Kimbrough, 128 S. Ct. at 575.
Accordingly, we VACATE Davis’s sentence and REMAND the case to the district
court for resentencing in light of Kimbrough.