NONPRECEDENTIAL DISPOSITION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 11, 2009*
Decided October 26, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3709
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of Wisconsin.
Plaintiff‐Appellee,
No. 07 CR 80
v.
John C. Shabaz,
QUADALE D. COLEMAN, Judge.
Defendant‐Appellant.
No. 07‐3808
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of Wisconsin.
Plaintiff‐Appellee,
No. 06 CR 221
v.
Barbara B. Crabb,
JAMES V. FRAZIER, Chief Judge.
Defendant‐Appellant.
*
After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and records. See FED. R. APP. P. 34(a)(2).
Nos. 07‐3709 & 07‐3808 Page 2
O R D E R
We have consolidated for decision these two appeals because they raise the same
issue: whether a defendant sentenced as a career offender is entitled to a limited remand
under United States v. Kimbrough, 128 S. Ct. 558 (2007). See United States v. Taylor, 520 F.3d
746 (7th Cir. 2008). Quadale Coleman pleaded guilty to possession of crack with intent to
distribute, and James Frazier was convicted after a jury trial of distribution of crack and
possession of crack with intent to distribute. See 21 U.S.C. 841(a)(1). Both defendants were
sentenced as career offenders, see U.S.S.G. § 4B1.1(a); Coleman was sentenced to
225 months’ imprisonment, and Frazier was sentenced to 360 months’ imprisonment.
After both men were sentenced, the Supreme Court held in Kimbrough that district
courts may conclude, even in a “mine‐run case,” that the crack‐to‐powder ratio underlying
the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater than necessary
for the particular defendant. 128 S. Ct. at 575; see United States v. Bruce, 550 F.3d 668, 674
(7th Cir. 2008). Defendants who were sentenced under § 2D1.1 before Kimbrough but did
not object to the ratio in that guideline may be entitled to a limited remand for the district
court to consider whether it would have imposed a lower sentence in light of Kimbrough.
See Taylor, 520 F.3d at 747‐48.
On appeal both Coleman and Frazier contend that their cases should be remanded in
light of Kimbrough and Taylor. But we have conclusively held that a sentence imposed
under § 4B1.1(a), the career‐offender guideline, raises no Kimbrough problem, and thus a
limited remand is not required. See United States v. Welton, No. 08‐3799, 2009 WL 3151162,
at *2‐5 (7th Cir. Oct. 2, 2009); United States v. Hearn, 549 F.3d 680, 684 (7th Cir. 2008); United
States v. Clanton, 538 F.3d 652, 660 (7th Cir. 2008), cert. denied, 129 S. Ct. 2380 (2009); United
States v. Harris, 536 F.3d 798, 812‐13 (7th Cir. 2008). To the extent the crack/powder
differential carries over into sentencing for career offenders, it is because of the statutory
penalties and not, as in Kimbrough, the application of § 2D1.1. See Welton, 2009 WL 3151162,
at *2; United States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009); Hearn, 549 F.3d at 684;
Clanton, 538 F.3d at 660; Harris, 536 F.3d at 812‐13. Thus, Coleman and Frazier’s sole
argument on appeal is foreclosed, and we AFFIRM the judgment in both cases.