United States v. Craig Miller , 321 F. App'x 860 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 23, 2009
No. 07-15518 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-20520-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG MILLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 23, 2009)
Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:
Craig Miller (“Appellant”) appeals his 151-months’ sentence for possession
of and conspiracy to possess crack cocaine.* Appellant argues that the district
court failed to address Appellant’s contention that the crack/powder disparity in the
sentencing guidelines should be considered advisory rather than mandatory. The
government (“Appellee”) agrees that, because the sentencing hearing was held
before the Supreme Court’s decision in Kimbrough v. United States, 128 S.Ct. 558(2007), Appellant’s case warrants limited remand. We vacate the sentence and
remand to the district court for the limited purpose of reconsideration in the light of
Kimbrough.
In United States v. Stratton, 519 F.3d 1305 (11th Cir. 2008), we recognized
that Kimbrough overruled United States v. Williams, 456 F.3d 1353 (11th Cir.
2006), our prior precedent on the crack/powder sentencing disparity. In Stratton,
we said that under Kimbrough, the district courts have the authority to consider the
crack/powder sentencing disparity when reaching an appropriate sentence. Id. at
1306-07.
*
Counsel for Appellant filed a motion to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), on the grounds that he had conducted a thorough review and could find nothing
on which to base an appeal. This Court denied his motion and directed him to appeal on the
issue of whether the district court properly treated the crack/powder disparity as mandatory when
sentencing.
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In Stratton, we remanded and noted that “[w]e do not suggest on remand
that the district court must impose any particular sentence or that the district court
is not free to impose the same sentence . . . . [T]his is a limited remand to permit
the district court to reconsider . . . in light of . . . Kimbrough.” Id.In United States v. McGowan, 276 Fed.Appx. 946 (11th Cir. May 6, 2008)
(per curiam), we remanded for reconsideration in the light of Kimbrough in a case
similar to this case. McGowan argued at sentencing that the crack/powder
disparity led to a sentence significantly greater than necessary. The sentencing
judge did not address McGowan’s crack/powder sentencing disparity argument.
Id. Under those circumstances, we concluded that a limited remand in the light of
Kimbrough was appropriate. Id. at 3. In support of that decision, we noted that we
were “left in doubt as to whether the district court understood that it would not
have abused its discretion if it had reduced McGowan’s sentence based on a policy
disagreement with the crack/powder disparity.” Id. Faced with that doubt, we
decided to “remand to the district court to give it an opportunity to indicate
whether it would have imposed a different sentence if it had understood that it had
discretion to disagree with the Guidelines policy expressed in the crack/powder
disparity. If the district court concludes that consideration of the crack/powder
disparity would make no difference in McGowan’s sentence, it need not conduct a
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resentencing hearing and may simply reenter the sentence previously imposed.”
Id. at 4.
In this case, the record is unclear on whether the district court considered the
crack/powder sentencing ratio to be an advisory or mandatory aspect of
Appellant’s sentence. Because Kimbrough had yet to be decided, reason exists to
believe the district court may not have understood the ratio to be advisory. The
government agrees with Appellant that a limited remand, as we ordered in
McGowan, is necessary to allow the district court to consider its decision in the
light of the Supreme Court’s decision in Kimbrough. Accordingly, we remand this
case to the district court for limited reconsideration as we did in McGowan.
VACATED and REMANDED.
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