United States v. Everett Williams ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 30, 2008
No. 07-12994
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-20653-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT WILLIAMS,
a.k.a. Ed Bush,
a.k.a. Eddie Joe,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 30, 2008)
Before TJOFLAT and BLACK, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
After pleading guilty to two counts of possession of crack cocaine with
intent to deliver, Everett Williams was sentenced to 140 months’ imprisonment, a
sentence at the bottom of the then-applicable sentencing guideline range. While
Kimbrough v. United States, — U.S. —, 128 S. Ct. 558 (2007), was still pending
before the United States Supreme Court, Williams filed this appeal challenging the
district court’s failure to consider whether the disparity between the guidelines for
powder and base cocaine resulted in a guideline range greater than necessary to
promote the purposes of sentencing in his case. The district court did not address
Williams’ challenge to the crack/powder disparity because it was foreclosed by
our precedent in United States v. Williams, 456 F.3d 1353, 1366-69 (11th Cir.
2006).
On December 10, 2007, the Supreme Court issued its decision in
Kimbrough, which implicitly overruled our decision in Williams. See Kimbrough,
128 S. Ct. at 576. Shortly thereafter, the Court remanded United States v. Stratton,
519 F.3d 1305, 1306 (11th Cir. 2008), a case in which the defendant raised a claim
identical to the one Williams raises here. After noting the district court had (1)
rejected its authority to consider the crack/powder disparity at sentencing and (2)
had not indicated whether it would have entered the same sentence if it had
authority to do so, we remanded the case to the district court “for the limited
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purpose of resentencing [the defendant] in light of Kimbrough.” Id. at 1306-07.
The Court explained:
[A]s this is a limited remand to permit the district court to reconsider
the § 3553(a) factors in light of the Supreme Court’s holding in
Kimbrough, Stratton may not re-argue other issues already decided or
necessarily decided during his two prior sentencings that either were
affirmed on direct appeal or could have been, but were not, raised by
him during his direct appeals. However, the district court may, if it
wishes to do so, combine this resentencing proceeding on remand
with any additional proceeding the district court may determine is
appropriate in light of the retroactive application of Amendment 706
to the crack-cocaine guidelines effective March 3, 2008.
Id. at 1307 (internal citations omitted).
The same result is appropriate in this case. In light of Kimbrough,
Williams’ sentence was procedurally unreasonable because the district court failed
to treat the 100:1 sentencing ratio between crack and powder cocaine sentences as
advisory. See Gall v. United States, — U.S. —, 128 S. Ct. 586, 597 (2007)
(significant procedural errors at sentencing include “treating the Guidelines as
mandatory”). Moreover, the district court did not address whether it would have
imposed the same sentence had it been free to treat the crack/powder disparity as
advisory. The court did indicate that Williams deserved a sentence above the
mandatory minimum term of 120 months’ incarceration; however, it is not clear
whether the court would have entertained a sentence of less than 140 months had
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it treated the Sentencing Guidelines as wholly advisory. Consequently, we remand
the case to the district court for the limited purpose of resentencing Williams in
light of Kimbrough. See Stratton, 519 F.3d at 1307. The Court is free to combine
the resentencing proceeding with any additional proceeding the district court may
determine appropriate in light of the retroactive application of Amendment 706 to
the crack-cocaine guidelines.
REVERSED AND REMANDED.
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