United States v. Romero, Ricardo ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-3681
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICARDO R OMERO ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 164—Barbara B. Crabb, Chief Judge.
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On Remand from the Supreme Court of the United States
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S UBMITTED F EBRUARY 29, 2008—D ECIDED JUNE 6, 2008
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Before F LAUM, K ANNE, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. The Supreme Court granted
Ricardo Romero’s petition for writ of certiorari, vacated
our judgment, and remanded the case to us for recon-
sideration in light of Kimbrough v. United States, 128 S. Ct.
558 (2007). Romero was sentenced to 151 months’ impris-
onment after a jury found him guilty of one count of
conspiring to distribute cocaine, see 21 U.S.C. §§ 841(a)(1),
846, one count of possessing five grams or more of co-
2 No. 05-3681
caine base with intent to distribute, see id. § 841(a)(1), and
one count of possessing cocaine with intent to distribute,
see id. At sentencing, Romero urged the district court to
refrain from applying the 100-to-1 crack cocaine to powder
cocaine ratio found in § 2D1.1 of the Sentencing Guide-
lines, which subjects a crack-cocaine drug trafficker “to the
same sentence as one dealing in 100 times more powder
cocaine.” Kimbrough, 128 S. Ct. at 564. The district court
applied the ratio and sentenced Romero to 151 months’
imprisonment.
On appeal, Romero challenged the sufficiency of the
evidence at trial, the district court’s refusal to allow cross-
examination of one witness regarding a prior incon-
sistent statement, and the district court’s application of
the 100-to-1 ratio. We affirmed. See United States v.
Romero, 469 F.3d 1139, 1153 (7th Cir. 2006). The Supreme
Court granted Romero’s petition for certiorari in light of
Kimbrough, and vacated the judgment. Because Kimbrough
affects only one of the three arguments Romero raised on
appeal, our dispositions of the other issues are reinstated,
id. at 1151-53, and our affirmance of Raul Romero’s sen-
tence remains intact (Ricardo’s co-defendant and brother),
id. at 1148-49. See Ohse v. Hughes, 863 F.2d 22, 24 (7th
Cir. 1988) (“The Court’s decision in Ohse v. Hughes is
reinstated except for the final section of the Court’s opin-
ion which is designated “Miscellaneous.” The section
designated “Miscellaneous” remains vacated pursuant to
the Supreme Court’s memorandum decision . . . .” (internal
citations omitted)).
When the district court sentenced Romero in September
2005, we had already held that defendants were not
“entitled to a deviation from the statutory ratio.” United
States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006) (reciting the
No. 05-3681 3
holding of United States v. Gipson, 425 F.3d 335 (7th Cir.
2005)). In Romero’s appeal, we explained that a “ ‘district
judge is required to abide by the 100:1 crack cocaine to
cocaine powder ratio when applying the Sentencing
Guidelines to a defendant’s conduct.’ ” Romero, 469 F.3d
at 1153 (quoting United States v. Hankton, 463 F.3d 626,
629 (7th Cir. 2006)). Our stance was rejected in Kimbrough,
in which the Supreme Court held that the cocaine guide-
lines are like all other sentencing guidelines and thus “are
advisory only.” 128 S. Ct. at 564.
Because Romero preserved his challenge to the crack-
cocaine ratio, we may simply vacate his sentence and
remand to the district court for resentencing. See United
States v. Padilla, No. 06-4370, slip op. at 12-16 (7th Cir.
Mar. 31, 2008); but cf. United States v. Taylor, No. 06-4123,
slip op. at 4-6 (7th Cir. Mar. 26, 2008) (outlining remand
approach applicable in plain error context). The district
court must resentence Romero in light of the non-manda-
tory nature of the 100-to-1 ratio. See Kimbrough, 128 S. Ct.
at 564. Even though we are vacating the sentence and
Romero will be sentenced anew, the district court must
apply the guidelines as they existed at the time of his first
sentencing, see 18 U.S.C. § 3742(g); United States v. Sriram,
482 F.3d 956, 961 (7th Cir. 2007), vacated, Sriram v. United
States, 128 S. Ct. 1134, 1134 (2008), reinstated, United States
v. Sriram, Nos. 05-2752 & 05-2802, slip op. at 2 (7th Cir.
Apr. 23, 2008). But this time around, the district court
will view those guidelines through the lens of Kimbrough.
Romero’s sentence is V ACATED and the case is R EMANDED
to the district court for resentencing.
USCA-02-C-0072—6-6-08