                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-4123
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                               v.

GEORGE E. TAYLOR,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Western District of Wisconsin.
           No. 06 CR 105—Barbara B. Crabb, Chief Judge.
                        ____________
    ARGUED JANUARY 24, 2008—DECIDED MARCH 26, 2008
                        ____________



  Before POSNER, RIPPLE, and TINDER, Circuit Judges.
  POSNER, Circuit Judge. George Taylor pleaded guilty to
distribution of crack cocaine and was sentenced to 124
months in prison. His appeal presents the recurring issue
of the proper treatment of crack sentencing appeals that
were pending when the Supreme Court decided Kimbrough
v. United States, 128 S. Ct. 558 (2007). Taylor objects to his
sentence on the ground that the district judge in sentencing
him did not have the benefit of the Supreme Court’s
decision. The government points out that our review is for
2                                                 No. 06-4123

plain error because no objection to the sentence based on
the 100:1 ratio of the weight of crack cocaine to the weight
of powder cocaine, used in the sentencing guidelines, was
made in the district court. The government further argues,
but this time incorrectly, that because the district judge
evinced no unhappiness with the guideline range that the
ratio generated, there is no ground for ordering Taylor
resentenced.
  Before the Supreme Court’s decision, the rule in this
court was that the 100:1 ratio was a statutory Diktat that a
sentencing judge was not permitted, even under the
liberalized regime of the Booker decision, to question. Even
“after Booker district judges are obliged to implement the
100-to-1 ratio as long as it remains part of the statute and
the Guidelines . . . .[D]efendants are not entitled to a
deviation from the statutory ratio . . . . [D]istrict judges
must continue to carry out the legislative choice, even
though there may be powerful reasons for change.” United
States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006). “[A]
district judge is required to abide by the 100-to-1 crack
cocaine to cocaine powder ratio when applying the Sen-
tencing Guidelines to a defendant’s conduct; . . . . [A]
sentencing judge may not recalculate a Guidelines sentence
or impose a lesser, non-Guidelines sentence based on his
opinion that the statutory and/or Guidelines disparity
between punishments for crack cocaine and powder
cocaine is unjust or unwarranted.” United States v. Hankton,
463 F.3d 626, 629 (7th Cir. 2006). Because the guidelines
were advisory, the sentencing judge could dip below them
in a crack case as in any other case (provided the judge did
not try to go below a mandatory minimum sentence),
United States v. Miller, supra, 450 F.3d at 275, but not on the
basis of a disagreement with the weighting of crack versus
No. 06-4123                                                3

powder; that we thought a decision that Congress, either
directly or by delegation to the Sentencing Commission,
had removed from the area of judicial discretion, just as
Congress does when it fixes minimum and maximum
sentences.
  In Kimbrough, the Supreme Court (as the government
acknowledges in a post-argument submission in the
present case) held that this was incorrect; that the 100:1
ratio is not a statutory dictate, but merely a judgment,
entitled to respect but not to uncritical acceptance, made by
the Sentencing Commission as an input into fixing guide-
line ranges for crack offenders. 128 S. Ct. at 574; see also
United States v. Medina Casteneda, 511 F.3d 1246, 1248-49
(9th Cir. 2008); United States v. Pauley, 511 F.3d 468, 472-
73 (4th Cir. 2007).
  Even before Kimbrough, a sentencing judge could if he
wanted rail against the 100:1 ratio, but that would have
been spitting against the wind, since we had held that the
ratio was not to be questioned by sentencing judges. Thus
the fact that a judge—the judge in this case for exam-
ple—does not say anything about the ratio cannot be taken
to mean that he (in this case she) thinks it is fine. The
situation is the same as we faced after the Supreme Court
in Booker demoted the sentencing guidelines from being
mandatory to being merely advisory. Since until then they
had been mandatory, the fact that a sentencing judge gave
a sentence within the applicable guideline range without
questioning the appropriateness of such a sentence did not
mean that, had he known that the guidelines were merely
advisory, he would have given the same sentence. So in
such cases, where the defendant had been sentenced before
Booker and his appeal from the sentence was pending after
Booker, unless the judge had made clear that he would have
4                                               No. 06-4123

given the same sentence under an advisory regime we
directed a limited remand to enable the judge to advise us
whether he was minded to resentence the defendant, and
if he said he was then we remanded for resentencing. We
pointed out that a sentence founded on a clear error of law
was appropriate for correction on review for plain error.
  That was United States v. Paladino, 401 F.3d 471, 481-84
(7th Cir. 2005), and its approach (including, as held in
United States v. White, 2008 WL 585036, at *6 (7th Cir.
Mar. 8, 2008), the “unless” qualification) is equally ap-
plicable in the present setting. As the Eighth Circuit,
adopting an approach similar to ours, has explained,
“Normally, a district court that is aware of an argument
does not abuse its discretion by not considering it. When a
district court does not consider an argument because it is
unaware of its power to do so, however, a remand is
appropriate. See, e.g., United States v. Lewis, 249 F.3d 793,
795 (8th Cir. 2001). In Lewis, we could not determine from
the record whether the district court was aware of its
authority to grant a downward departure, and thus we
remanded the case to allow the district court to exercise its
discretion in deciding whether to grant or deny the down-
ward departure. Id. In this case, the district court said
nothing in either [defendant’s] sentencing hearing about
the disparity. It is unclear whether the district court
declined to use its discretion in the requested manner
because of then-current Eighth Circuit precedent or
because it did not find that the disparity warranted any
variance from the guidelines. We therefore vacate the
sentences and remand to the district court so that it may
reconsider the sentences in light of Kimbrough.” United
States v. Roberson, 2008 WL 323223, at *4 (8th Cir. Feb. 7,
2008) (citation omitted); see also United States v. Stratton,
No. 06-4123                                               5

2008 WL 656514, at *1 (11th Cir. Mar. 13, 2008) (per
curiam); United States v. Regalado, 2008 WL 577158, at *3-5
(2d Cir. Mar. 4, 2008) (per curiam).
  A complication is that beginning on March 3, persons
sentenced for crack offenses have been able to move for a
reduction in their sentence to conform to the Sentencing
Commission’s decision to reduce retroactively the 100:1
ratio that generates such harsh sentences for crack offenses
relative to powder offenses. United States Sentencing
Commission, “Supplement to the 2007 Guidelines Manual”
1-4 (Mar. 3, 2008); News Release, “U.S. Sentencing Com-
mission Votes Unanimously to Apply Amendment Retro-
actively for Crack Cocaine Offenses” (Dec. 11, 2007),
www.ussc.gov/PRESS/rel121107.htm (visited Jan. 28,
2008). It might seem, in light of the Commission’s decision,
that our remanding a case for possible resentencing in light
of Kimbrough would be pointless, since the judge minded to
reduce a crack defendant’s sentence could simply
resentence under the new guideline. (Moreover, the judge
can do this on his own initiative, or on motion by the
director of the federal bureau of prisons, without a motion
by the defendant. 18 U.S.C. § 3582(c).)
  But that may be incorrect. The new guideline provides
that a sentence under it may not be lower than the new
guidelines range, U.S.S.G. § 1B1.10(b)(2)(A) (Mar. 3, 2008),
unless the original sentence was a nonguideline sentence,
in which event, however, “a further reduction generally
would not be appropriate.” Id., § 1B1.10(b)(2)(B). Like the
rest of the guidelines, this provision may be merely
advisory, in which event a sentence lower than the one
prescribed by section 1B1.10(b)(2)(A) may be “consistent
with applicable policy statements issued by the Sentencing
Commission,” as required by 18 U.S.C. § 3582(c)(2), the
statute granting district courts authority to reopen a
6                                               No. 06-4123

sentence that has become final. But the status of section
1B1.10(b)(2)(A) has not been argued to us and we take no
position on it. In any event, Kimbrough, following Booker,
allows a judge to sentence below the guidelines range.
  The district judge should hold off on telling us whether
she is minded to resentence the defendant under Kimbrough
until she decides whether to act favorably on the defen-
dant’s motion (if he makes one, or on the judge’s own
initiative, if he does not) for relief under the Commission’s
new crack regime. If she decides to impose the same
sentence under the new guideline, or if though she lowers
the sentence the defendant believes that 18 U.S.C. § 3553(a)
would warrant a still-lower sentence, or if he does not
make a proper motion for relief under the new guideline
and she is not minded to grant such relief on her own
initiative, she will then have to advise us whether she
would be inclined to reduce his sentence under the dispen-
sation granted sentencing judges by Kimbrough. To avoid
delay, the judge should impose a deadline on the filing of
a motion to resentence; we suggest 21 days after the date of
this decision.
  Because this opinion lays down a rule for handling
appeals pending in this court when Kimbrough was decided
by the Supreme Court, we have circulated the opinion to
the full court in advance of issuance. 7th Cir. R. 40(e). No
judge in active service requested that the case be heard en
banc.




                   USCA-02-C-0072—3-26-08
