           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 13, 2008

                                       No. 06-10526                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,
v.

JASON DEJUAN LEATCH,
ALSO KNOWN AS CRIPTONITE

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              SCOTUS No. 06-12046

             On Remand from the Supreme Court of the United States
              (Opinion March 22, 2007, 5th Cir., 2007 ____F.3d ____)

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
       On remand from the Supreme Court, we are asked to reconsider, in light
of the Court’s decision in Kimbrough v. United States, 128 S.Ct. 558 (2007),
whether the district court abused its discretion in applying a non-Guidelines
sentence because it disagreed with the sentencing disparity for crack and powder

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 06-10526



cocaine offenses found in the Guidelines.        We vacate and remand for
resentencing in accord with Kimbrough and Gall v. United States, 128 S.Ct. 586
(2007).
      At defendant Jason Dejuan Leatch’s post-Booker resentencing, Leatch
sought a downward sentencing departure based on the purported unfairness of
the Sentencing Guidelines (“Guidelines”) because 100 times more powder cocaine
than crack cocaine was required to trigger inclusion in a given sentencing range.
See United States v. Leatch, 482 F.3d 790, 790 (5th Cir. 2007), abrogated by
Kimbrough v. United States, 128 S.Ct. 558. After a lengthy discussion with
defense counsel how the United States Sentencing Commission’s proposed 20:1
ratio would affect Leatch’s sentence, the district court elected to make a
downward departure and impose a below-Guidelines sentence based on its
disagreement with the Guidelines’ disparity between crack cocaine and powder
cocaine offenses. The court stated:
            I’m varying in this case because I think the 100-to-1
            disparity between powder cocaine and crack cocaine is
            inappropriate. I’ve followed with great interest the
            thoughtful district court decisions that address that. I
            am not going to attempt to restate on my own the
            various reasons for that. But for the reasons reflected
            in those decisions and also reflected in the Sentencing
            Commission's determination that the 100-to-1 ratio was
            inappropriate. . . . [a]ccordingly, I’m going to follow
            what I understand to be the Sentencing Commission’s
            recommendation and use a 20-to-1 ratio.

Id. at 791. The court applied the 20:1 ratio that yielded a new sentence of
262–327 months — 62 months lower than the range with the 100:1 ratio. Leatch


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received the minimum 262-month sentence, and two 240-month sentences, all
to be served concurrently. Id.
      On appeal, this court vacated the sentence because it concluded that a
sentencing court may not deviate from the 100:1 crack-powder ratio based solely
upon its belief that the policies underpinning that sentencing regime are
misguided or unfair. Id. Furthermore, we concluded that a sentencing court’s
rejection of the 100:1 crack-powder ratio is not a substitute for the individualized
sentencing considerations a court is required to make under 18 U.S.C. 3553(a).
Id.
      In Kimbrough, the Supreme Court held that the cocaine guidelines were
advisory only and were not mandated by Congress; consequently, we and other
courts erred in holding them effectively mandatory. Kimbrough, 128 S.Ct. at
564. The Court concluded that although the sentencing court must include the
Guidelines into the array of factors warranting consideration under 3553(a), the
court may determine that in the particular case, a within-Guidelines sentence
is “greater than necessary” to serve the objectives of sentencing. Id.
      On the same day it decided Kimbrough, the Supreme Court released
another opinion, Gall v. United States, 128 S.Ct. 586, which clarified the
advisory nature of the Guidelines and the respective duties of district and
appellate courts.      According to the Court, the calculation of the relevant
Guidelines sentence is the starting point for any sentencing determination; but
the Guidelines sentence is only one of a number of factors courts must consider
when making their individualized sentencing determinations under 18 U.S.C.
3553(a). Id. at 596.

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      On resentencing, the district court must take care — especially if it decides
to deviate from the Guidelines — to articulate how its sentence satisfies the
statutory criteria.1 Therefore, we vacate and remand for resentencing in light
of Kimbrough and Gall.
      The sentence is VACATED, and the case REMANDED for resentencing.




      1
         On remand, the district court will consider the Sentencing Commission’s November
1, 2007 amendments to USSG § 2D1.1(c), which it concluded should apply retroactively. See
Kimbrough, 128 S.Ct. at 569.

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