                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1892
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Hashim Amin Cawthorn,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 21, 2008
                                 Filed: June 4, 2008
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN, and BYE, Circuit Judges.
                             ___________

BYE, Circuit Judge.

        A jury convicted Hashim Cawthorn of conspiracy to distribute and possess with
intent to distribute, and knowingly and intentionally distributing, crack cocaine. He
appealed his convictions and sentence and we affirmed. The Supreme Court granted
certiorari, vacated the judgment, and remanded for our further consideration because
of its decision in Kimbrough v. United States, 552 U.S. —, 128 S.Ct. 558 (2007). We
now affirm Cawthorn's convictions but reverse and remand for resentencing.

      At sentencing Cawthorn asked the district court to vary downward from the
advisory guideline range of 210 to 262 months arguing the Guidelines' 100:1 ratio
between crack and powder cocaine was unreasonable. The district court declined,
stating:

      Mr. Cawthorn, your principal objection or your objection principally
      goes to a congressional mandate that's been imposed upon the courts and
      upon our sentencing regime by making the declaration that crack cocaine
      is – has to be treated 100 times worse than powder cocaine.

      That has been a losing fight for 15 years among the judges in this
      country. There's no way that – Congress is not inclined to change that.
      I have an obligation to – to uphold the law whether I agree with it or not.
      That's just one of the oaths that I've taken.

Sent. Tr. at 31.

       In Kimbrough, the Supreme Court held sentencing courts may vary downward
from the advisory guidelines range based on the disparity created by the 100:1 ratio
between crack and powder cocaine offenses. 128 S.Ct. At 575-76. We have held
Kimbrough does not require district courts to consider the crack/powder disparity in
all sentences for crimes involving crack cocaine. United States v. Roberson, 517 F.3d
990, 995 (8th Cir. 2008). "[A] district court that is aware of an argument does not
abuse its discretion by not considering it." Id. (citing United States v. Miles, 499 F.3d
906, 909-10 (8th Cir. 2007)). However, "[w]hen a district court does not consider an
argument because it is unaware of its power to do so . . . a remand is appropriate." Id.
Based on this record, it is apparent the district court did not recognize its authority to
vary from the advisory guidelines sentence, and we cannot tell whether, had it know
it could vary, the court would have granted Cawthorn's motion for a downward
variance. See United States v. Thomas, No. 06-2452, 2008 WL 55402, at 4 (N.D.
Iowa. May 5, 2008). Accordingly, we vacate the sentence and remand for
resentencing. As for all other issued raised in Cawthorn's appeal, we affirm for the
reasons stated in our prior opinion.
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