                 Cite as: 555 U. S. ____ (2008)             1

                            Per Curiam

SUPREME COURT OF THE UNITED STATES
       JAMES ERIC MOORE v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

            No. 07–10689.    Decided October 14, 2008 


  PER CURIAM.
  James Eric Moore was convicted of one count of possess
ing cocaine base with intent to distribute, a violation of 21
U. S. C. §§841(a)(1) and (b)(1). Given the quantity of crack
cocaine, the presentence report calculated that Moore’s
sentencing range under the United States Sentencing
Guidelines was 151 to 188 months. At sentencing, Moore
asked the District Court to impose a below-Guidelines
sentence in light of our decision in United States v. Booker,
543 U. S. 220 (2005), and the Guidelines’ disparate treat
ment of similar amounts of crack and powder cocaine.
  The District Court refused, saying:
    “With regard to the crack and powder cocaine differ
    ence, that is the law. I’m applying the law as it cur
    rently stands. If that is going to be changed, that is a
    congressional matter. Congress is the one who looks
    at the guidelines and decides whether or not they
    should be put in—in force. . . . It isn’t the judges. It’s
    the lawmakers, and I have taken an oath to apply the
    law, and that’s what I will do in this sentencing.”
    App. C to Pet. for Cert. 55–56.
The District Court sentenced Moore to 188 months of
imprisonment and six years of supervised release.
  Moore appealed, and the United States Court of Appeals
for the Eighth Circuit affirmed his conviction and sen
tence. United States v. Moore, 470 F. 3d 767 (2006). In
response to his claim that the District Court should have
considered the crack/powder disparity, the Court of Ap
2                MOORE v. UNITED STATES

                         Per Curiam

peals held that “the district court was correct in conclud
ing that ‘neither Booker nor [18 U. S. C.] §3553(a) author
izes district courts to reject’ the powder cocaine to crack
cocaine quantity ratio mandated by Congress and reflected
in the Guidelines.” Id., at 770 (quoting United States v.
Spears, 469 F. 3d 1166, 1176 (CA8 2006) (en banc)).
Moore filed a petition for certiorari with this Court. Pet.
for Cert. in Moore v. United States, No. 06–9749.
   While Moore’s certiorari petition was pending, this
Court issued its opinion in Kimbrough v. United States,
552 U. S. ___ (2007), concluding that a judge “may con
sider the disparity between the Guidelines’ treatment of
crack and powder cocaine offenses” when applying 18
U. S. C. §3553(a), “even in a mine-run case.” Id., at ___,
___ (slip op., at 2, 21). We granted Moore’s petition, va
cated the judgment, and remanded the case to the Eighth
Circuit for further consideration in light of Kimbrough.
Moore v. United States, 552 U. S. ___ (2008).
   On remand, without new briefing, the Eighth Circuit
affirmed again. 518 F. 3d 577 (2008). This time, the
Court of Appeals concluded that “[a]s there was then no
circuit authority to the contrary, we presume the district
court was aware that Booker granted it discretion to vary
downward based upon the impact of the crack cocaine
guidelines on this defendant, but elected not to exercise
that discretion.” Id., at 580.
   Proceeding pro se, Moore again petitioned for certiorari,
arguing that the Eighth Circuit’s new characterization of
the transcript is wrong, and that it is “clear that the dis
trict court thought judges had no discre[t]ion to reject” the
Guidelines ratio. Pet. for Cert. 7. The United States
agrees that the Eighth Circuit erred, see Brief for United
States 9, and so do we.
   When the District Court said that “[i]t isn’t the judges”
but Congress that “looks at the [G]uidelines and decides
whether or not they should be put . . . in force,” the court
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                          Per Curiam

showed that it did not think it had the discretion later
upheld by Kimbrough. App. C to Pet. for Cert. 56. The
Eighth Circuit’s first decision recognized this, describing
the District Court as “concluding” (correctly under circuit
precedent) that it was not “authorize[d] . . . to reject” the
crack/powder disparity. Moore, 470 F. 3d, at 770 (internal
quotation marks omitted). In light of the District Court’s
comments at sentencing, the Court of Appeals should have
remanded the case to the District Court for resentencing
under Kimbrough. We express no views on how the Dis
trict Court should exercise its discretion at resentencing.
   The petition for certiorari and the motion for leave to
proceed in forma pauperis are granted. The judgment of
the Court of Appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.

                                                  It is so ordered.
