                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4791


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JESUS ESTEVEZ ANTONIO, a/k/a Jesus Antonio Estevez,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-00500-CMH)


Argued:   December 5, 2008                 Decided:   February 23, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Richard Donald Dietz, KILPATRICK & STOCKTON, L.L.P.,
Winston-Salem, North Carolina, for Appellant.     Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.    ON BRIEF: Adam Howard Charnes, KILPATRICK &
STOCKTON, L.L.P., Winston-Salem, North Carolina, for Appellant.
Chuck Rosenberg, United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jesus Estevez Antonio (Estevez) appeals his sentence

for distribution of crack cocaine and conspiracy to distribute

powder cocaine on the grounds that the district court erred in

treating     the     sentencing      guidelines      for     crack     cocaine   as

mandatory. Estevez contends that he should be resentenced in

light of Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558

(2007), a case decided after he was sentenced by the district

court.     Kimbrough held that the crack sentencing guidelines,

“like all other Guidelines, are advisory only.”                      128 S. Ct. at

564.     We conclude that Estevez raised a Kimbrough-type objection

at his sentencing hearing, thereby preserving for appeal the

argument    that     the     crack   guidelines      are    advisory.      Because

Kimbrough requires that Estevez be resentenced, we vacate his

sentence and remand for resentencing.



                                        I.

            In     October    2006   Estevez   and    his    codefendant,    Ruben

Chavez Paz, were arrested and charged in a criminal complaint

with conspiracy to distribute cocaine.                     The substance seized

from Estevez and Chavez Paz when they were arrested appeared to

the naked eye to be powder cocaine.            Chavez Paz pled guilty to a

one-count information charging him with conspiracy to distribute

powder cocaine in violation of 21 U.S.C. § 846; he was sentenced

                                         2
to 70 months in prison.        After Chavez Paz’s plea and sentence,

but before Estevez’s indictment, government lab results showed

that the cocaine seized from the defendants was actually crack

cocaine.     Thereafter, Estevez was indicted for conspiring to

distribute both powder and crack cocaine, see 21 U.S.C. § 846

(count 1); distributing 5 or more grams of crack cocaine, see

id.   § 841(a)(1)   (count   2);    distributing      50     or   more   grams   of

crack cocaine, see id. § 841(a)(1) (count 3); and tampering with

witnesses, see 18 U.S.C. §§ 1512(a)(2)(C), 1512(b)(3) (counts 4

and 5).    The jury convicted Estevez on the charge of conspiracy

to distribute powder cocaine and the two charges of distributing

crack cocaine; he was acquitted on the remaining charges.

            Estevez’s presentence report calculated a guidelines

range of 151 to 188 months in prison.             At the sentencing hearing

Estevez made two arguments relevant to this appeal.                      First, he

contended that the district court should take into account the

fact that his codefendant,         Chavez Paz, had received a sentence

of 70 months and that it would be improper for him to receive a

substantially higher sentence for engaging in identical conduct.

Second, he pointed out that the U.S. Sentencing Commission was

seeking    congressional     approval       of   guideline    amendments      that

would   reduce   the   sentencing    disparity       for     crack    and   powder

cocaine offenses.      Estevez’s sentencing exposure on his crack

cocaine convictions illustrate the disparity.                     At the time of

                                        3
Estevez’s sentencing, for example, a defendant, like Estevez,

convicted of distributing 5 grams of crack cocaine faced the

same sentence as a defendant who distributed 500 grams of powder

cocaine.        This disparity had come to be known as the “100:1

disparity” or the “crack/powder disparity.”                           The guidelines for

crack cocaine have since been amended to reduce this disparity.

U.S. Sentencing Commission Guidelines Manual (U.S.S.G.), supp.

to app. C, amend. 706 (2007); see U.S.S.G. § 2D1.1 (2008).

              At the time of Estevez’s sentencing, case law in this

circuit    did       not   permit     a     district        court    to     use    the     100:1

disparity       as    a    basis      for     a     variance        sentence      below     the

guidelines range for crack cocaine offenses.                              United States v.

Eura, 440 F.3d 625, 632-34 (4th Cir. 2006).                               In Estevez’s case

the   district        court     found       that     “the    Guideline          factors”    for

Estevez’s crack and conspiracy convictions had been “properly

assessed at a range of 151 to 188 months,” J.A. 56, and the

court imposed a sentence of 151 months.                              The court did not

discuss the crack/powder disparity arguments made by Estevez.

              Estevez      appealed       his       sentence,       and    on    November     6,

2007,     his    trial        counsel       filed      a    brief     under       Anders     v.

California, 386 U.S. 738 (1967), stating that he believed that

Estevez had no meritorious issues on appeal.                               On December 10,

2007,   the     Supreme       Court    decided        Kimbrough       v.    United    States,

which held that “it would not be an abuse of discretion for a

                                                4
district    court     to       conclude    when     sentencing               a    particular

defendant   that     the     crack/powder       disparity       yields           a    sentence

‘greater    than    necessary’      to    achieve       [18    U.S.C.]           § 3553(a)’s

purposes,    even    in    a    mine-run       case.”         128       S.   Ct.      at   575.

Kimbrough overruled United States v. Eura, which had made “the

crack/powder disparity effectively mandatory.”                          Id. at 564.

            In     January      2008     Estevez    filed           a     pro        se    brief

challenging his sentence as inconsistent with Kimbrough.                                     We

ordered supplemental briefing on Kimbrough’s effect on Estevez’s

appeal, and we twice appointed new counsel for him.                              The central

issue is whether we should order a new sentencing hearing to

allow the district court to reconsider Estevez’s sentence in

light of Kimbrough.



                                          II.

            The government argues that Estevez did not preserve a

Kimbrough-type objection to the district court’s treatment of

the crack/powder guidelines disparity as mandatory.                              In order to

preserve a claim of error, a party must “inform[] the court --

when the court ruling or order is made or sought -- of the

action the party wishes the court to take.”                             Fed. R. Crim. P.

51.   “While the Rule does not require surgical precision to

preserve error, the objection must be sufficient to ‘bring into

focus the precise nature of the alleged error.’” Exxon Corp. v.

                                           5
Amoco Oil Col., 875 F.2d 1085, 1090 (4th Cir. 1989) (quoting

Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).

              Estevez made two arguments at his sentencing hearing

that, taken together, were sufficient to preserve for appeal a

challenge       to     the     crack/powder           disparity         in     the    sentencing

guidelines.          First, he argued that he should receive a sentence

commensurate          with    that       of   his    codefendant,            Chavez     Paz,          who

engaged    in      identical       activity.            While     this       argument          did    not

mention the 100:1 disparity in so many words, the difference in

guidelines treatment for crack and powder cocaine offenses is in

part   the    foundation           for    the    argument.             One    of     the       primary

reasons      for      the     difference        between       Estevez’s         sentence             (151

months)      and      Chavez       Paz’s      (70     months)          was     that     Estevez’s

conviction was for crack cocaine, while Chavez Paz’s was for

powder cocaine.             This sentencing difference occurred despite the

fact that the pair engaged in the exact same criminal behavior.

Estevez    contends,          therefore,         that      his   request       for     parity          in

sentencing with Chavez Paz should thus be viewed as an argument

against      treating         powder      and       crack    cocaine          differently            for

sentencing purposes.               This argument is undercut to some extent

by   the     fact      that    the       basic      reason       for    the     difference            in

sentences       was    that     Chavez        Paz    was    mischarged         with        a    powder

cocaine      offense         and     managed         to     plead      guilty        before           the



                                                 6
government’s        lab   results      were       completed.           Nevertheless,      the

argument was grounded in the 100:1 disparity.

              Estevez’s position is bolstered by his second argument

in    district      court.       Estevez      emphasized         the    proposal    by    the

Sentencing       Commission       to   reduce          the    crack/powder       guidelines

disparity.          In doing so, he was asking the district court to

consider      the     Commission’s         proposal      as     confirmation      that    the

100:1 disparity was excessive and that a downward variance was

warranted.          This placed the crack/powder disparity before the

district      court    and   was   enough         to    bring    into    focus    Estevez’s

assertion that a sentence within the then-existing guidelines

range for crack offenses was greater than necessary to achieve

the goals of § 3553(a) in his case.                            In addition, Estevez’s

lawyer acknowledged, in obvious recognition of Eura, that he was

“preserv[ing] th[e] argument for Mr. Estevez.”                               J.A. 48.     The

government’s response at the hearing reveals that it understood

the    gist    of     Estevez’s    argument.             The    government       said     that

Estevez,      in      requesting       a    lighter          sentence     to     avoid    the

disparity, was “asking the Court to ignore the statutory scheme

as it exist[ed]” at the time.                J.A. at 53-54.

              Estevez’s      arguments       were       sufficient      to     preserve   his

objection      to     treating     the      guidelines         for     crack    cocaine    as

mandatory.       Because Estevez preserved his objection, and because

Kimbrough now makes clear that it was error for the district

                                              7
court to treat the crack cocaine guidelines as mandatory, the

burden is on the government to establish that the error was

harmless.   See United States v. Robinson, 460 F.3d 550, 557 (4th

Cir. 2006).   The government has not met its burden because it

has not pointed to anything in the record to indicate that the

district court would have imposed the same 151-month sentence on

Estevez if it had had the benefit of Kimbrough at the time of

sentencing. Estevez is therefore entitled to a new sentencing

hearing, which will allow the district court to reconsider the

sentence in light of Kimbrough.       Estevez’s sentence is vacated,

and his case is remanded for resentencing.



                                                VACATED AND REMANDED




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