                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                Nos. 05-4301/06-1049
                                 ________________

United States of America,                   *
                                            *
      Appellee/Cross Appellant,             *
                                            *      Appeal from the United States
      v.                                    *      District Court for the
                                            *      Northern District of Iowa.
Tyrone Judon, also known as                 *
Antwon,                                     *      [UNPUBLISHED]
                                            *
      Appellant/Cross-Appellee.             *

                                 ________________

                            Submitted: February 14, 2008
                                Filed: July 1, 2008
                                ________________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
                            ________________

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
reconsideration in light of Kimbrough v. United States, 552 U.S. ---, 128 S. Ct. 558
(2007). After reconsidering Tyrone Judon’s sentence as directed by the Supreme
Court, we again vacate and remand for resentencing.1


      1
        We reinstate the vacated opinion of United States v. Judon, 472 F.3d 575 (8th
Cir. 2007), vacated, 552 U.S. ---, 128 S. Ct. 860 (2008), with the exception of Section
II.D.3. We also note that Gladger Ross, Jr., another defendant in this case, did not file
       In Kimbrough, the Supreme Court rejected the position that the crack/powder
cocaine disparity created by the 100:1 ratio between crack and powder cocaine in the
United States Sentencing Guidelines was mandatory and held that “under [United
States v. Booker, 543 U.S. 220 (2005)], the cocaine Guidelines, like all other
Guidelines, are advisory only.” Id. at 564. After holding that a district court “may
consider the disparity between the Guidelines’ treatment of crack and powder cocaine
offenses,” id., it further stated that “[i]t would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant that the
crack/powder [cocaine] disparity yields a sentence ‘greater than necessary’ to achieve
[18 U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” Id. at 575. However, as
this court observed in United States v. Spears, also on remand from the Supreme
Court, “the district court may not categorically reject the ratio set forth by the
Guidelines.” --- F.3d ---, 2008 WL 2485329, at *1 (8th Cir. June 23, 2008) (en banc).

        In our previous Judon opinion, we reviewed the district court’s decision to
sentence Judon to 50 months’ imprisonment. At sentencing, the district court first
determined that the 100:1 ratio between crack and powder cocaine resulted in a total
offense level of 26. The district court then applied a 20:1 ratio, instead of a 100:1
ratio, to calculate a revised offense level and guidelines range. Like the district court
in Spears, the district court here said it was adopting United States v. Perry, 389 F.
Supp. 2d 278 (D.R.I. 2005), abrogated by United States v. Pho, 433 F.3d 53 (1st Cir.
2006), abrogated by Kimbrough, 128 S. Ct. 558, as recognized in United States v.
Rodriguez, --- F.3d ---, 2008 WL 2265898 (1st Cir. June 4, 2008), where the district
court chose to impose a 20:1 ratio, instead of the Guidelines’ 100:1 ratio, because the
100:1 ratio “cannot withstand the scrutiny imposed by sentencing courts when the §
3553 factors are applied.” Id. at 307. On appeal, we reversed the district court’s
decision to “var[y] under § 3553(a) based solely on its rejection of the 100:1 drug



a petition for writ of certiorari with the Supreme Court. Therefore, our previous
rulings with respect to Ross’s conviction and sentence remain unchanged.

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quantity ratio between crack and powder cocaine” and vacated Judon’s sentence.
Judon, 472 F.3d at 585-87.

        Reviewing Judon’s sentence in light of Kimbrough and our recent Spears
decision, we again vacate Judon’s sentence and remand for resentencing. In Spears,
we held that “[n]othing in Kimbrough suggests the district court may substitute its
own ratio for the ratio set forth in the Guidelines.” Spears, 2008 WL 2485329, at *2.
In sentencing Judon, the district court substituted a 20:1 ratio based on Perry and did
not vary based on an individualized assessment of the particular circumstances in
Judon’s case. See id. at *1. The district court simply “establish[ed] a ratio of its
own.” Kimbrough, 128 S. Ct. at 575. Therefore, as in Spears, we must vacate Judon’s
sentence and remand for resentencing consistent with this opinion. Judon’s conviction
is affirmed for the reasons set forth in our prior opinion. Judon, 472 F.3d at 582-83.
                         ______________________________




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