                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                FILED
                                  No. 05-14932         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                          ________________________            May 6, 2008
                                                          THOMAS K. KAHN
                   D.C.   Docket No. 04-00156-CR-T-30-EAJ      CLERK

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

THOMAS MCGOWAN, a.k.a. Shank,

                                                       Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________
                                (May 6, 2008)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:

      This case is before us on remand from the Supreme Court for

reconsideration of our review of Thomas McGowan’s sentence in light of
Kimbrough v. United States, 522 U.S. ___, 128 S. Ct. 558 (2007). McGowan v.

United States, ___ U.S. ___, 128 S. Ct. 859 (2008). We previously affirmed

McGowan’s sentence for possession with intent to distribute five grams or more of

cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii).

United States v. McGowan, 211 Fed. Appx. 886 (11th Cir. 2006). We reconsider

our opinion only to the extent that it rejected McGowan’s attacks, at sentencing,

on the disparity in the Sentencing Guidelines of the treatment of crack and powder

cocaine offenses (“the crack/powder disparity”).

                                I. BACKGROUND

      McGowan pleaded guilty. The district court imposed a sentence of 188

months, the lowest sentence available under the Guidelines, and McGowan

appealed. We vacated McGowan’s sentence and remanded for resentencing in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because the

district court had treated the Guidelines as mandatory. United States v. McGowan,

134 Fed. Appx. 359, 362-63 (11th Cir. 2005). Following a resentencing hearing,

the district court imposed a prison sentence of 180 months.

      McGowan appealed this sentence. We affirmed, holding that the district

judge properly stated the reasons for his sentence pursuant to 18 U.S.C. §

3553(c)(2), and that the sentence was reasonable. United States v. McGowan, 211

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Fed. Appx. 886 (11th Cir. 2006). We expressly rejected McGowan’s arguments

against the wisdom of the Guidelines’ crack/powder disparity: “McGowan’s

crack-to-cocaine and career offender arguments are attacks on the Guidelines that

we have previously rejected.” Id. at 889 n.2 (citing United States v. Williams, 456

F.3d 1353, 1367 (11th Cir. 2006)). The Supreme Court subsequently vacated the

judgment and remanded this case to us for further consideration in light of

Kimbrough, which held that a district court does not abuse its discretion if it

disagrees, as a matter of policy, with the Guidelines’ crack/powder disparity.

McGowan v. United States, ___ U.S. ___, 128 S. Ct. 859 (2008).

                                 II. DISCUSSION

      A.     The Resentencing Hearing

      Prior to his resentencing hearing, McGowan submitted a memorandum to

the district court, quoting extensively from a United States Sentencing

Commission report (“the Report”) identifying the crack/powder disparity as

adversely impacting African-American offenders. (R.44 at 7.) McGowan argued

that both the career offender guideline and the crack/powder disparity led to a

Guideline calculation that was significantly greater than necessary to serve the

purposes of sentencing. He asked the court to sentence him based on a 20-to-1

ratio instead of 100-to-1, which would have produced a Guideline range of 92-115

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months. At the resentencing hearing, McGowan’s counsel explicitly argued that

the crack/powder disparity was unreasonable:

      I think the Commission’s report is significant in light of Booker,
      because as I have argued in my memorandum, Booker instructs the
      courts to impose sentences that are reasonable, not in light of the
      guidelines, but in light of 3553(a), of which there are seven factors,
      the guidelines being only one of the seven.

      So, the Sentencing Commission itself has recognized that there are
      problems with the career offender guideline, both in its application,
      disproportionately impacting African American offenders . . . .

      The Commission has also repeatedly criticized the 100-to-1 crack-to-
      powder sentencing disparity between crack cocaine and powder
      cocaine, saying that the pharmacological differences between the two
      drugs just don’t justify that jump.

      Based on those two points, which I took from the Sentencing
      Commission, I proposed a 20-to-1 ratio for Mr. McGowan of what his
      sentence might have been if he had sold powder cocaine instead of
      crack cocaine . . . .

(R.52 at 5-6.) The Government responded to these arguments, implying that the

court could not reduce a sentence based on a policy disagreement with the

Guidelines: “As to [McGowan’s counsel’s] arguments, I believe some of those

have been – the Sentencing Commission has voiced those to Congress, and that

has not been changed.” (Id. at 9.) The sentencing judge did not address

McGowan’s crack/powder disparity argument.




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      At the time of McGowan’s resentencing, the district court had no direct,

post-Booker precedent from this Circuit addressing its discretion to reduce a

sentence based on a policy disagreement with the crack/powder disparity. We had

held, prior to Booker, that a reduction of a sentence on this basis would have

constituted an abuse of discretion. See United States v. Hanna, 153 F.3d 1286

(11th Cir. 1998); United States v. King, 972 F.2d 1259 (11th Cir. 1992). After

McGowan’s resentencing, we reaffirmed Hanna and King: “The 100-to-1 drug

quantity ratio not only reflects Congress’s policy decision that crack offenders

should be punished more severely, but also reflects its choice as to how much

more severe the punishment should be. Federal courts are not at liberty to supplant

this policy decision.” United States v. Williams, 456 F.3d 1353, 1367 (11th Cir.

2006).

      B.     Kimbrough v. United States

      Kimbrough overruled Williams: “A district judge must include the

Guidelines range in the array of factors warranting consideration. The judge may

determine, however, that, in the particular case, a within-Guidelines sentence is

‘greater than necessary’ to serve the objectives of sentencing. In making that

determination, the judge may consider the disparity between the Guidelines’




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treatment of crack and powder cocaine offenses.” Kimbrough, ___ U.S. at ___,

128 S. Ct. at 564 (citation omitted).

       In light of Kimbrough, we have vacated sentences where the sentencing

judge had not been permitted to consider the defendants’ arguments that the

crack/powder disparity was bad policy.1 We have affirmed sentences where the

crack/powder disparity issue was raised for the first time on appeal,2 and when the

sentencing judge stated that the Guidelines were “too high” and reduced the

sentence accordingly.3

       Other circuits have addressed Kimbrough. In United States v. Trotter, 518

F.3d 773 (10th Cir. 2008), the defendant argued at sentencing that the district

court was free to consider the crack/powder disparity. The Government responded

that the court could not address these arguments, and the district court did not

address them. The Tenth Circuit remanded the sentence for reconsideration in light

of Kimbrough: “We are unable to tell from the sentencing transcript whether the



       1
         United States v. Tolbert, No. 07-14925, 2008 WL 879981 (11th Cir. Apr. 3, 2008); United
States v. Dawson, No. 06-16372, 2008 WL 194914 (11th Cir. Jan. 24, 2008); United States v.
Stratton, 519 F.3d 1305 (11th Cir. 2008).
       2
         United States v. Berggren, No. 07-12796, 2008 WL 565095, at *2 (11th Cir. Mar. 4, 2008)
(“Nothing in either the decision of the Supreme Court in Kimbrough or in our precedents obliged
the district court to consider the powder-crack disparity.”)
       3
           United States v. White, No. 07-11260, 2008 WL 747616 (11th Cir. Mar. 21, 2008).

                                                6
district court’s rejection of Defendant’s argument was based on its conclusion that

the crack/powder disparity did not warrant a below-Guidelines sentence in

Defendant’s particular case—a permissible conclusion under Kimbrough—or on

its acceptance of the Government’s argument that the disparity could not

constitute a valid reason for varying from the Guidelines in any case—a position

that has been overruled by Kimbrough.” Id. at 774.

      Here, it is appropriate to remand to the district court for reconsideration in

light of Kimbrough. We are left in doubt as to whether the district court

understood that it would not have abused its discretion if it had reduced

McGowan’s sentence based on a policy disagreement with the crack/powder

disparity. See United States v. Regalado, 518 F.3d 143, 147 (2nd Cir. 2008)

(“Since the district court was, quite understandably, unaware of (or at least

insecure as to) its discretion to consider that the 100-to-1 ratio might result in a

sentence greater than necessary, there was an unacceptable likelihood of error.”);

United States v. Bush, No. 07-1307, 2008 WL 1745342, *1 (7th Cir. Apr. 17,

2008) (“we remand for resentencing because it is unclear from the record whether

the district court would have imposed a lesser sentence had it not believed it was

constrained by the 100:1 ratio.”); United States v. Roberson, 517 F.3d 990, 995

(8th Cir. 2008) (“When a district court does not consider an argument because it is

                                           7
unaware of its power to do so, however, a remand is appropriate. . . . It is unclear

whether the district court declined to use its discretion in the requested manner

because of then-current Eighth Circuit precedent or because it did not find that the

disparity warranted any variance from the guidelines.”). The Government argues

that the district court did consider, and reject, McGowan’s argument regarding the

crack/powder disparity. But there is no indication in the record that the court

considered this argument, or that it believed it lawfully could. In fact, if the district

court had reduced McGowan’s sentence based on the unfairness of the

crack/powder disparity, we would have reversed in light of Williams.4 We cannot

presume that the district court, anticipating Kimbrough, understood that it would

not have abused its discretion if it had reduced McGowan’s sentence because it

viewed the crack/powder disparity to be unfair. See United States v. Taylor, No.

06-4123, 2008 WL 782739, *2 (7th Cir. Mar. 26, 2008) (“[T]he fact that a

judge—the judge in this case for example—does not say anything about the ratio

cannot be taken to mean that he (in this case she) thinks it is fine.”); United States

v. Padilla, No. 06-4370, 2008 WL 833994, *7 (7th Cir. Mar. 31, 2008) (“The

district court did not address his agreement or disagreement with the 100:1 ratio,



      4
        We affirmed McGowan’s sentence after Williams was decided, but before Kimbrough
overruled it.

                                            8
making no comments about whether he thought he could consider the disparity in

rendering a sentence. But we need not infer from his silence that the district court

agreed with the 100:1 ratio.”).

      We remand to the district court to give it an opportunity to indicate whether

it would have imposed a different sentence if it had understood that it had

discretion to disagree with the Guidelines policy expressed in the crack/powder

disparity. If the district court concludes that consideration of the crack/powder

disparity would make no difference in McGowan’s sentence, it need not conduct a

resentencing hearing, and may simply reenter the sentence previously imposed.

      The sentence is VACATED and the case is REMANDED to the sentencing

court for reconsideration consistent with this opinion.




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