                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   March 3, 2008
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,
          Plaintiff–Appellee,                            No. 05-3488
          v.                                    (D.C. No. 04-CR-20140-CM)
 MARDELL TROTTER, a/k/a Juice,                            (D. Kan.)
 a/k/a Dell,
          Defendant–Appellant.


ORDER ON REMAND FROM THE UNITED STATES SUPREME COURT *


Before MURPHY, McKAY, and GORSUCH, Circuit Judges.


      This case is before us on remand from the United States Supreme Court.

Defendant was convicted of, inter alia, distribution and possession of cocaine

powder and crack cocaine. See United States v. Trotter, 483 F.3d 694, 697 (10th

Cir. 2007). On appeal, we affirmed his conviction and sentence. Id. at 703. We

rejected his argument that the district court erred by failing to impose a lower

sentence based on the crack/powder cocaine disparity, holding that this argument

was foreclosed by our decision in United States v. McCullough, 457 F.3d 1150,

1171-72 (10th Cir. 2006). Id. The Supreme Court subsequently granted certiorari



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and vacated and remanded this case for further consideration in light of

Kimbrough v. United States, 552 U.S. ____, 128 S. Ct. 558 (2007).

      As discussed more thoroughly in the companion case of United States v.

Trotter, No. 05-3487, ____F.3d____ (10th Cir. 2008), our opinion on remand in

Defendant’s co-defendant’s case, the Court held in Kimbrough that “it would not

be an abuse of discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a sentence ‘greater

than necessary’ to achieve § 3553(a)’s purposes.” 128 S. Ct. at 576. The Court

concluded in Kimbrough that the district court properly considered both the

particular circumstances of the defendant’s case and “the Sentencing

Commission’s consistent and emphatic position that the crack/powder disparity is

at odds with § 3553(a).” Id.

      As in the companion case, we find the sentencing transcript in the record

before us ambiguous as to whether the district court rejected Defendant’s request

for a variance based on a belief that the crack/powder disparity did not warrant a

variance under the specific circumstances of Defendant’s case or on a belief that

the disparity would not warrant varying from the Guidelines in any case. We

therefore REMAND this case for the district court to clarify why it rejected

Defendant’s request. If it rejected his request based on a belief that it did not

have discretion to specifically consider whether the disparity resulted in a




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disproportionately harsh sentence, the court is to conduct resentencing in light of

Kimbrough.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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