                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          JUNE 30, 2008
                                    No. 07-12994
                              ________________________                  THOMAS K. KAHN
                                                                            CLERK

                          D. C. Docket No. 06-20653-CR-JAL

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                            versus

EVERETT WILLIAMS,
a.k.a. Ed Bush,
a.k.a. Eddie Joe,
                                                                   Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                       (June 30, 2008)

Before TJOFLAT and BLACK, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:

       *
          Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
      After pleading guilty to two counts of possession of crack cocaine with

intent to deliver, Everett Williams was sentenced to 140 months’ imprisonment, a

sentence at the bottom of the then-applicable sentencing guideline range. While

Kimbrough v. United States, — U.S. —, 128 S. Ct. 558 (2007), was still pending

before the United States Supreme Court, Williams filed this appeal challenging the

district court’s failure to consider whether the disparity between the guidelines for

powder and base cocaine resulted in a guideline range greater than necessary to

promote the purposes of sentencing in his case. The district court did not address

Williams’ challenge to the crack/powder disparity because it was foreclosed by

our precedent in United States v. Williams, 456 F.3d 1353, 1366-69 (11th Cir.

2006).

      On December 10, 2007, the Supreme Court issued its decision in

Kimbrough, which implicitly overruled our decision in Williams. See Kimbrough,

128 S. Ct. at 576. Shortly thereafter, the Court remanded United States v. Stratton,

519 F.3d 1305, 1306 (11th Cir. 2008), a case in which the defendant raised a claim

identical to the one Williams raises here. After noting the district court had (1)

rejected its authority to consider the crack/powder disparity at sentencing and (2)

had not indicated whether it would have entered the same sentence if it had

authority to do so, we remanded the case to the district court “for the limited

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purpose of resentencing [the defendant] in light of Kimbrough.” Id. at 1306-07.

The Court explained:

      [A]s this is a limited remand to permit the district court to reconsider
      the § 3553(a) factors in light of the Supreme Court’s holding in
      Kimbrough, Stratton may not re-argue other issues already decided or
      necessarily decided during his two prior sentencings that either were
      affirmed on direct appeal or could have been, but were not, raised by
      him during his direct appeals. However, the district court may, if it
      wishes to do so, combine this resentencing proceeding on remand
      with any additional proceeding the district court may determine is
      appropriate in light of the retroactive application of Amendment 706
      to the crack-cocaine guidelines effective March 3, 2008.

Id. at 1307 (internal citations omitted).

      The same result is appropriate in this case. In light of Kimbrough,

Williams’ sentence was procedurally unreasonable because the district court failed

to treat the 100:1 sentencing ratio between crack and powder cocaine sentences as

advisory. See Gall v. United States, — U.S. —, 128 S. Ct. 586, 597 (2007)

(significant procedural errors at sentencing include “treating the Guidelines as

mandatory”). Moreover, the district court did not address whether it would have

imposed the same sentence had it been free to treat the crack/powder disparity as

advisory. The court did indicate that Williams deserved a sentence above the

mandatory minimum term of 120 months’ incarceration; however, it is not clear

whether the court would have entertained a sentence of less than 140 months had



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it treated the Sentencing Guidelines as wholly advisory. Consequently, we remand

the case to the district court for the limited purpose of resentencing Williams in

light of Kimbrough. See Stratton, 519 F.3d at 1307. The Court is free to combine

the resentencing proceeding with any additional proceeding the district court may

determine appropriate in light of the retroactive application of Amendment 706 to

the crack-cocaine guidelines.

      REVERSED AND REMANDED.




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