                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 07-1307
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

LAMONT BUSH,
                                           Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
          No. 06-CR-98-001—J.P. Stadtmueller, Judge.
                       ____________
    ARGUED NOVEMBER 14, 2007—DECIDED APRIL 17, 2008
                       ____________


 Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Lamont Bush was sentenced
to 96 months’ imprisonment after pleading guilty to
distributing more than 50 grams of crack cocaine. See 21
U.S.C. §§ 841(a)(1), (b)(1)(A); 18 U.S.C. § 2. On appeal,
he argues that the court imposed an unreasonable sen-
tence because it refused to consider his argument chal-
lenging the disparity between the sentencing guidelines’
recommended sentences for offenses involving crack co-
caine and those involving powder cocaine, the so-called
100:1 ratio or crack/powder differential. In light of the
Supreme Court’s recent decision in Kimbrough v. United
2                                              No. 07-1307

States, 128 S. Ct. 558 (2007), 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.
  Lamont Bush, a 33-year-old Milwaukee native, sold 78
grams of crack to a confidential informant for $3,000. He
was charged with distributing more than 50 grams of crack,
see 21 U.S.C. §§ 841(a)(1), (b)(1)(A); 18 U.S.C. § 2, and
knowingly possessing a firearm that was not registered
to him in the National Firearms Registration and Transfer
Record, see 26 U.S.C. §§ 5861(d), 5871. Shortly thereafter
the government filed a “§ 851 information,” notifying
Bush that it intended to rely on his prior conviction for
a drug felony to subject him to a mandatory minimum
sentence of 20 years’ imprisonment pursuant to 21
U.S.C. §§ 841(b)(1)(A), 851. Bush agreed to plead guilty
to the distribution count in exchange for the govern-
ment dropping the firearms count and agreeing to recom-
mend, in its discretion, a reduction for his substantial
assistance to authorities.
  The government satisfied its end of the bargain and
moved not only for a two-level reduction based on Bush’s
substantial assistance to authorities, see U.S.S.G. § 5K1.1,
but also to dismiss the § 851 information that had in-
creased Bush’s mandatory minimum to 20 years’ impris-
onment. The government further moved to release
Bush from the normal mandatory minimum sentence of
10 years’ imprisonment. The court granted the govern-
ment’s motion in its entirety, which resulted in a sen-
tencing range of 100 to 125 months’ imprisonment after
taking into account Bush’s criminal history category of
IV. Bush then insisted that his sentence should be re-
duced still further, to 63 months, based in part on what
he perceived as the unfairness of the 100:1 crack/powder
No. 07-1307                                                3

ratio. Bush relied on a brief written by members of the
Senate Judiciary Committee arguing that 18 U.S.C.
§ 3553(a) empowers a sentencing court to consider the
impact that the 100:1 ratio has on African-American
defendants, families, and communities, as well as
the public’s confidence in the criminal justice system.
Though the district court acknowledged the controversy
surrounding the issue, it emphasized that it was “con-
strained to follow” the 100:1 ratio as established by Con-
gress. The court ultimately sentenced Bush to 96 months’
imprisonment.
  After we heard arguments in this case, the Supreme
Court announced its decision in Kimbrough. We asked
the parties to submit supplemental briefs assessing the
affect of Kimbrough on Bush’s appeal. Bush argued that
Kimbrough required us to vacate and remand for
resentencing so that the district court could consider his
contentions regarding the 100:1 ratio. The government
agreed that Bush should be resentenced because Kim-
brough was incompatible with the district court’s belief
that it was “constrained to follow” the 100:1 ratio.
   We review sentences for reasonableness. United States
v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005). To determine
a defendant’s sentence, the district court must engage in
a two-step process. United States v. Sachsenmaier, 491
F.3d 680, 685 (7th Cir. 2007); United States v. Jointer, 457
F.3d 682, 686 (7th Cir. 2006). First it must calculate and
consider the sentence recommended by the advisory
sentencing guidelines. United States v. Booker, 543 U.S. 220,
264 (2005); Sachsenmaier, 491 F.3d at 685; Mykytiuk, 415
F.3d at 607. Then, to ascertain the actual sentence, it must
apply the criteria set forth in § 3553(a) to the facts and
circumstances of the defendant’s particular case.
Sachsenmaier, 491 F.3d at 685; Jointer, 457 F.3d at 686.
4                                                 No. 07-1307

   Before Kimbrough was decided, our position was that
a district court may not reduce the 100:1 ratio when
initially calculating the appropriate sentencing range for
a crack-related offense. See Jointer, 457 F.3d at 686-87;
United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006);
United States v. Wallace, 458 F.3d 606, 611 (7th Cir. 2006). We
nevertheless had held that a district court could con-
sider criticism of the 100:1 ratio to the extent the criticism
was refracted through the court’s application of the
§ 3553(a) factors to an individual defendant’s facts
and circumstances. Jointer, 457 F.3d at 687-88. But we
had held that a district court committed reversible error
if it accepted a defendant’s invitation to ignore or modify
the ratio because it is simply unfair or an unwise policy.
See id. at 686-88; Miller, 450 F.3d at 275-76.
  In Kimbrough, however, the Supreme Court rejected the
argument that Congress had mandated that sentencing
courts apply the 100:1 ratio to all crack offenses, 128 S. Ct.
at 570-74, and noted that the Sentencing Commission itself
disfavors the ratio, see id. at 575. The Supreme Court
reaffirmed that the district court must continue to cal-
culate and consult the guidelines, but it may sentence a
crack offender below the guidelines range in a routine
case if it believes the 100:1 ratio alone punishes the defen-
dant in excess of what is justified under the § 3553(a)
factors. See id. at 571 n.13, 575-76.
  In this case, Bush argued that the 100:1 ratio dispropor-
tionately affects African-American defendants, families,
and their communities, and he mentioned that, in gen-
eral, § 3553(a) enables the court to consider the ratio
when imposing a sentence. Bush did not elaborate how
the 100:1 ratio affected his particular circumstances. The
district court responded that it could not alter the ratio:
No. 07-1307                                                 5

    I appreciate and know full well . . . the matter of
    disparity between crack and powder cocaine.
    Fortunately or unfortunately the matter remains
    unresolved. But for the moment the Court of
    Appeals in this Circuit has spoken. It is not a basis
    for the Court to impose a sentence other than
    what might otherwise be appropriate. . . . For
    whatever reason, Congress has determined—you
    can call it stubbornness, or the will of the vot-
    ers—not to revisit the subject. Whether that will
    maintain itself for posterity remains to be seen. But
    for the moment that is the law, and this Court is
    constrained to follow it.
At the time of sentencing, the district court’s conclusion
was consistent with our position that the court was pro-
hibited from reducing Bush’s sentence solely on the basis
of opposition to the 100:1 ratio as a matter of policy. See
Jointer, 457 F.3d at 686-88; Miller, 450 F.3d at 275-76. But
as the government concedes, the court’s comments sug-
gest that it may have taken “matters into his own hands”
and been receptive to Bush’s argument that the 100:1 ratio
is unjust had it not felt obligated to abide by our pre-
Kimbrough precedents as well as the will of Congress.
Kimbrough has since clarified that Congress did not man-
date the application of the 100:1 ratio to all crack offenses.
128 S. Ct. at 570-74. The court may reduce a defendant’s
sentence below the guidelines range in a routine crack
related case if it is convinced that the ratio alone unfairly
punishes the defendant. See id. at 571 n.13, 575-76. Accord-
ingly, we VACATE the judgment of the district court and
REMAND for resentencing because it is not constrained
to apply the 100:1 ratio to Bush.

                    USCA-02-C-0072—4-17-08
