                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             April 3, 2008
                              No. 07-14925                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 07-00151-CR-WTM-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DESMOND KEITH TOLBERT,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 3, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Desmond Keith Tolbert appeals his 63-month sentence imposed after his
guilty plea to possession with intent to distribute 5 grams or more of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1). After review, we vacate Tolbert’s sentence

and remand to the district court for resentencing in light of Kimbrough v. United

States, 552 U.S. ___, 128 S. Ct. 558 (2007).

                                I. BACKGROUND

      Tolbert pled guilty to one count of possession with intent to distribute crack

cocaine, in violation of 21 U.S.C. § 841(a)(1), and stipulated that the amount in

possession was 5 grams or more of crack cocaine. According to the presentence

investigation report (“PSI”), Tolbert was involved in two separate sales of crack

cocaine. Although the drug quantity of the first sale was unknown, the second sale

involved 1.31 grams of crack cocaine. While arresting Tolbert at his residence,

police found an additional 24.88 grams of crack cocaine. Thus, 26.19 grams of

crack cocaine were attributed to Tolbert.

      In August 2007, the PSI calculated a base offense level of 28, pursuant to the

then existing U.S.S.G. § 2D1.1(c)(6), based on a drug quantity between 20 and 35

grams of crack cocaine, and applied a 3-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a), (b). Based on an adjusted offense

level of 25 and a criminal history category of II, the PSI calculated an advisory

guidelines range of 63 to 78 months’ imprisonment. The statutory minimum



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sentence was 60 months’ imprisonment.

       Tolbert filed a written objection to the PSI’s base offense level calculation,

claiming that he should receive a base offense level of 14 (the offense level for the

same amount of cocaine powder) because there was no scientific justification for

the guidelines disparity between crack cocaine and powder cocaine offenses. In a

separate sentencing memorandum, Tolbert argued that, after United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court should consider the

factors listed in 18 U.S.C. § 3553(a), including the need to avoid unwarranted

sentencing disparities in § 3553(a)(6). Tolbert further argued under § 3553(a)(6)

that the 100:1 crack/powder ratio in the guidelines leads to substantial unwarranted

sentencing disparities. Tolbert also noted that the Sentencing Commission had

sent Congress a proposed amendment to reduce the disparity by lowering the base

offense level for crack cocaine offenses by two levels, which would likely become

effective November 1, 2007.1 Thus, Tolbert requested the statutory minimum 60-

month sentence.


       1
         In May 2007, the Sentencing Commission submitted proposed guidelines amendments
to Congress that included, inter alia, a two-level reduction to the base offense levels in U.S.S.G.
§ 2D1.1(c) for crack cocaine violations. See Amendments to the Sentencing Guidelines for
United States Courts, 72 Fed. Reg. 28571-72 (2007). The amendment to § 2D1.1(c) became
effective on November 1, 2007. See U.S.S.G. app. C, amend. 706 (Supp. 2007); see also 28
U.S.C. § 994(p) (stating that proposed amendments “take effect on a date specified by the
Commission . . . except to the extent that the effective date is revised or the amendment is
otherwise modified or disapproved by Act of Congress”). Tolbert was sentenced before the
effective date of this amendment.

                                                 3
      At the October 12, 2007 sentencing hearing, Tolbert raised his objection to

the crack/powder disparity and noted the Sentencing Commission’s proposed

amendment to the guidelines. The district court responded that it had “always been

of the opinion . . . that the sentencing guidelines – the hundred-to-one ratio

between powder cocaine and crack cocaine in fact created a disparity, which the

guidelines were designed to do away with. I have felt like that the guideline range

for crack cocaine was too high.” However, the district court noted the numerous

times in which the Sentencing Commission had previously recommended changing

the crack cocaine guidelines, and Congress’s unwillingness to make that change.

The district court opined that, even if they did make the change, “more than likely

they’re not going to make it retroactive.” The district court further stated:

      Now, whether they’re going to make that change, or whether they
      make that change, I don’t know. But we’re here today having a
      sentence based on the current state of the law, and that’s what we’re
      going to follow today, the current state of the law, and not what some
      subjective thing that Congress might do in the future.

      The district court adopted the PSI’s fact findings and overruled Tolbert’s

objections to the crack/powder disparity. After recognizing that the guidelines

were advisory and considering the § 3553(a) factors, the district court sentenced

Tolbert to 63 months’ imprisonment, the low end of the advisory guidelines range,

and 5 years’ supervised release. The district court found no basis for a departure



                                           4
from the advisory guidelines range. The parties raised no further objections after

sentencing. The instant appeal followed.

                                 II. DISCUSSION

      This Court held in United States v. Williams, 456 F.3d 1353 (11th Cir.

2006), that federal courts were “not at liberty to supplant [Congress’s] policy

decision” that “crack offenders should be punished more severely.” Id. at 1367. In

Kimbrough, the Supreme Court overruled Williams and determined 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 [18 U.S.C.] § 3553(a)’s purposes.” Kimbrough, 552 U.S. at

___, 128 S. Ct. at 575.

      In a recent decision involving a case remanded from the Supreme Court in

light of Kimbrough, this Court vacated and remanded to the district court for

resentencing consistent with Kimbrough after determining that (1) the defendant

had raised a “Kimbrough-type claim” in the district court and in his initial appeal,

(2) the district court had rejected the defendant’s claim that the court had authority

to consider the crack/powder disparity as a sentencing factor and had not indicated

that it would enter the same sentence even if it had such authority, and (3) this

Court’s opinion in the defendant’s first appeal had relied on Williams, which was



                                           5
overruled by Kimbrough. United States v. Stratton, ___ F.3d ___, 2008 WL

656514, at *1-2 (11th Cir. Mar. 13, 2008).

      The same factors found in Stratton are present here and warrant vacating and

remanding Tolbert’s sentence in light of Kimbrough. Tolbert raised a

“Kimbrough-type claim” in the district court that the crack/powder ratio resulted in

unwarranted sentencing disparities. However, the district court recognized the

disparity but essentially indicated that, based on the current law, it could not reduce

Tolbert’s sentence due to the crack/powder disparity. The state of the law at the

time of Tolbert’s sentencing was Williams, which held that the district court did

not have the authority to consider the crack/powder disparity at sentencing. As

noted earlier, Kimbrough overruled Williams. Thus, while the district court did

not err in calculating Tolbert’s advisory guidelines range under the guidelines in

effect at the time of sentencing, the district court, in light of Kimbrough, did err in

concluding it was unable to consider the crack/powder disparity as a sentencing

factor under § 3553(a).

      Finally, the district court did not state that it would impose the same

sentence if it could consider the crack/powder disparity. To the contrary, the

district court stated that it had “always been of the opinion” that the 100:1

crack/powder ratio “in fact created a disparity” and “that the guideline range for



                                            6
crack cocaine was too high.”

      Therefore, we vacate Tolbert’s sentence and remand this case to the district

court for the limited purpose of resentencing Tolbert in light of Kimbrough.

      VACATED AND REMANDED.




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