                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2169
                                   ___________

United States of America,            *
                                     *
      Plaintiff - Appellee,          *
                                     * On remand for reconsideration
      v.                             * from the United States Supreme Court
                                     *
David Tabor, also known as Country, *
also known as Big Country,           *
                                     *
      Defendant - Appellant.         *
                                ___________

                             Submitted: February 20, 2008
                                Filed: July 10, 2008
                                 ___________

Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
                            ___________

JOHN R. GIBSON, Circuit Judge.

       This case was vacated and remanded to us by the United States Supreme Court
for reconsideration in light of Kimbrough v. United States, 128 S. Ct. 558 (2007).
Tabor v. United States, 128 S. Ct. 1060 (2008). After reconsideration of Tabor’s
appeal as directed by the Supreme Court, we affirm his conviction for conspiracy to
distribute and possess with intent to distribute fifty grams or more of a mixture or
substance containing cocaine base (crack cocaine) in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1), and 846. Consequently, we reinstate Parts I, II, and III of our
prior panel opinion as unaffected by Kimbrough. United States v. Tabor, 439 F.3d
826 (8th Cir. 2006). We do not reinstate Part IV of the panel opinion affirming
Tabor’s sentence because we conclude that his sentence should be reversed and the
case remanded to the district court for re-sentencing in light of the Supreme Court’s
holding in Kimbrough.

       On appeal, Tabor argues that the district court erred when it refused to consider
that the crack cocaine Guidelines were “irrational” and resulted in “unfair and
disparate sentences as compared to sentences for powder cocaine.” Tabor, 439 F.3d
at 830. Specifically, he urged the district court to vary from the advisory Guidelines
range and impose a lower sentence. Instead, the district court imposed a sentence of
200 months in a written order filed April 18, 2005. United States v. Tabor, 365 F.
Supp. 2d 1052, 1062 (D. Neb. 2005). This sentence was near the bottom of the
advisory sentencing range of 188 to 235 months.

                                           I.

       Like all versions prior to the recent amendments, the Guidelines in effect at
Tabor’s sentencing advised that “a drug trafficker dealing in crack cocaine is subject
to the same sentence as one dealing in 100 times more powder cocaine.” Kimbrough
v. United States, 128 S. Ct. 558, 564 (2007); USSG § 2D1.1(c) (drug quantity table)
The crack/powder cocaine disparity was long criticized, but an attempt in 1995 by the
Sentencing Commission to eliminate the disparity was blocked by Congress.
Kimbrough, 128 S. Ct. at 569. Despite continued urging by the Commission to lessen
the disparity, Congress took no action except to direct the Commission to propose
revisions of the drug quantity ratio. Id. Finally, last year the Commission adopted
“modest” changes to the Guidelines that reduced “the base offense level associated
with each quantity of crack by two levels.” Id.; Amendments to the Sentencing
Guidelines for United States Courts, 72 Fed. Reg. 28558, 28572-574 (May 21, 2007).
This time, however, Congress did not exercise its power to block the amendments, and
the changes became effective on November 1, 2007. Kimbrough, 128 S. Ct. at 564.
There still exists a disparity between crack and powder cocaine ranges, but the

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disparity is no longer based on the 100-to-1 quantity ratio. Id. at 573 (explaining that
the quantity disparity is now variable and ranges between 25-to-1 and 80-to-1); id. at
569 n.10 (explaining that the 100-to-1 ratio still exists when the amount of cocaine
base is either five or fifty grams because those amounts trigger mandatory minimum
sentences effected by Congress, which were derived using the 100-to-1 ratio).

       These facts set the stage for Kimbrough, and in late 2007 the Supreme Court
held that a district court may vary from the advisory sentencing range solely on the
basis of its disagreement with the extent of the crack/powder disparity if it concludes
that the “disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)'s
purposes, even in a mine-run case.” Id. at 575 (quoting 18 U.S.C. § 3553(a)). Tabor’s
sentencing occurred much earlier, however, on April 18, 2005. United States v.
Tabor, 365 F. Supp. 2d 1052, 1052 (D. Neb. 2005). It followed by only a few months
the Supreme Court’s landmark decision in United States v. Booker, 543 U.S. 220 (Jan.
12, 2005), which rendered the Guidelines “effectively advisory,” id. at 245, and
instructed appellate courts to review a sentence for reasonableness, id. at 261. With
very little guidance in the way of post-Booker jurisprudence, the district court was
called upon by Tabor to vary from his advisory sentencing range on the basis of the
crack/powder disparity. Tabor, 365 F. Supp. 2d at 1054. The sentencing judge
declined the invitation in a thoughtful written order. He explained that he had two
reasons for not varying from the crack cocaine Guidelines despite his personal
disagreement with them. Id. at 1059 n.9. His principal reason was deference to
Congress’s intent; he wrote, “As a judge, I should defer to the choice of penalties that
Congress has made for crack cocaine even though I would quickly do something
different if it were within my proper role to choose.” Id. at 1060. His second reason
was based on the fear that without the crack cocaine Guidelines there was no rational
basis by which a sentencing judge could choose which alternative sentencing structure
to apply. Id. at 1060-61 (noting that at various times several different reforms have
been proposed, including setting the Guidelines based on a ratio at 1-to-1, 10-to-1, and
20-to-1). On that point, he wrote that if sentencing judges were free to vary from the

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crack cocaine Guidelines simply on the basis of the disparity, “a bunch of different
standards for crack sentencing” would emerge despite his opinion that “judges lack
the institutional capacity (and frankly, the personal competence) to set and then
enforce one new, well-chosen, theoretically coherent, national standard.” Id. at 1061.
Consequently, the district court found that its disagreement with the extent of the
crack/powder disparity was not an appropriate basis for a variance.

        In our original review of Tabor’s appeal, we did not address the correctness of
this conclusion. Rather, we concluded that a sentence within the crack cocaine
Guidelines was not inherently unreasonable. Tabor, 439 F.3d at 831 (although we did
say that the district court did not neglect to consider a relevant factor). A few months
later, however, our court did consider whether the disparity could form the basis of a
variance from the Guidelines. United States v. Spears 469 F.3d 1166 (8th Cir. 2006)
(en banc), vacated and remanded by 128 S. Ct. 858 (2007), reinstated and aff’d in part
and rev’d in part on remand by, --- F.3d ----, Nos. 05-4468 & 06-1354, 2008 WL
2485329 (8th Cir. June 23, 2008) (en banc). We answered that question in the
negative, stating, “Congress has elected not to revise the 100:1 quantity disparity
between powder cocaine and crack cocaine” and we “must defer to Congress” on the
issue. Id. at 1178. In Spears, we identified the same concerns that troubled the
sentencing judge in this case: judicial contravention of Congressional intent, id. at
1177-78, and the likelihood that different sentencing judges would adopt different
crack/powder cocaine ratios, id. at 1176.

       In the intervening year, the Supreme Court has rejected the view that these
concerns prohibit a district court from granting a downward variance on the basis of
the crack/powder disparity. First, Kimbrough rejected the argument that Congress
intended the 100-to-1 crack/powder ratio to form the basis for the crack cocaine
Guidelines. 128 S. Ct. at 571 (rejecting the argument that Congress’s use of the same
ratio as the basis for its mandatory minimums evidenced such an intent); id. at 572-73
(rejecting the argument that Congress approved of the 100-to-1 ratio when it rejected

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prior efforts by the Sentencing Commission to revise the ratio). And second, it
dismissed the concern that different sentencing judges would adopt disparate
approaches to the crack cocaine Guidelines, stating that “possible variations among
district courts are constrained by the mandatory minimums” and that “ongoing
revision of the Guidelines in response to sentencing practices will help to avoid
excessive sentencing disparities.” Id. at 574 (internal quotation marks omitted).
Further, it noted that appellate review of whether a sentence is reasonable will help
achieve a broad uniformity, even if it cannot replicate the more exact uniformity
sought by the Guidelines. Id. at 573. The Supreme Court in Kimbrough squarely
considered the two concerns the sentencing judge found crucial in this case, and it
held that they did not preclude a variance based on disagreement with the 100-to-1
ratio.

                                            II.

       With this history in mind, we now turn to considering Tabor’s appeal within the
framework of appellate sentencing review. We review a defendant’s sentence for
“both the procedural soundness of the district court's decision and the substantive
reasonableness of the sentence imposed.” United States v. Merrival, 521 F.3d 889,
890 (8th Cir. 2008). Procedural sentencing acts are those acts the district court must
take to aid it in crafting an appropriate sentence, Gall v. United States, 128 S. Ct. 586,
597 (2007) (such as giving the parties an opportunity to argue for the appropriate
sentence, properly calculating the Guidelines, treating the Guidelines as advisory,
considering each of the § 3553(a) factors, and selecting facts that are not clearly
erroneous), or those acts the district court takes to aid appellate review of its sentence,
id. (a district court must “adequately explain the chosen sentence”). Substantive
sentencing acts include, most importantly, how a district court balances the § 3553(a)
sentencing factors to derive its sentence. Id. (instructing appellate courts to give “due
deference to the district court's decision that the § 3553(a) factors, on a whole, justify”
a sentence). We review the district court’s balancing of these factors when we

                                           -5-
consider whether the sentence imposed is reasonable. See United States v. Kowal,
527 F.3d 741, 749 (8th Cir. 2008) (explaining that a district court abuses its discretion
if it “. . .considers only the appropriate factors but commits a clear error of judgment
in weighing those factors”). But we do not consider whether a sentence is reasonable
until we “first ensure that the district court committed no significant procedural error.”
Gall, 128 S. Ct. at 597.

       Such significant procedural error occurs if the district court fails to understand
the scope of its authority and discretion at sentencing. See United States v. Roberson,
517 F.3d 990, 995 (8th Cir. 2008) (stating that remand is appropriate when “a district
court does not consider an argument because it is unaware of its power to do so”);
United States v. Marston, 517 F.3d 996, 1004 (8th Cir. 2008) (holding that district
court committed significant procedural error by applying a presumption of
reasonableness to a Guidelines sentence); United States v. Thorpe, 447 F.3d 565, 569
(8th Cir. 2006) (remanding case where district court failed to recognize its authority
to find sentencing facts based on a preponderance of the evidence); see also United
States v. Moore, 518 F.3d 577, 579-80 (8th Cir. 2008) (finding no procedural error
where the district court was presumed to be aware of its power to vary downward on
the basis of the crack/powder disparity), petition for cert. filed, No. 07-10689 (Apr.
25, 2008). A significant procedural error requires that we reverse a sentence unless
the error is harmless or the defendant forfeited the error by failing to object in the
court below. Marston, 517 F.3d at 1004 (8th Cir. 2008) (holding that a forfeited error
was not reversible where defendant failed to show prejudice). An error is harmless
only if we are convinced that the error did not affect the district court’s sentencing
conclusion. Thorpe, 447 F.3d at 569 (stating that the beneficiary of a preserved error
bears the burden of proving it was harmless).

      We previously vacated the sentence in another case involving the same
sentencing judge based on his statement that he did not have the power to vary
downward on the basis of his disagreement with the 100-to-1 crack/powder cocaine

                                           -6-
ratio. See United States v. Lee, 521 F.3d 911, 914 (8th Cir. 2008). We have also
reversed and remanded cases for re-sentencing where the record was merely unclear
whether the district court understood that it had the power to vary. See United States
v. Thomas, 524 F.3d 855, 860 (8th Cir. 2008) (remanding where the district court was
silent about its power to vary downward); Roberson, 517 F.3d at 995 (remanding
where the district court was silent on its authority to vary downward, but existing
Circuit precedent established that such a variance was impermissible); cf. Moore, 518
F.3d at 580 (affirming where the district court was silent on its authority to vary
downward where sentencing predated Circuit precedent establishing that such a
variance was impermissible). Consistent with these opinions, we conclude that the
district court committed a significant procedural error by finding that it was without
the authority to vary downward on the basis of its disagreement with the crack/powder
cocaine disparity. See United States v. Tabor, 365 F. Supp. 2d 1052, 1060-61 (D.
Neb. 2005). Tabor preserved this claim of error by objecting in the court below, and
the error was not harmless because we are unconvinced that the district court would
have imposed the same sentence if it had understood a variance was permissible.
Therefore, remand is appropriate so that the district court may re-sentence the
defendant in light of Kimbrough and with the knowledge that a variance is not
precluded on the grounds that it disagrees with the crack/powder cocaine ratio.

                                         III.

       Since we are remanding this case due to a procedural error, we need not
consider the effect of the now-enacted retroactive Guideline amendments on Tabor’s
advisory sentencing range. See USSG app. C, amend. 713 (Supp. 2008); Sentencing
Guidelines for United States Courts, 73 Fed. Reg. 217 (Jan. 2, 2008). Moreover, the
propriety of such a remand is the subject of some disagreement in our circuit.
Compare United States v. Coleman, 525 F.3d 665, 667 (8th Cir. 2008 (“As Coleman
did not raise this issue [regarding the recent retroactive amendments] in the district
court, it is more appropriately addressed in a motion to that court under 18 U.S.C. §

                                         -7-
3582(c)(2).”); United States v. King, 518 F.3d 571, 576 (8th Cir. 2008) (“King’s
request for reduction of sentence in light of Amendment 706 must be decided by the
district court in the first instance.”) with United States v. Whiting, 522 F.3d 845, 852-
53 (8th Cir. 2008) (remanding case “to the district court for consideration of whether
Whiting's sentence should be modified in light of these retroactive amendments to the
guidelines affecting crack.”). Rather than weigh in on this debate, it is sufficient for
us to say that in the course of correcting the procedural error, the district court may
also properly consider the impact of the amended Guidelines. See USSG §
1B1.10(a)(1) (Supp. 2008).

        Of course, we are not suggesting that the district court must impose a sentence
lower than 151 months or even that the district court must impose a lower sentence
at all. The core legal rule in Part IV of our prior panel opinion remains valid even in
light of Kimbrough: A sentence is not unreasonable simply because the district court
refuses to vary from the advisory sentencing range on the basis of the crack/powder
disparity. United States v. Moore, 518 F.3d 577, 580 (8th Cir. 2008); United States
v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). In this regard, the decision to vary
or not to vary belongs to the district court in its exercise of the § 3553(a) balancing
test. Should an appeal follow, we would review the district court’s balancing of the
§ 3553(a) factors for substantive reasonableness.

                                          IV.

       For the reasons stated above, Tabor's conviction is AFFIRMED pursuant to
Parts I, II and III of our prior panel opinion, United States v. Tabor, 439 F.3d 826
(8th Cir. 2006), and his sentence is VACATED and REMANDED to the district court
for re-sentencing consistent with this opinion. Consequently, we deny as moot
Tabor’s motion for appointment of counsel.
                         ______________________________



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