                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                    FILED
                                                       U.S. COURT OF APPEALS
                       ________________________          ELEVENTH CIRCUIT
                                                             MAR 23, 2009
                             No. 07-15518                 THOMAS K. KAHN
                                                               CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 07-20520-CR-DMM


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CRAIG MILLER,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 23, 2009)

Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:

       Craig Miller (“Appellant”) appeals his 151-months’ sentence for possession

of and conspiracy to possess crack cocaine.* Appellant argues that the district

court failed to address Appellant’s contention that the crack/powder disparity in the

sentencing guidelines should be considered advisory rather than mandatory. The

government (“Appellee”) agrees that, because the sentencing hearing was held

before the Supreme Court’s decision in Kimbrough v. United States, 128 S.Ct. 558

(2007), Appellant’s case warrants limited remand. We vacate the sentence and

remand to the district court for the limited purpose of reconsideration in the light of

Kimbrough.

       In United States v. Stratton, 519 F.3d 1305 (11th Cir. 2008), we recognized

that Kimbrough overruled United States v. Williams, 456 F.3d 1353 (11th Cir.

2006), our prior precedent on the crack/powder sentencing disparity. In Stratton,

we said that under Kimbrough, the district courts have the authority to consider the

crack/powder sentencing disparity when reaching an appropriate sentence. Id. at

1306-07.



       *
         Counsel for Appellant filed a motion to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), on the grounds that he had conducted a thorough review and could find nothing
on which to base an appeal. This Court denied his motion and directed him to appeal on the
issue of whether the district court properly treated the crack/powder disparity as mandatory when
sentencing.

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       In Stratton, we remanded and noted that “[w]e do not suggest on remand

that the district court must impose any particular sentence or that the district court

is not free to impose the same sentence . . . . [T]his is a limited remand to permit

the district court to reconsider . . . in light of . . . Kimbrough.” Id.

       In United States v. McGowan, 276 Fed.Appx. 946 (11th Cir. May 6, 2008)

(per curiam), we remanded for reconsideration in the light of Kimbrough in a case

similar to this case. McGowan argued at sentencing that the crack/powder

disparity led to a sentence significantly greater than necessary. The sentencing

judge did not address McGowan’s crack/powder sentencing disparity argument.

Id. Under those circumstances, we concluded that a limited remand in the light of

Kimbrough was appropriate. Id. at 3. In support of that decision, we noted that we

were “left in doubt as to whether the district court understood that it would not

have abused its discretion if it had reduced McGowan’s sentence based on a policy

disagreement with the crack/powder disparity.” Id. Faced with that doubt, we

decided to “remand to the district court to give it an opportunity to indicate

whether it would have imposed a different sentence if it had understood that it had

discretion to disagree with the Guidelines policy expressed in the crack/powder

disparity. If the district court concludes that consideration of the crack/powder

disparity would make no difference in McGowan’s sentence, it need not conduct a



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resentencing hearing and may simply reenter the sentence previously imposed.”

Id. at 4.

       In this case, the record is unclear on whether the district court considered the

crack/powder sentencing ratio to be an advisory or mandatory aspect of

Appellant’s sentence. Because Kimbrough had yet to be decided, reason exists to

believe the district court may not have understood the ratio to be advisory. The

government agrees with Appellant that a limited remand, as we ordered in

McGowan, is necessary to allow the district court to consider its decision in the

light of the Supreme Court’s decision in Kimbrough. Accordingly, we remand this

case to the district court for limited reconsideration as we did in McGowan.

       VACATED and REMANDED.




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