                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0412n.06
                              Filed: July 9, 2008

                                        Case Nos. 05-6569

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                            )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )      ON APPEAL FROM THE
                v.                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE EASTERN
 MARQUIS TOWNSEND,                                    )      DISTRICT OF TENNESSEE
                                                      )
        Defendant-Appellant.                          )
                                                      )
 _______________________________________              )
                                                      )
                                                      )

BEFORE: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Defendant Marquis Townsend pleaded guilty

to conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine,

in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The district court sentenced Townsend to 188

months’ imprisonment. Townsend timely appealed his sentence, arguing, inter alia, that his sentence

was unreasonable due to the disparity between the Guidelines’ treatment of crack cocaine and

powder cocaine. We affirmed his sentence in United States v. Smith, 252 F. App’x 20 (6th Cir.

2007). The Supreme Court vacated our judgment as to Townsend, and remanded to us for

reconsideration in light of Gall v. United States, 128 S.Ct. 586 (2007) and Kimbrough v. United

States, 128 S.Ct. 558 (2007). Townsend v. United States, 76 U.S.L.W. 3619 (2008).

       The only aspect of our previous opinion affected by Gall and Kimbrough is our analysis with
respect to the crack/powder disparity, as to which Kimbrough holds that a sentencing court does not

abuse its discretion by considering the disparity. 128 S.Ct. at 488. At least one circuit has read

Kimbrough to necessitate a limited remand where the district court, at sentencing, did not believe

it had the authority to consider the crack/powder disparity as a sentencing factor and a basis for a

sentence reduction. See, e.g., United States v. Stratton, 519 F.3d 1305, 1306 (11th Cir. Fla. 2008).

This is not such a case, however, as the district court stated at Townsend’s sentencing that it:

        [found] nothing in the case, including the disparity in sentencing between crack
        cocain and powder cocaine, which I have on one other occasion in combination with
        other factors found to be worthy of some consideration, there's nothing in this case
        that clearly establishes that a sentence other than the sentence suggested by the
        advisory guideline range would be a reasonable sentence in this case.

As the court indicated, it found the crack/powder disparity, along with other factors, to warrant

sentencing one of Townsend’s codefendants below the recommended guideline range. Thus, it is

apparent that the district court clearly recognized its authority to consider the disparity, but did not

think the disparity justified sentencing Townsend below the recommended guideline range.

Townsend’s case, therefore, does not necessitate a remand.

        For the foregoing reasons, we REINSTATE all aspects of our previous opinion, except as

to the issue of crack/powder disparity, and we AFFIRM the sentence imposed by the district court.




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