                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2198
                                   ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
James E. Caldwell, also known as “P”, *
also known as Pencil,                 * [UNPUBLISHED]
                                      *
            Appellant.                *
                                 ___________

                             Submitted: August 14, 2008
                                Filed: August 27, 2008
                                 ___________

Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

       James Caldwell pleaded guilty to four counts of distributing “crack” cocaine,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and was sentenced to 100 months
in prison, which was the bottom of the advisory Guidelines range. On appeal we
affirmed, rejecting Caldwell’s argument that the sentence was unreasonable because
the district court erroneously concluded that it lacked discretion to vary below the
advisory Guidelines range based on the sentencing differential between crack and
powder cocaine offenses. The United States Supreme Court vacated our judgment and
remanded for further consideration in light of Kimbrough v. United States, 128 S. Ct.
558 (2007).
       We review the sentence for reasonableness, first ensuring that the district court
did not commit a significant procedural error. See United States v. Kowal, 527 F.3d
741, 747 (8th Cir. 2008). Kimbrough instructs that a district court may consider the
crack/powder cocaine sentencing disparity in determining whether a within-
Guidelines sentence is appropriate. See 128 S. Ct. at 564, 575. Consequently, it was
a significant procedural error for the district court to conclude it lacked such
discretion. See United States v. Tabor, 531 F.3d 688, 692 (8th Cir. 2008) (significant
procedural error occurs if district court fails to understand scope of its authority and
discretion at sentencing). This error was not harmless because it is not clear from the
sentencing record whether the court would have varied downward based on the
crack/powder cocaine disparity if it had known it could do so. See id. (error is
harmless only if appeals court is convinced that error did not affect district court’s
sentencing conclusion); see also United States v. Thomas, 524 F.3d 855, 860 (8th Cir.
2008) (remanding for resentencing because it was unclear from sentencing record
whether district court would have granted defendant’s request for downward variance
based on crack/powder cocaine disparity if it had known it could so).

      Accordingly, we vacate Caldwell’s sentence and remand for resentencing in
accordance with this opinion.
                      ______________________________




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