09-3776 U.S. v. Brown

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Sentencing
Crack cocaine

Defendants sentenced for crack cocaine offenses, while circuit precedent dictated that a sentencing judge was bound by the crack/powder disparity reflected in the career offender guideline, are entitled to be resentenced.

"[T]he district court imposed the 150-month term not knowing that it could disagree with the 262- 327 month guideline range for crack cocaine career offenders, and we do not know how it might have sentenced Brown had it known it could sentence him relative to a different range. The district court did not address the crack/powder disparity Brown had raised in his memorandum, which made sense in light of our precedent at the time. It also made no statement suggesting that it would have imposed the same sentence if it had the authority to disagree with the disparity reflected in § 4B1.1. The burden is on the government to show that a remand is unwarranted, see United States v. White, 582 F.3d 787, 799 (7th Cir. 2009); United States v. Olson, 450 F.3d 655, 683 (7th Cir. 2006), and we do not find that burden satisfied here. We therefore vacate Brown's sentence. Because he preserved his argument before the district court, Brown receives a full resentencing and not a limited remand. See Johnson, 584 F.3d at 740; Olson, 450 F.3d at 683."

Vacated and Remanded.

09-3776 U.S. v. Brown

Appeal from the United States District Court for the Western District of Wisconsin, Adelman, J., Williams, J.

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