10-1272 U.S. v. Newbern

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Sentencing
Crack cocaine; limited remand

Where the disparity between crack and powder cocaine sentences would not have affected a career-offender’s guideline range, he is not entitled to a limited remand.
“Kimbrough opened the door for policy disagreements with the Guidelines and Welton closed it only to preclude arguments based on crack/powder disparities when those challenges stemmed from the statutory maximums embedded in § 4B1.1. Other policy concerns that could be raised to challenge § 4B1.1 (such as an argument that its definition of a career offender is overbroad or that recidivists should not be punished more harshly) would not pose a challenge to the embedded ratio disparity or the statutory maximums and, thus, would have been available to Newbern at sentencing. By overruling Welton’s narrow holding, Corner now allows sentencing judges to vary from the career-offender Guidelines based on a policy disagreement with the crack/powder disparity when it affects a sentence. But here, even if the district judge in this case would have disagreed with that disparity when it affected a career-offender Guidelines range, Newbern cannot establish plain error because, as Newbern does not dispute, the disparity had no effect on his Guidelines range. Accordingly, a limited remand would not help Newbern.”

Affirmed.

10-1272 U.S. v. Newbern

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Per Curiam.

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