In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-3681

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICARDO ROMERO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04 CR 164—Barbara B. Crabb, Chief Judge.

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On Remand from the Supreme Court of the United States

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SUBMITTED FEBRUARY 29, 2008—DECIDED JUNE 6, 2008

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Before FLAUM, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. The Supreme Court granted

Ricardo Romero’s petition for writ of certiorari, vacated

our judgment, and remanded the case to us for reconsideration in light of Kimbrough v. United States, 128 S. Ct.

558 (2007). Romero was sentenced to 151 months’ imprisonment after a jury found him guilty of one count of

conspiring to distribute cocaine, see 21 U.S.C. §§ 841(a)(1),

846, one count of possessing five grams or more of co-
2 No. 05-3681

caine base with intent to distribute, see id. § 841(a)(1), and

one count of possessing cocaine with intent to distribute,

see id. At sentencing, Romero urged the district court to

refrain from applying the 100-to-1 crack cocaine to powder

cocaine ratio found in § 2D1.1 of the Sentencing Guidelines, which subjects a crack-cocaine drug trafficker “to the

same sentence as one dealing in 100 times more powder

cocaine.” Kimbrough, 128 S. Ct. at 564. The district court

applied the ratio and sentenced Romero to 151 months’

imprisonment.

On appeal, Romero challenged the sufficiency of the

evidence at trial, the district court’s refusal to allow crossexamination of one witness regarding a prior inconsistent statement, and the district court’s application of

the 100-to-1 ratio. We affirmed. See United States v.

Romero, 469 F.3d 1139, 1153 (7th Cir. 2006). The Supreme

Court granted Romero’s petition for certiorari in light of

Kimbrough, and vacated the judgment. Because Kimbrough

affects only one of the three arguments Romero raised on

appeal, our dispositions of the other issues are reinstated,

id. at 1151-53, and our affirmance of Raul Romero’s sentence remains intact (Ricardo’s co-defendant and brother),

id. at 1148-49. See Ohse v. Hughes, 863 F.2d 22, 24 (7th

Cir. 1988) (“The Court’s decision in Ohse v. Hughes is

reinstated except for the final section of the Court’s opinion which is designated “Miscellaneous.” The section

designated “Miscellaneous” remains vacated pursuant to

the Supreme Court’s memorandum decision . . . .” (internal

citations omitted)).

When the district court sentenced Romero in September

2005, we had already held that defendants were not

“entitled to a deviation from the statutory ratio.” United

States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006) (reciting the
No. 05-3681 3

holding of United States v. Gipson, 425 F.3d 335 (7th Cir.

2005)). In Romero’s appeal, we explained that a “ ‘district

judge is required to abide by the 100:1 crack cocaine to

cocaine powder ratio when applying the Sentencing

Guidelines to a defendant’s conduct.’ ” Romero, 469 F.3d

at 1153 (quoting United States v. Hankton, 463 F.3d 626,

629 (7th Cir. 2006)). Our stance was rejected in Kimbrough,

in which the Supreme Court held that the cocaine guidelines are like all other sentencing guidelines and thus “are

advisory only.” 128 S. Ct. at 564.

Because Romero preserved his challenge to the crackcocaine ratio, we may simply vacate his sentence and

remand to the district court for resentencing. See United

States v. Padilla, No. 06-4370, slip op. at 12-16 (7th Cir.

Mar. 31, 2008); but cf. United States v. Taylor, No. 06-4123,

slip op. at 4-6 (7th Cir. Mar. 26, 2008) (outlining remand

approach applicable in plain error context). The district

court must resentence Romero in light of the non-mandatory nature of the 100-to-1 ratio. See Kimbrough, 128 S. Ct.

at 564. Even though we are vacating the sentence and

Romero will be sentenced anew, the district court must

apply the guidelines as they existed at the time of his first

sentencing, see 18 U.S.C. § 3742(g); United States v. Sriram,

482 F.3d 956, 961 (7th Cir. 2007), vacated, Sriram v. United

States, 128 S. Ct. 1134, 1134 (2008), reinstated, United States

v. Sriram, Nos. 05-2752 & 05-2802, slip op. at 2 (7th Cir.

Apr. 23, 2008). But this time around, the district court

will view those guidelines through the lens of Kimbrough.

Romero’s sentence is VACATED and the case is REMANDED

to the district court for resentencing.

USCA-02-C-0072—6-6-08