United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted February 4, 2009

Decided February 13, 2009

Before

            WILLIAM J. BAUER, Circuit Judge

            JOHN L. COFFEY, Circuit Judge

                 ILANA DIAMOND ROVNER, Circuit Judge

No. 07‐2106

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

NICOLE L. HOWE,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 06‐CR‐216‐S‐01

John C. Shabaz,

Judge.

O R D E R

Nicole Howe pleaded guilty in 2007 to possessing crack cocaine with intent to

distribute, see 21 U.S.C. § 841(a)(1), and the district court sentenced her to 120 months’

imprisonment, the bottom of the sentencing guidelines range of 120 to 150 months.  Howe

filed a timely notice of appeal, but her counsel moved to withdraw after concluding that

there was no nonfrivolous basis for an appeal.  See Anders v. California, 386 U.S. 738 (1967).

We denied the motion, however, in light of Kimbrough v. United States, 128 S. Ct. 558 (2007),

reasoning that Howe’s sentence was a product of the 100:1 crack‐to‐powder ratio and that

Howe could argue on appeal she was entitled to a limited remand to determine whether she

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐2106 Page 2

would have received a different sentence under Kimbrough. See id. at 564, 575 (permitting

consideration, at sentencing, of disparity between guidelines ranges for crack and powder

cocaine offenses); United States v. Taylor, 520 F.3d 746, 746‐49 (7th Cir. 2008).  Rather than

proceed to the merits, the parties filed a joint motion for a limited remand, which we

granted in July 2008.

Judge Shabaz, the initial sentencing judge, is on medical leave, so Judge Crabb took

up the question in the district court.  After reading the presentence report and the transcript

of the sentencing hearing, Judge Crabb determined that Judge Shabaz would not have

altered Howe’s sentence had he known about the discretion furnished by Kimbrough.  Judge

Crabb noted Judge Shabaz’s emphasis on Howe’s prior criminal history and “the fact that

she resumed dealing crack cocaine within six months of her release from state prison

following her conviction for the same course of conduct.”  Moreover, Judge Shabaz “did not

believe her criminal history score overstated the seriousness of her criminal behavior.”

Judge Crabb explained further that her colleague ultimately “balanced [Howe’s] substance

abuse problems and her supportive family against the nature of the offense and the

quantities of controlled substances involved before concluding that a sentence at the bottom

of the advisory guidelines range would be appropriate.”  Judge Crabb concluded, “taking

into account the careful consideration that Judge Shabaz gave to the case and finding no

persuasive reason to believe that the sentence he imposed is unreasonable, I am not inclined

to give defendant a lower sentence in light of Kimbrough.”  Nor would Judge Crabb, as we

understand her order, impose a different sentence for any other reason.

We invited the parties to comment on whether a full remand is appropriate in light

of the district court’s order, but neither reply is significant.  The government simply urges

us to affirm.  Howe’s submission is not responsive.

This is an unusual case.  Judge Shabaz is the only appropriate judge to answer the

question posed by our limited remand, but he is unavailable.  The parties, meanwhile, have

assented to this substitute arrangement in their most recent submissions to this court.  Yet

we have insisted in another context that “the only person who could really tell us whether

he would have imposed the same sentence based on the facts and evidence of a particular

case is the original ‘sentencing judge.’” United States v. Bonner, 440 F.3d 414, 416 (7th Cir.

2006).  Bonner is distinguishable, however.  In that case we ordered a limited remand to

determine whether the district court “would have have imposed the same sentences had it

understood . . . that the guidelines were advisory.”  Id. at 415.  The original sentencing judge

recused himself on remand, and the newly assigned judge issued an order explaining that

he could not proceed because he was not the sentencing judge and thus was unable to carry

out the purpose of the limited remand.  Id.  Our solution there was to remand (a second

time) for a new sentencing hearing before the newly assigned judge, who could then
No. 07‐2106 Page 3

proceed with a “clean slate.”  Id.  But here that would be futile; Judge Crabb—currently the

only judge in the Western District of Wisconsin—has already announced, after reviewing

the record and the sentencing transcript, that she would not sentence Howe differently.  A

full remand is therefore unnecessary.

AFFIRMED.