In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3776

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES J. BROWN, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09-CR-58—Lynn Adelman, Judge.

ARGUED APRIL 22, 2010—DECIDED AUGUST 16, 2010

Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

WILLIAMS, Circuit Judge. James J. Brown, Sr. pled

guilty to possessing crack cocaine with the intent to

distribute it. He qualified as a career offender under

the United States Sentencing Guidelines, and he pointed

out in his sentencing memorandum that the guideline

range for powder cocaine offenders was lower than that

for crack cocaine offenders like him. At the time, our

precedent dictated that a sentencing judge was bound
2 No. 09-3776

by the crack/powder disparity reflected in the career

offender guideline, U.S.S.G. § 4B1.1. We overruled that

precedent in United States v. Corner, 598 F.3d 411 (7th

Cir. 2010) (en banc), which we decided after Brown

was sentenced. Although Brown received a sentence

that was one month less than the low end of the advisory guideline range for powder cocaine career offenders, we do not know how the district court would

have sentenced Brown had it known it could disagree

with the crack/powder disparity inherent in the career

offender guideline. Therefore, in light of Corner, we

vacate Brown’s sentence and remand for resentencing.

I. BACKGROUND

While conducting surveillance near an apartment

complex in Fitchburg, Wisconsin, an officer saw a drug

deal and radioed the license plate numbers and descriptions of the vehicles involved. Officers stopped the

vehicle James J. Brown, Sr. was driving. Brown got out

and ran, but an officer caught him a short time later and

found a clear plastic bag containing 18.18 grams of crack

cocaine nearby. Brown admitted in a statement that he

ran from the officer because he had crack cocaine and

that he had thrown the plastic bag containing crack

cocaine while the police chased him.

Brown pled guilty to knowingly and intentionally

possessing, with the intent to distribute, more than five

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).

The Presentence Investigation Report (“PSR”) affixed a

base offense level of 24 in light of the 18.18 grams of crack
No. 09-3776 3

cocaine found at the scene. See U.S.S.G. § 2D1.1. Brown’s

prior convictions made him a career offender under

the guidelines, and that status raised his offense level to

37. See U.S.S.G. § 4B1.1. A three-level reduction for acceptance of responsibility resulted in a final offense level

of 34, and his criminal history as a career offender was

VI. The resulting advisory guideline range was 262 to

327 months. Brown also faced a statutory mandatory

minimum of 120 months’ imprisonment. See 21 U.S.C.

§ 841(b).

Through counsel, Brown filed a sentencing memorandum before his sentencing hearing. He pointed out in

the memorandum that although his guideline range

was 262-327 months, his range would have been 151-188

months’ imprisonment had his offense involved powder

cocaine. On November 4, 2009, the district court imposed a sentence of 150 months’ imprisonment, 8 years

of supervised release, and a $100 assessment. Brown

appeals his sentence.

II. ANALYSIS

At the time Brown was sentenced, the district court was

bound by our decision in United States v. Welton, 583

F.3d 494 (7th Cir. 2009). We held in Welton that a sentencing court could not disagree with the crack/powder

disparity reflected in the career offender guideline,

U.S.S.G. § 4B1.1, because a statute, 28 U.S.C. § 994(h),

required the Sentencing Commission to set guideline

ranges for career offenders at or near the statutory maximum sentences, and the maximum sentences in 21 U.S.C.
4 No. 09-3776

§ 841 contained a crack/powder disparity. We later overruled Welton in United States v. Corner, 598 F.3d 411

(7th Cir. 2010) (en banc), holding that a sentencing

judge could consider policy disagreements with the

crack/powder disparity when it sentenced a person

with career offender status.

The question in this appeal is whether our decision

in Corner requires a remand in this case. As an initial

matter, Brown preserved his argument that the

crack/powder disparity reflected in U.S.S.G. § 4B1.1 affected his sentence by asserting in his sentencing memorandum that had his case involved powder cocaine

instead of crack cocaine, his guideline range would

have been lower. See United States v. Johnson, 584 F.3d 731,

740 (7th Cir. 2009) (stating that defendant preserved

challenge to sentencing disparity by raising challenge

in his objections to the presentencing report).

The government maintains that despite our decision

in Corner, Brown’s sentence should be affirmed. It

argues that Brown’s 151-month sentence was reasonable and emphasizes that his sentence was one

month below the low end of the advisory guideline

range for powder cocaine career offenders. The government also points to the district court’s thorough discussion at the sentencing hearing and maintains that

Brown failed to show that the court’s inability to

consider the crack/powder disparity in U.S.S.G. § 4B1.1

affected its choice of sentence.

The problem with this argument, however, is that we

have no way of knowing how the district court might
No. 09-3776 5

have sentenced Brown had it known it could disagree

with the crack/powder disparity inherent in the career

offender guideline. The course we have taken in similar

situations guides us here. After the Supreme Court held

in United States v. Booker, 543 U.S. 220 (2005), that

the sentencing guidelines were advisory and not mandatory, we remanded sentencing appeals to the district

court unless we were confident that the sentencing

judge would not have given the defendant a lighter

sentence had it known the guidelines were only advisory. See United States v. Paladino, 401 F.3d 471, 481-84

(7th Cir. 2005). We adopted the same approach after

the Supreme Court ruled in Kimbrough v. United States,

552 U.S. 85 (2007), that a sentencing judge could

disagree with the crack/powder disparity in the guidelines for policy reasons, overruling our precedent to the

contrary. See United States v. Taylor, 520 F.3d 746, 747-48

(7th Cir. 2008); United States v. White, 519 F.3d 342, 349

(7th Cir. 2008). In both situations, we concluded that

when we had no way of knowing how the sentencing

judge might have sentenced the defendant in light of

the Supreme Court decisions, a remand was necessary so that the sentencing judge could make that determination.

That is the situation here too. The government is correct that the district court gave a thorough explanation

of the reasons for choosing the sentence it did. The

district court discussed Brown’s record and the convictions that led to his career offender status. It acknowledged that Brown’s current offense was serious, but it

also noted that the longest sentence he had received to
6 No. 09-3776

date was only 24 months’ imprisonment. The court

also discussed Brown’s difficult childhood, where a

neglectful, abusive mother often left Brown and his

siblings to fend for themselves. The district court also

recognized that Brown had five children and that his

fiancée described him as a good person and caring

father who became involved in drugs to make money.

The district court also noted that Brown was doing well

in treatment and had made an effort to be involved

with his other children. After taking these and other

considerations into account, the district court imposed

a sentence of 150 months.

But the 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.
No. 09-3776 7

III. CONCLUSION

We VACATE Brown’s sentence and REMAND his case to

the district court.

8-16-10