United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted August 13, 2008

Decided September 2, 2008

Before

RICHARD A. POSNER, Circuit Judge

     DIANE P. WOOD, Circuit Judge

     JOHN DANIEL TINDER, Circuit Judge

No. 07‐3018

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

TIMOTHY J. HAMPTON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 07 CR 26

John C. Shabaz,

Judge.

O R D E R

In June 2007 appellant Timothy Hampton pleaded guilty to distributing crack

cocaine in violation of 21 U.S.C. § 841(a)(1).  The district court sentenced him to 328 months’

imprisonment—a sentence that fell in the middle of the applicable guidelines range.

Hampton did not object to the application of the crack cocaine guideline or the 100:1 crack‐

powder ratio, and the district court did not address these issues at sentencing.  We ordered

a limited remand so that the district court could state whether it would have imposed a

lower sentence had it known about Kimbrough v. United States, 128 S. Ct. 528 (2007).  United

States v. Hampton, No. 07‐3018 (7th Cir. June 26, 2008); see United States v. Taylor, 520 F.3d 746

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3018 Page 2

(7th Cir. 2008).  The district court has now responded that it would not have sentenced

Hampton differently.  Because Hampton did not present any other arguments on appeal,

we affirm.   

In January 2006 Hampton sold crack to a confidential informant and, on a separate

occasion, to an undercover law enforcement officer.  Thereafter he admitted that he had sold

more than six kilograms of crack in the Madison, Wisconsin, area.  As part of his plea

agreement, he conceded that his conduct involved crack cocaine so that he would be

sentenced pursuant to § 2D1.1 of the sentencing guidelines and that § 1B1.8 would apply.

Using the November 2006 sentencing guidelines, the 6.36 kilograms of crack cocaine for

which Hampton was found responsible resulted in an offense level of 38.  See U.S.S.G.

§ 2D1.1(c)(1) (2006).  After subtracting three points for acceptance of responsibility, see id.

§ 3E1.1, Hamptonʹs offense level was 35.  With a criminal history category of VI, the

applicable guidelines range was 292 to 365 months’ imprisonment.  Although Hampton was

a career offender, the applicable offense level would have been 34, so the greater, otherwise

applicable offense level of 35 applied.  See id. § 4B1.1(b).  After considering the factors in 18

U.S.C. § 3553(a), the district court sentenced Hampton in the middle of the guidelines range

based largely on his extensive criminal history.  Hampton would not have benefitted from

the November 2007 amendments to the sentencing guidelines that reduced the 100:1 crack‐

powder ratio because even under the updated guidelines the offense level for 6.36

kilograms of crack cocaine is 38.  See U.S.S.G. § 2D1.1(c)(1) (2007).

On appeal Hampton argued only that he was entitled to a limited remand so the

district court could say whether it would have sentenced him differently had it known

about Kimbrough.  Judge Barbara Crabb responded to our order because Judge Shabaz is on

medical leave.  She fully evaluated Hampton’s sentencing, reviewing the PSR, the

sentencing hearing, and Judge Shabaz’s sentencing statement.  She concludes that the large

amount of drugs for which Hampton was held accountable was just one part of the

sentencing determination and that Hampton’s “extensive criminal history,” which began at

age 10, was an “even more important” factor in the determination.  She also notes that

Judge Shabaz considered “the need to hold [Hampton] accountable for his continuing

criminal activities, the need to protect the community from [Hampton], the deterrent effect

of a long sentence, the value of achieving parity with the sentences of similarly situated

offenders and the potential benefit to [Hampton] of participating in programs for anger

management and alcohol and drug addiction.”  Thus Judge Crabb concludes not only that

Judge Shabaz would not have imposed a lower sentence had he known about Kimbrough but

that she would not resentence Hampton either.  

Hampton filed a response to Judge Crabb’s order, arguing that under United States v.

Bonner, 440 F.3d 414 (7th Cir. 2006), he is entitled to a new sentencing hearing because Judge
No. 07‐3018 Page 3

Crabb was not the original sentencing judge and therefore cannot answer whether Judge

Shabaz would have sentenced him differently had he known he was free to consider the

100:1 crack‐powder ratio.  In Bonner we had ordered a limited remand pursuant to United

States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to allow the district court to state whether it

would have sentenced the defendants differently had it known that the sentencing

guidelines were advisory, not mandatory.  On limited remand, the district court judge

recused himself, and the judge to whom the case was reassigned issued an order explaining

that it appeared from Paladino that only the sentencing judge could make the determination

and refused to proceed.  We vacated the sentences and remanded the case for a new

sentencing hearing before the newly assigned judge, reasoning that the determination of

whether a sentencing judge would have sentenced the defendants differently is “subjective”

and that under Paladino “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.’”  Bonner, 440 F.3d at 416.  But this case is distinguishable from

Bonner because, unlike the reassigned judge in Bonner, Judge Crabb fully reviewed

Hampton’s sentencing and made clear that she sees no reason to change Hampton’s

sentence in light of Kimbrough.  It would therefore be futile to remand the case for a new

sentencing hearing.

Given the district court’s firm statement that it would not have sentenced Hampton

differently, a full remand is unnecessary, and we affirm the district court’s judgment.  See

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