Cite as: 555 U. S. ____ (2008) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

JAMES ERIC MOORE v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 07–10689. Decided October 14, 2008 

PER CURIAM. 

James Eric Moore was convicted of one count of possessing cocaine base with intent to distribute, a violation of 21

U. S. C. §§841(a)(1) and (b)(1). Given the quantity of crack 

cocaine, the presentence report calculated that Moore’s 

sentencing range under the United States Sentencing 

Guidelines was 151 to 188 months. At sentencing, Moore

asked the District Court to impose a below-Guidelines 

sentence in light of our decision in United States v. Booker, 

543 U. S. 220 (2005), and the Guidelines’ disparate treatment of similar amounts of crack and powder cocaine. 

The District Court refused, saying: 

“With regard to the crack and powder cocaine difference, that is the law. I’m applying the law as it currently stands. If that is going to be changed, that is a

congressional matter. Congress is the one who looks 

at the guidelines and decides whether or not they 

should be put in—in force. . . . It isn’t the judges. It’s 

the lawmakers, and I have taken an oath to apply the

law, and that’s what I will do in this sentencing.” 

App. C to Pet. for Cert. 55–56. 

The District Court sentenced Moore to 188 months of 

imprisonment and six years of supervised release.

Moore appealed, and the United States Court of Appeals 

for the Eighth Circuit affirmed his conviction and sentence. United States v. Moore, 470 F. 3d 767 (2006). In 

response to his claim that the District Court should have 

considered the crack/powder disparity, the Court of Ap-
2 MOORE v. UNITED STATES 

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peals held that “the district court was correct in concluding that ‘neither Booker nor [18 U. S. C.] §3553(a) authorizes district courts to reject’ the powder cocaine to crack

cocaine quantity ratio mandated by Congress and reflected 

in the Guidelines.” Id., at 770 (quoting United States v. 

Spears, 469 F. 3d 1166, 1176 (CA8 2006) (en banc)).

Moore filed a petition for certiorari with this Court. Pet. 

for Cert. in Moore v. United States, No. 06–9749. 

While Moore’s certiorari petition was pending, this

Court issued its opinion in Kimbrough v. United States, 

552 U. S. ___ (2007), concluding that a judge “may consider the disparity between the Guidelines’ treatment of

crack and powder cocaine offenses” when applying 18 

U. S. C. §3553(a), “even in a mine-run case.” Id., at ___, 

___ (slip op., at 2, 21). We granted Moore’s petition, vacated the judgment, and remanded the case to the Eighth

Circuit for further consideration in light of Kimbrough. 

Moore v. United States, 552 U. S. ___ (2008).

On remand, without new briefing, the Eighth Circuit

affirmed again. 518 F. 3d 577 (2008). This time, the 

Court of Appeals concluded that “[a]s there was then no 

circuit authority to the contrary, we presume the district

court was aware that Booker granted it discretion to vary

downward based upon the impact of the crack cocaine

guidelines on this defendant, but elected not to exercise

that discretion.” Id., at 580. 

Proceeding pro se, Moore again petitioned for certiorari,

arguing that the Eighth Circuit’s new characterization of 

the transcript is wrong, and that it is “clear that the district court thought judges had no discre[t]ion to reject” the 

Guidelines ratio. Pet. for Cert. 7. The United States 

agrees that the Eighth Circuit erred, see Brief for United

States 9, and so do we. 

When the District Court said that “[i]t isn’t the judges”

but Congress that “looks at the [G]uidelines and decides 

whether or not they should be put . . . in force,” the court 
Cite as: 555 U. S. ____ (2008) 3 

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showed that it did not think it had the discretion later 

upheld by Kimbrough. App. C to Pet. for Cert. 56. The 

Eighth Circuit’s first decision recognized this, describing

the District Court as “concluding” (correctly under circuit

precedent) that it was not “authorize[d] . . . to reject” the 

crack/powder disparity. Moore, 470 F. 3d, at 770 (internal 

quotation marks omitted). In light of the District Court’s 

comments at sentencing, the Court of Appeals should have

remanded the case to the District Court for resentencing

under Kimbrough. We express no views on how the District Court should exercise its discretion at resentencing. 

The petition for certiorari and the motion for leave to

proceed in forma pauperis are granted. The judgment of

the Court of Appeals is reversed, and the case is remanded

for further proceedings consistent with this opinion. 

It is so ordered.