USA v. Collins Brumfield

Filing 30

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

Submitted May 20, 2009 Decided May 27, 2009
Before RICHARD A. POSNER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 063890 UNITED STATES OF AMERICA, PlaintiffAppellee, v. No. 06CR100S01 COLLINS BRUMFIELD, DefendantAppellee. John C. Shabaz, Judge. O R D E R Collins Brumfield pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1), and was sentenced to the top of the guidelines range, 235 months' imprisonment. Because his appeal was pending when the Supreme Court decided Kimbrough v. United States, 128 S. Ct. 558 (2007), we remanded Brumfield's sentence to the district court for the limited purpose of permitting the sentencing judge to advise this court whether he was inclined to resentence Brumfield in light of Kimbrough. However, we instructed the sentencing judge to hold off telling the court whether he was inclined to resentence the defendant under Kimbrough until he decided whether to act favorably on a motion to reduce the defendant's sentence under the new guidelines range, U.S.S.G. § 1B1.10(b)(2)(A). Appeal from the United States District Court for the Western District of Wisconsin.

No. 063890

Page 2

Chief Judge Crabb, who is currently the only judge in the Western District of Wisconsin due to Judge Shabaz's medical leave, appropriately responded in place of Judge Shabaz. See United States v. Howe, 310 Fed. Appx. 43, 45 (7th Cir. 2009) (unpublished order). Chief Judge Crabb announced that she intends to lower Brumfield's offense level to comport with the amended crack guidelines--Brumfield's new guidelines range would be 151 to 188 months--and also that she is inclined to impose a yet lower sentence, pursuant to Kimbrough, based on the remaining disparity between the crack and powder cocaine sentencing guidelines. Brumfield requests a remand for resentencing; the government has not responded. Accordingly, IT IS ORDERED that Brumfield's sentence is VACATED, and the case is REMANDED to the district court for resentencing.