United States v. McGee

306 F. App'x 338

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 9, 2009
• Docket: No. 05-4170
• Status: Published

Opinion

PER CURIAM.

Antonio McGee appealed the sentence the district court¹ imposed after he pleaded guilty to conspiracy to possess with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846. We affirmed. United States v. McGee, 211 Fed.Appx. 538 (8th Cir.2007). The Supreme Court granted certiorari, vacated the judgment of this Court, and remanded for further consideration in light of Kimbrough v. United States, 552 U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). McGee v. United States, — U.S. —, 128 S.Ct. 1062, 169 L.Ed.2d 802 (2008) .

Because McGee clearly asked for a below-Guidelines sentence based upon the crack-powder cocaine sentencing disparity and his request was denied because the district court believed it had no authority to so do, we hereby reverse the district court and remand for resentencing in light of Kimbrough.

1 . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.