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United States v. Gibbs

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ARGUED MARCH 30, 2009

Before KANNE, WOOD and WILLIAMS, Circuit Judges.

On February 22, 2007, Michael Gibbs made the mistake of selling crack cocaine to a witness cooperating with the federal government. A grand jury indicted Gibbs for distributing fifty or more grams of crack in violation of 21 U.S.C. § 841(a)(1), and Gibbs pleaded guilty. The district court sentenced Gibbs to ten years’ imprisonment and ten years of supervised release. The court also ordered Gibbs, as a condition of his supervised release, to repay the $1,400 used by the Government to buy the drugs. On appeal, Gibbs challenges only the supervised release term and the repayment condition. He argues that the district court erred by failing to calculate the advisory Guideline range and by imposing a repayment obligation without considering Gibbs’s ability to pay. As we explain below, the latter argument is premature, but the former argument has merit. We therefore vacate the supervised release term of Gibbs’s sentence and remand the case to the district court.

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