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United States v. Corner

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SUBMITTED EN BANC MARCH 3, 2010

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, RIPPLE, KANNE, ROVNER, WOOD, EVANS, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

Vincent Corner pleaded guilty to possessing more than five grams of cocaine base, with intent to distribute it. He was sentenced to 188 months’ imprisonment as a career offender under U.S.S.G. §4B1.1. A panel concluded that the career-offender classification was correct, 588 F.3d 1130 (7th Cir. 2009), and affirmed the sentence in light of United States v. Welton, 583 F.3d 494 (7th Cir. 2009), which held that district courts are not entitled to disagree with §4B1.1. The effect of Welton is that, although judges may disagree with the Guidelines’ equation of crack cocaine to 20 or more times the quantity of powder cocaine, see Kimbrough v. United States, 552 U.S. 85 (2007), they are bound by the crack/powder ratio when the defendant also is a career criminal-because 28 U.S.C. §994(h) requires the Sentencing Commission to ensure that the Guidelines for career offenders are at or near the statutory maximum sentences, and the conversion ratio affects the statutory maximum (and minimum) sentences under 21 U.S.C. §841.

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