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United States of America v. Tharron L. Newbern

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ARGUED AUGUST 3, 2010

Before BAUER, MANION and SYKES, Circuit Judges.

While executing a search warrant, police found 18.2 grams of marijuana and 4.1 grams of crack in plastic baggies in Tharron Newbern’s pockets. Newbern later pleaded guilty to one count of possessing crack cocaine with the intent to distribute. See 21 U.S.C. § 841(a)(1). Because he had four prior felony convictions for drug offenses, Newbern qualified for the career-offender sentencing enhancement. See U.S.S.G. § 4B1.1. The district court sentenced Newbern to 188 months’ imprisonment-at the bottom of his Guidelines range. On appeal, Newbern reads United States v. Welton, 583 F.3d 494 (7th Cir. 2009), which controlled at the time of his sentencing, as having prevented the district court from deviating from the career-offender Guidelines range based on any policy disagreement it may have had with § 4B1.1. But, Newbern explains, shortly after his sentencing, we overruled Welton in United States v. Corner, 598 F.3d 411 (7th Cir. 2010). Based on this change in circuit precedent, Newbern contends that a limited remand is necessary so that the district court can say whether it would have given him the same sentence if it had been free to reject § 4B1.1 on any policy ground. But Newbern misreads these two cases, and the narrow policy argument foreclosed by Welton would not have helped Newbern at sentencing. Thus, we affirm the district court’s judgment.

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