United States of America v. Olu Adefumi

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008 *
Decided May 21, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 06‐3954
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
OLU ADEFUMI,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 04‐CR‐717‐1
Amy J. St. Eve,
Judge.
O R D E R
Olu Adefumi pleaded guilty, without a plea agreement, to one count of conspiring to
possess and distribute crack cocaine and two counts of distributing crack cocaine. See 21
U.S.C. §§ 846, 841(a)(1). He now challenges his sentence of 292 months’ imprisonment,
arguing that the difference in guideline offense levels for like quantities of crack and
powder cocaine resulted in an unreasonable sentence. We vacate Adefumi’s sentence and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06‐3954 Page 2
remand for resentencing in light of Kimbrough v. United States, 128 S. Ct. 558 (2007).
Adefumi, a member of the Latin Kings street gang, distributed crack cocaine in
Chicago beginning in the summer of 2001 and continuing until at least November 2003. In
July 2003 Adefumi twice sold crack to a witness cooperating with the FBI; he sold 6.3 grams
the first time and 28 grams the second time. Based on the controlled buys together with
information provided by confidential sources and cooperating witnesses, the government
estimated that Adefumi had distributed over 1.5 kilograms of crack cocaine.
Adefumi entered blind guilty pleas, and a probation officer calculated a total offense
level of 38 based on a drug quantity of 1.5 kilograms of crack and a criminal history
category of III, see U.S.S.G. § 2D1.1(a)(3), (c)(1) (2005), which yielded a guidelines range of
292 to 365 months. Adefumi objected to several of the probation officer’s conclusions, but
the only objection relevant on appeal related to the drug type and drug quantity for which
he was responsible. Specifically, Adefumi argued that he distributed a form of cocaine that
did not constitute “cocaine base” and that he was not responsible for distributing more than
100 grams of it. He further asked the court to reduce his sentence based on the unfairness of
the 100:1 ratio between crack and powder cocaine. After an evidentiary hearing, the district
court found that the government had proven by a preponderance of the evidence that
Adefumi had dealt over 1.5 kilograms of crack. The court also denied Adefumi’s request to
reduce his sentence based on the crack/powder cocaine disparity, stating that circuit
precedent prohibited the district court from reducing his sentence solely on that basis. The
court sentenced Adefumi to 292 months’ imprisonment, the lowest possible guideline
sentence.
Adefumi argues that he deserves a remand because the district court believed it was
not free to impose a reduced sentence based on a policy disagreement with the
crack‐to‐powder ratio. In Kimbrough, the Supreme Court held that sentencing courts are free
to take the 100:1 disparity into account, see id., 128 S. Ct. at 575, and nothing in the record in
this case indicates whether the district court would have imposed the same sentence had it
known it was free to reduce the sentence on the basis of that disparity, see United States v.
White, 519 F.3d 342, 349 (7th Cir. 2008). We therefore VACATE Adefumi’s sentence and
REMAND for resentencing in light of Kimbrough. See United States v. Bush, No. 07‐1307, 2008
WL 1745342, at *3 (7th Cir. Apr. 17, 2008).

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