United States of America v. Timothy J. Hampton

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 13, 2008
Decided September 2, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3018
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TIMOTHY J. HAMPTON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 07 CR 26
John C. Shabaz,
Judge.
O R D E R
In June 2007 appellant Timothy Hampton pleaded guilty to distributing crack
cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 328 months’
imprisonment—a sentence that fell in the middle of the applicable guidelines range.
Hampton did not object to the application of the crack cocaine guideline or the 100:1 crack‐
powder ratio, and the district court did not address these issues at sentencing. We ordered
a limited remand so that the district court could state whether it would have imposed a
lower sentence had it known about Kimbrough v. United States, 128 S. Ct. 528 (2007). United
States v. Hampton, No. 07‐3018 (7th Cir. June 26, 2008); see United States v. Taylor, 520 F.3d 746
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3018 Page 2
(7th Cir. 2008). The district court has now responded that it would not have sentenced
Hampton differently. Because Hampton did not present any other arguments on appeal,
we affirm.
In January 2006 Hampton sold crack to a confidential informant and, on a separate
occasion, to an undercover law enforcement officer. Thereafter he admitted that he had sold
more than six kilograms of crack in the Madison, Wisconsin, area. As part of his plea
agreement, he conceded that his conduct involved crack cocaine so that he would be
sentenced pursuant to § 2D1.1 of the sentencing guidelines and that § 1B1.8 would apply.
Using the November 2006 sentencing guidelines, the 6.36 kilograms of crack cocaine for
which Hampton was found responsible resulted in an offense level of 38. See U.S.S.G.
§ 2D1.1(c)(1) (2006). After subtracting three points for acceptance of responsibility, see id.
§ 3E1.1, Hamptonʹs offense level was 35. With a criminal history category of VI, the
applicable guidelines range was 292 to 365 months’ imprisonment. Although Hampton was
a career offender, the applicable offense level would have been 34, so the greater, otherwise
applicable offense level of 35 applied. See id. § 4B1.1(b). After considering the factors in 18
U.S.C. § 3553(a), the district court sentenced Hampton in the middle of the guidelines range
based largely on his extensive criminal history. Hampton would not have benefitted from
the November 2007 amendments to the sentencing guidelines that reduced the 100:1 crack‐
powder ratio because even under the updated guidelines the offense level for 6.36
kilograms of crack cocaine is 38. See U.S.S.G. § 2D1.1(c)(1) (2007).
On appeal Hampton argued only that he was entitled to a limited remand so the
district court could say whether it would have sentenced him differently had it known
about Kimbrough. Judge Barbara Crabb responded to our order because Judge Shabaz is on
medical leave. She fully evaluated Hampton’s sentencing, reviewing the PSR, the
sentencing hearing, and Judge Shabaz’s sentencing statement. She concludes that the large
amount of drugs for which Hampton was held accountable was just one part of the
sentencing determination and that Hampton’s “extensive criminal history,” which began at
age 10, was an “even more important” factor in the determination. She also notes that
Judge Shabaz considered “the need to hold [Hampton] accountable for his continuing
criminal activities, the need to protect the community from [Hampton], the deterrent effect
of a long sentence, the value of achieving parity with the sentences of similarly situated
offenders and the potential benefit to [Hampton] of participating in programs for anger
management and alcohol and drug addiction.” Thus Judge Crabb concludes not only that
Judge Shabaz would not have imposed a lower sentence had he known about Kimbrough but
that she would not resentence Hampton either.
Hampton filed a response to Judge Crabb’s order, arguing that under United States v.
Bonner, 440 F.3d 414 (7th Cir. 2006), he is entitled to a new sentencing hearing because Judge

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No. 07‐3018 Page 3
Crabb was not the original sentencing judge and therefore cannot answer whether Judge
Shabaz would have sentenced him differently had he known he was free to consider the
100:1 crack‐powder ratio. In Bonner we had ordered a limited remand pursuant to United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to allow the district court to state whether it
would have sentenced the defendants differently had it known that the sentencing
guidelines were advisory, not mandatory. On limited remand, the district court judge
recused himself, and the judge to whom the case was reassigned issued an order explaining
that it appeared from Paladino that only the sentencing judge could make the determination
and refused to proceed. We vacated the sentences and remanded the case for a new
sentencing hearing before the newly assigned judge, reasoning that the determination of
whether a sentencing judge would have sentenced the defendants differently is “subjective”
and that under Paladino “the only person who could really tell us whether he would have
imposed the same sentence based on the facts and evidence of a particular case is the
original ‘sentencing judge.’” Bonner, 440 F.3d at 416. But this case is distinguishable from
Bonner because, unlike the reassigned judge in Bonner, Judge Crabb fully reviewed
Hampton’s sentencing and made clear that she sees no reason to change Hampton’s
sentence in light of Kimbrough. It would therefore be futile to remand the case for a new
sentencing hearing.
Given the district court’s firm statement that it would not have sentenced Hampton
differently, a full remand is unnecessary, and we affirm the district court’s judgment. See
United States v. White, 519 F.3d 342, 349 (7th Cir. 2008).

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