United States of America v. Theodore M. Cavett

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 29, 2008
Decided December 23, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 06‐4102
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THEODORE M. CAVETT,
Defendant‐Appellant.
Appeal from the
United States District Court for the
Western District of Wisconsin.
No. 06 CR 108
Barbara B. Crabb,
Chief Judge.
O R D E R
This case returns to us on remand from the Supreme Court for further consideration in
light of Kimbrough v. United States, 128 S. Ct. 558 (2007). Cavett v. United States, 128 S. Ct. 878
(2008). The parties have filed statements of position under Circuit Rule 54. Defendant
Theodore Cavett has asked for a remand for resentencing. The government argues that
Cavett waived the Kimbrough issue by not adequately developing an argument about the
sentencing guidelines’ 100:1 crack/powder disparity before the district court or on appeal.
As such, the government maintains that no remand is necessary and asks that we affirm
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06‐4102 Page 2
Cavett’s sentence.
Cavett mentioned the 100:1 crack/powder ratio twice in his appellate brief: once in his
statement of the case and once in his challenge to the reasonableness of the district court’s
exercise of Booker discretion. Beyond referring generally to the unfairness of the disparity,
however, he did not develop a Kimbrough‐type argument on appeal. In the district court, he
initially objected to the amount of crack cocaine attributed to him by the Presentence Report
(“PSR”), but later reached a compromise with the government on that issue. When asked at
sentencing whether he had any other objections to the PSR, his counsel answered: “Just the
standard objections to the guidelines as a whole.”
Cavett’s “omnibus” sort of objection in the district court probably limits our review to
the plain‐error standard, although we have been very forgiving in our consideration of
Kimbrough forfeitures; Cavett’s appellate reference to the 100:1 crack/powder disparity
might be enough to justify at least a limited remand to determine whether the district court
would be inclined to resentence him in light of Kimbrough. See United States v. Bruce,
No. 07‐3675, 2008 WL 5246042, at *5‐7 (7th Cir. Dec. 18, 2008) (discussing whether the
defendant adequately raised the Kimbrough issue in the district court and on appeal and
describing our circuit’s treatment of preserved, forfeited, and waived Kimbrough
arguments); United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008) (defendant’s “oblique”
reference to the crack/powder issue in the district court sufficient for full remand for
resentencing in light of Kimbrough); United States v. Taylor, 520 F.3d 746, 747 (7th Cir. 2008)
(establishing limited remand procedure for plain‐error Kimbrough cases); United States v.
Thomas, 520 F.3d 729, 737 (7th Cir. 2008) (defendant’s failure to advance an argument about
the 100:1 crack/powder ratio in the district court or on appeal is a waiver of Kimbrough
issue).
But there is a separate reason Cavett is not entitled to either a full remand for
resentencing or a limited remand under Taylor. Cavett’s base offense level of 37 was based
on his status as a career offender, see U.S.S.G. § 4B1.1, not the quantity of crack cocaine
attributed to him. We have held that “a sentence entered under the career offender
guideline, § 4B1.1, raises no Kimbrough problem because to the extent it treats crack cocaine
differently from powder cocaine, the disparity arises from a statute, not from the advisory
guidelines.” United States v. Harris, 536 F.3d 798, 812‐13 (7th Cir. 2008); see also United States
v. Liddell, 543 F.3d 877, 883‐85 (7th Cir. 2008). Accordingly, Cavett’s sentence is AFFIRMED.

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