Defendant's conviction and sentence for distributing more than five grams of crack and possessing a firearm in furtherance of a drug-trafficking crime is vacated and remanded for new plea acceptance and sentencing hearings where: 1) the district court committed plain error in carrying out its Rule 11 duties, which clearly affected defendant's substantial rights and as such, defendant is entitled to another opportunity to plead to the 18 U.S.C. section 924(c) charge; and 2) defendant's sentence for distribution of crack cocaine is vacated and remanded as there is reason to believe the district court judge did not recognize his authority to reject and vary from the crack cocaine Guidelines based solely on a policy disagreement with those Guidelines.
Argued: March 11, 2009
Decided and Filed: October 5, 2009
Opinion by Circuit Judge Daughtrey
For Appellant: Michael M. Losavio, Louisville, Kentucky
For Appellee: Salvador A. Dominguez, Assistant United States Attorney, Columbus, Ohio