In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 06-4370
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                v.

FELIPE PADILLA,
                                            Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
         No. 04 CR 784—Samuel Der-Yeghiayan, Judge.
                         ____________
    ARGUED OCTOBER 29, 2007—DECIDED MARCH 31, 2008
                         ____________



  Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. Felipe Padilla pleaded guilty to one
count of knowingly distributing 121.3 grams of a substance
containing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). After finding that the substance in question
was cocaine base in the form of crack, the district court
sentenced Padilla to 327 months’ imprisonment, a sentence
above the advisory guidelines sentence of 240 months.
Padilla now appeals his sentence, arguing that (1) the
district court improperly found the narcotics to be crack;
2                                               No. 06-4370

and (2) his sentence was unreasonable. We affirm the
district court’s finding on the drug type, but vacate and
remand for resentencing in light of the recent Supreme
Court decision in Kimbrough v. United States, 552 U.S. ___,

, 

(2007).


                      I. Background
  In the fall of 2002, Bureau of Alcohol, Tobacco and
Firearms (“ATF”) Special Agent David Gomez was on
assignment monitoring weapons and drug transactions
among Chicago gangs. On September 26, 2002, acting in an
undercover capacity, he participated in a drug deal with
Padilla, a cooperating individual (“CI”), and Adalberto
Santiago in the parking lot of a K-Mart on Chicago’s west
side. Santiago and Padilla were charged with conspiracy to
possess with intent to distribute cocaine base in the form of
crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2 (Count I), and knowingly distributing approximately
121.3 grams of mixtures containing cocaine base in the
form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(Count II).
   On April 18, 2005, Padilla filed a motion asking for an
evidentiary hearing to determine the nature of the con-
trolled substance. The district court denied the motion,
finding that such a hearing was unnecessary in light of the
fact that the “[i]ndictment in this case clearly inform[ed
Padilla] that the controlled substance that [he was] charged
with involves ‘approximately 121.3 grams of mixtures
containing cocaine base in the form of “crack,” a Schedule
II Narcotic Drug Controlled Substance.’ ” The court gave
Padilla until June 1, 2005 to file an additional motion
seeking the appointment of an independent expert to test
No. 06-4370                                                3

the drugs. Padilla filed no such motion. On January 4, 2006,
the government informed Padilla that the Cook County
Sheriff’s Police Department Laboratory had inadvertently
destroyed the narcotics related to Padilla’s case.
  Padilla pleaded guilty in a blind plea to Count II of the
indictment on March 29, 2006. At the change of plea
hearing, Padilla admitted that he distributed 121.3 grams
of cocaine, but specifically did not admit that the substance
was cocaine base in the form of crack cocaine. At the
sentencing hearing on December 7, 2006, the government
introduced evidence through Agent Gomez concerning the
drug transaction on September 26, 2002. The district court,
finding that the drugs were cocaine base in the form of
crack, and that an upward departure from the sentencing
guidelines range was warranted, sentenced Padilla to 327
months’ imprisonment and ten years’ supervised release.


                      II. Discussion
  On appeal, Padilla argues that (1) the government failed
to establish by a preponderance of the evidence that the
controlled substance was crack cocaine for sentencing
purposes; and (2) based on the advisory guideline range, a
sentence of 327 months was unreasonable. We address each
issue in turn.


  A. The District Court’s Drug Type Finding
  Padilla challenges whether the government met its
burden of proof that the substance involved in the deal was
cocaine base in the form of crack for sentencing purposes.
At sentencing after a guilty plea, the government has the
burden of proving drug type by a preponderance of the
4                                                 No. 06-4370

evidence. United States v. Johnson, 

, 537 (7th Cir.
2000). We review the district court’s finding of drug type
for clear error, and will reverse only if we are left with the
definite and firm conviction that a mistake was made. See
United States v. Wilson, 

, 621 (7th Cir. 2006).
  As we have held, “[a]ll crack is cocaine base but not all
cocaine base is crack.” United States v. Edwards, 

, 571 (7th Cir. 2005). The term “cocaine base,” for
purposes of 21 U.S.C. § 841(b), borrows from the definition
contained in U.S.S.G. § 2D1.1, which defines “cocaine base”
as “crack.” U.S.S.G. § 2D1.1(c), Note D; see United States v.
Morris, 

, 644 (7th Cir. 2007) (citing 

). As we noted in Morris, “[t]his definition
distinguishes between both powder cocaine (cocaine
hydrochloride) and cocaine bases and also between crack
cocaine and other forms of cocaine 

.
Therefore, for purposes of sentencing under § 841(b), the
evidence must show that the substance at issue is crack,
and not just cocaine base. 

.
Sentencing judges have wide latitude in the types of
evidence they may consider in making factual determina-
tions affecting a sentence. See United States v. Hankton, 

, 790 (7th Cir. 2005). At Padilla’s sentencing
hearing, the government relied primarily on the testimony
of Agent Gomez, a six-year veteran of ATF with five years
specializing in narcotics trafficking, in its effort to prove
the drug type. Agent Gomez testified to the following: on
September 20, 2002, during a conversation with Padilla
regarding a proposed drug transaction, Padilla offered to
sell Agent Gomez crack cocaine. On September 26, 2002,
Agent Gomez met the CI, Padilla, and Padilla’s child in a
K-Mart parking lot with the intention of purchasing drugs
from Padilla and Santiago. While waiting for Santiago to
No. 06-4370                                              5

arrive with the drugs, Agent Gomez asked Padilla how
much longer it would be for the drugs to arrive. Padilla
responded that the drugs were “in the cooking process, it
was drying at the time. . . . That was the reason for the
wait.” Agent Gomez, who had made approximately twenty
undercover crack cocaine purchases, understood the term
“drying” to mean the final process of cooking crack
cocaine.
  Santiago eventually arrived with the drugs in a bag, and
gave them to the CI, who smelled the drugs and gave them
to Agent Gomez. Agent Gomez noted that the drugs had a
“very, very strong, pungent smell,” consistent with the
smell of crack cocaine. When the CI asked about the quality
of the drugs, Padilla responded that the drugs were “fresh,
cooked right off the lamb” and that “the stuff that he had
just handed was good and that it was cooked up. It was
cooked.”
  After Agent Gomez left the parking lot with the CI, he
asked the CI about the quality of the drugs they had just
purchased. The CI replied that “there’s four and a half
here, these things—these things cook so small, man, you
could take an ounce and they’ll shrink about that big, this
stuff was cooked in a brick, all together in one brick.”
Agent Gomez understood this statement to mean that “the
crack cocaine in this form, a hard substance, rock-like
substance will crumble into smaller rocks and the four and
a half ounces being purchased was more than likely cooked
off the—cooked into a whole kilo and taken that portion
out of it.” Ultimately, Agent Gomez testified that based on
his training and experience, his participation in the drug
deal, and the statements made by the CI and Padilla, the
substance he obtained from Padilla was cocaine base in the
form of crack cocaine.
6                                                No. 06-4370

  On cross-examination of Agent Gomez, Padilla intro-
duced a written statement prepared by the CI that ap-
peared to contradict the CI’s statements to Agent Gomez.
The CI said in the statement that upon opening the package
containing the narcotics, he observed “four and a half
ounces of cooked rock, a white substance powder.” Padilla
argued that the drugs could not be both “crack” and
“powder.” The CI did not testify at the sentencing hearing.
On redirect, the government pointed out that at another
portion of the same statement, the CI said that Santiago
“will be at this location to drop off the cocaine of rock.”
  The government introduced two laboratory reports on
the chemical analysis of the drugs. The first analysis tested
positive for the presence of cocaine, and the second
analysis reflected the presence of cocaine base. Neither lab
report tested for the presence of sodium bicarbonate, an
ingredient commonly used in preparing crack.
  The district court concluded that the drugs in question
were indeed crack: “On the issue of crack cocaine, based on
the testimony of [Agent Gomez]’s observations, what he
saw and heard, and the second lab report, I conclude that
there is sufficient reliable evidence for a reasonable jury to
conclude that the controlled substance was crack cocaine
base.”
  On appeal, Padilla argues that the analysis of the drugs
performed prior to their destruction must be disregarded
because neither tested for the presence of sodium bicarbon-
ate. While crack is usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, 

, we have never mandated that a substance must
contain sodium bicarbonate in order to be crack. United
States v. Lake, 

, 634 (7th Cir. 2007). The second
laboratory report was only one of the pieces of evidence the
district court considered in reaching his conclusion.
No. 06-4370                                                   7

  We have held that the government can prove a substance
is crack by offering testimony from people familiar with
the drug, United States v. Anderson, 

, 301 (7th
Cir. 2006), including veteran police officers and forensic
chemists, United States v. Linton, 

, 329-30 (7th
Cir. 2000), as well as an informant’s belief that he was
purchasing crack, United States v. Booker, 

, 824
(7th Cir. 2001). See also United States v. Buchanan, 

, 413 (7th Cir. 2004); United States v. Branch, 

,
933-35 (7th Cir. 1999). Though this is a close case, we find
no reversible error in the district court’s determination that
Padilla possessed crack. The combination of the observa-
tions of the veteran narcotics officer, the statements by
Padilla regarding the proposed sale of crack and the
“cooking” and “drying” of the drugs, and the second
laboratory report is minimally sufficient to satisfy the
government’s burden of proof and permit a district court
to conclude that the substance was crack. Though the CI’s
statement in his written report describing the narcotics as
“cooked rock, a white substance powder” certainly mud-
dies the water, the entirety of the evidence tips the scale in
favor of the district court’s ultimate conclusion.
   Padilla suggests that the government failed to meet its
burden because the destruction of the narcotics precluded
the introduction of the drugs at the hearing. We note that
the destruction of the drugs was indeed regrettable. To an
extent, however, Padilla’s protestations ring a bit hollow,
as he had the opportunity to file a motion for an independ-
ent expert to examine the drugs—prior to the discovery of
their destruction—and chose not do so. More to the point,
the government need not present the substance in the
courtroom during the sentencing hearing in order to meet
its burden that the substance is crack. See 

                                               No. 06-4370

634 (citing 

; 

).
  Our deferential standard of review in this matter compels
our conclusion that there was no clear error. We note,
however, that the evidence distinguishing crack cocaine
from other forms of cocaine base in this case was undeni-
ably thin. Though the government asked Agent Gomez if
he could distinguish between crack and powder cocaine, it
did not ask him to distinguish between crack and other
types of cocaine base. We reiterate that in cases such as this
the government must produce evidence to show that the
substance was specifically crack, and not just any form of
cocaine base. See 

; 

. Given the disparity between crack and other
cocaine bases, and in the wake of Kimbrough and the
amended crack Sentencing Guidelines (discussed more
fully below), it is all the more critical that the government
meet its burden of proving the drugs to be crack cocaine as
distinct from other forms of cocaine base.


    B. Reasonableness of Sentence
  Padilla next argues that his sentence was unreasonable
because (1) the court made several procedural errors in
making an upward departure from the properly calculated
guideline range of 151-188 months’ imprisonment and (2)
his sentence of 327 months’ imprisonment was greater than
necessary to satisfy the factors enumerated in 18 U.S.C.
§ 3553(a). After United States v. Booker, 

, 

, 

(2005), we generally review a
sentence for reasonableness in light of the statutory
sentencing factors in 18 U.S.C. § 3553(a). Gall v. United
States, 552 U.S. ___, 

, 597, 

No. 06-4370                                                9

(2007); United States v. Hollins, 

, 629 (7th Cir.
2007). Because we remand in light of Kimbrough, we do not
reach all of the issues raised by Padilla regarding the
reasonableness of his sentence.
  At Padilla’s sentencing hearing, the district court
adopted the findings in the presentencing investigation
report (“PSR”). The PSR calculated Padilla’s total offense
level at twenty-nine, based in part on the conclusion that
the drugs were crack cocaine. The PSR identified ten prior
felony convictions—including several involving the use of
a weapon and three occurring while incarcerated—that
added up to twenty-nine criminal history points, placing
Padilla in criminal history category VI. Based on this
offense level and criminal history category, the PSR made
an advisory guideline calculation range of 151 to 188
months’ imprisonment. However, because of Padilla’s
prior convictions and the quantity of the cocaine base, the
statutory mandatory minimum sentence was 240 months’
imprisonment. See 21 U.S.C. § 841(b)(1)(A). The Guidelines
provide that “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sen-
tence shall be the guideline sentence.” See U.S.S.G.
§ 5G1.1(b). Therefore, as calculated in the PSR, Padilla’s
advisory guidelines sentence was 240 months’ imprison-
ment.
  At sentencing, the government argued in favor of an
upward departure from advisory guidelines sentence of
240 months, asking that the court consider U.S.S.G.
§ 4A1.3(a)(4)(B), which discusses upward departure when
the criminal history category fails to adequately reflect the
10                                                    No. 06-4370

nature of the defendant’s criminal past.1 The government
noted that the defendant’s twenty-nine criminal history
points were significantly more than the thirteen required to
qualify for category VI. Because the criminal history
category underrepresented his criminal background, the
government argued, an upward departure of six offense
levels—from twenty-nine (151-188 months) to thirty-five
(292-362 months)—was warranted. Counsel for Padilla
argued that Padilla’s criminal history was already consid-
ered in the guidelines calculation, and that the government
cited no authority for the suggestion that the guidelines
advised a potential doubling of his sentence. He also
presented mitigating factors, including Padilla’s remorse
for his conduct and his efforts to obtain an education.
  The district court agreed with the PSR’s calculation that
the advisory guidelines sentence was 240 months’ impris-
onment. In considering an above-guidelines sentence, the
district court first noted Padilla’s lengthy criminal history,
including nineteen prior arrests and eleven criminal
convictions, and agreed with the government that the
twenty-nine criminal history points were well above that
required for category VI. The court then explained his


1
     The full text of U.S.S.G. § 4A1.3(a)(4)(B) states:
       Upward Departures from Category VI.—In a case in
       which the court determines that the extent and nature of
       the defendant’s criminal history, taken together, are
       sufficient to warrant an upward departure from Criminal
       History Category VI, the court should structure the
       departure by moving incrementally down the sentencing
       table to the next higher offense level in Criminal History
       Category VI until it finds a guideline range appropriate to
       the case.
No. 06-4370                                                 11

reasons for giving Padilla a sentence above the calculated
guidelines range:
    Drugs tear at the very fabric of our society, split apart
    families and cost people their lives. Defendant’s actions
    have contributed to the ongoing drug problem in the
    country. The sentence I am imposing upon the defen-
    dant is a just punishment for the offense and suffi-
    ciently severe to promote respect for the law and to
    serve as a deterrence to the defendant and to others
    who contemplate engaging in similar criminal conduct.
    The public will be protected by this sentence as the
    defendant will be incarcerated and given an opportu-
    nity to rethink his way of life during that incarceration
    and defendant has indicated that he will change his
    way of life.
The court concluded: “I find that an upward departure as
argued by the government under advisory sentencing
guideline 4A1.3 is appropriate based on the inadequacy of
the defendant’s criminal history score due to both the
number and nature of his prior offenses.” The court then
sentenced Padilla to 327 months’ imprisonment.
  In reviewing Padilla’s sentence, we reserve all but one
issue pending the remand discussed below: the calculation
of the guidelines range. In sentencing a defendant, a
district court begins by calculating the correct applicable
guidelines range. 

(citing Rita v. United
States, 551 U.S. ___, 

, 

(2007));
United States v. Miranda, 

, 791 (7th Cir. 2007).
Padilla argues that the properly calculated range was
151-188 months, and not 240 months, as the district court
concluded. We disagree. The range of 151-188 months was
correct for Padilla’s criminal history category and offense
level, but U.S.S.G. § 5G1.1(b) instructs the district court to
12                                                 No. 06-4370

make the statutory minimum sentence the guidelines
sentence when it exceeds the guidelines range. See U.S.S.G.
§ 5G1.1 cmt.; United States v. Santiago, 

, 822-23,
825 (7th Cir. 2007); United States v. Nelson, 

, 349
(7th Cir. 2007); see also United States v. Duncan, 

,
683 (7th Cir. 2005) (noting that even after Booker, district
courts remain bound by applicable statutory minimums).
As the district court properly calculated, the statutory
minimum sentence under § 841(b)(1)(A) of 240 months’
imprisonment was the guideline sentence.
  Our review of the reasonableness of Padilla’s sentence,
for the time being, ends here. The district court imposed
Padilla’s sentence prior to the Supreme Court’s ruling in
Kimbrough, which addressed the 100:1 sentencing disparity
between offenses involving crack and powder cocaine. In
Kimbrough, the Supreme Court held that district courts are
free to consider, as part of their analysis of the § 3553(a)
factors, the disparity in the guidelines ranges for offenses
involving crack cocaine compared to those for powder

. The Court stated that the guide-
lines for crack offenses are advisory only, and therefore “it
would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes.” 

2
     Prior to Kimbrough, the United States Sentencing
Commission criticized the 100:1 sentencing disparity, and
subsequently reduced the base offense level in
the guideline ranges for crack offenses by two levels
for those sentenced on or after November 1, 2007. See U.S.
SENTENCING COMM’N REPORT TO THE CONGRESS:
                                             (continued...)
No. 06-4370                                                     13

Several of our sister circuits have addressed the impact of
Kimbrough. See, e.g., United States v. Wise, ___ F.3d ___, 

, at *9-10 (3d Cir. Feb. 12, 2008) (affirming
sentence where district court clearly indicated that it
understood the full scope of its discretion to consider the
crack/powder disparity in imposing sentence); United
States v. Medina Casteneda, 

, 1248-49 (9th
Cir. 2008) (remanding for resentencing in light of
Kimbrough where the district court stated that it could not
consider the crack/powder cocaine disparity as part of its
consideration of the § 3553(a) factors); United States v.
Dawson, 

, at *5 (11th Cir. Jan. 24, 2008)
(same).



2
   (...continued)
COCAINE AND FEDERAL SENTENCING POLICY 8 (May 2007),
available at http://www.ussc.gov/r_congress/cocaine2007.pdf;
Amendments to the Sentencing Guidelines for the United States
Courts, 72 Fed.Reg. 28571-28572 (2007). On December 11, 2007,
the Commission voted to give retroactive effect as of March 3,
2008 to the amendment to the crack guideline. See U.S.S.C.
Press Release, U.S. Sentencing Commission Votes
Unanimously to Apply Amendment Retroactively for Crack
Cocaine Offenses (Dec. 11, 2 0 07), available at
http://www.ussc.gov/PRESS/rel121107.htm. Reducing the
crack/ powder disparity does not directly help Padilla, how-
ever. Though the crack guideline change applies retroactively,
it would not affect Padilla’s sentencing guideline range, which
was determined by statute under 21 U.S.C. § 841(b)(1)(A) and
U.S.S.G. § 5G1.1(b). But Kimbrough could potentially affect the
reasonableness of Padilla’s above-guidelines sentence (e.g., if the
district court thought that he could not consider the 100:1
disparity when choosing to add eighty-seven months to Padilla’s
guideline sentence).
14                                               No. 06-4370

  Our challenge in this case is to determine Kimbrough’s
effect on Padilla’s appeal. Padilla did not specifically ask
the district court to consider the 100:1 disparity when
determining his sentence for an offense involving crack.
Nor would he have stood on sound legal footing in so
doing prior to Kimbrough. See United States v. Miller, 

, 273-276 (7th Cir. 2006), abrogated by 

. However, Padilla did contest before the
district court and again on appeal whether the drugs in
question were crack. We can presume that Padilla’s
primary purpose in disputing the drug type was to avoid
the harsh effects of the crack sentencing disparity, since no
other logical inference exists. In so doing, Padilla preserved
the issue, however obliquely, of whether the district court
could consider the 100:1 sentencing disparity in sentencing.
  The district court did not address his agreement or
disagreement with the 100:1 ratio, making no comments
about whether he thought he could consider the disparity
in rendering a sentence. But we need not infer from his
silence that the district court agreed with the 100:1 ratio.
On the record before us, we have no way of knowing if the
district court would have imposed the same above-guide-
lines sentence had the court known that he had discretion
to consider that disparity when deciding upon a sentence
under § 3553(a). This is not a case where the district
court stated that he would have imposed the same sentence
even if there were no guidelines, which would have made
clear that the crack/powder disparity did not affect the
sentencing decision. Cf. United States v. White, ___ F.3d ___,

, at *6 (7th Cir. Mar. 5, 2008). Nor is this a
case where the crack/powder disparity issue was not
adequately preserved at the district court level,
limiting our review to plain error. Cf. United States v.
No. 06-4370                                                     15

Taylor, ___ F.3d ___, 

(7th Cir. March 26,
2008). Because we cannot ascertain with any exacting
degree of certainty whether the sentencing judge would
have imposed the same term of incarceration in the wake
of Kimbrough, and because we find that the issue was
adequately preserved, a remand is appropriate.3
  We express no opinion as to the reasonableness of
Padilla’s sentence. However, we encourage the district
court to keep in mind our mandate, recently reiterated by
the Supreme Court in Gall, that a district court take into
consideration the factors set forth in 18 U.S.C. § 3553(a) and
provide an adequate explanation for the sentence given.
After calculating the Guidelines range, a district court must
give both parties an opportunity to argue for whatever
sentence they deem appropriate, and then consider the
factors set forth in 18 U.S.C. § 3553(a) to determine whether
those factors support the sentence requested by a party.

; United States v. Dale, 

,
611-12 (7th Cir. 2007). If a district court “decides that an
outside-Guidelines sentence is warranted, [it] must con-


3
   In remanding for resentencing, we note the Supreme Court’s
recent remand of a case similar to Padilla’s. See Rios v. United
States, 

(2008) (vacating judgment in United States v.
Rios, 224 Fed.Appx. 529 (7th Cir. 2007) and remanding for
further consideration in light of Kimbrough). In Rios, counsel for
the defendant filed a no-merit brief under Anders v. California,

, 

, 

(1967), and we granted
the motion to withdraw and dismissed the appeal. As in this
case, Rios did not explicitly raise the 100:1 sentencing disparity,
but did dispute that the drugs at issue were crack. The Supreme
Court granted certiorari, vacated the judgment, and remanded
for further consideration in light of Kimbrough. Rios, 

.
16                                                No. 06-4370

sider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree
of variance.” 

; United States v. McIlrath,

, 426 (7th Cir. 2008). The further a sentence
varies from the advisory guidelines range, the more
detailed the district court’s explanation must be. 

(“[A] major departure should be supported by
a more significant justification than a minor one.”); United
States v. Wachowiak, 

, 749-50 (7th Cir. 2007). In
this case, the district court’s explanation for the above-
guidelines sentence, as well as the analysis of the
§ 3553(a) sentencing factors, was slim at best. We recom-
mend a more thorough inquiry on remand.


                      III. Conclusion
  For the foregoing reasons, the judgment of the district
court regarding the drug type finding is AFFIRMED, and we
VACATE Padilla’s sentence and REMAND for resentencing.




                    USCA-02-C-0072—3-31-08