entitled to re-sentencing under United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), where this Court held that the District Court has the discretion to impose a sentence below the applicable Guidelines range for a crack cocaine offense if the District Court concludes that the higher penalties imposed for crack cocaine offenses versus powder cocaine offenses would not serve the goals of sentencing in a particular case. However, as we stated in Gunter, “[t]he limited holding here is that district courts may consider the craek/powder cocaine differential in the Guidelines as a [18 U.S.C. § 3553(a) ] factor, but not a mandate, in the post-Booker sentencing process.” 462 F.3d at 249 (emphasis added); see also Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007) (<HOLDING>) (quoting 18 U.S.C. § 3553(a)). Here, the
holding that the trial judge may consider the crackpowder cocaine disparity in determining whether in the particular case a withinguidelines sentence is greater than necessary to serve the objectives of sentencing holding that crackpowder disparity was constitutional stating that ujntil the en banc court of this circuit the us supreme court or congress itself accepts this assertion of disparity and finds it untenable challenges to the sentencing guidelines based on the disparity between sentences for crack cocaine and powder cocaine will continue to fail holding that while tenth circuit had specifically and clearly held that crackpowder disparity was not valid basis for departure district court was free to consider this disparity in determining sentence postbookerfanfan holding that a judge may consider the disparity between the guidelines treat ment of crack and powder cocaine offenses in deciding upon a sentence holding that sentencing disparity between crack and powder cocaine is constitutional