UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4761
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWIGHT MARCEL DEWER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00476-NCT)
Submitted: January 24, 2008 Decided: February 21, 2008
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Terry M. Meinecke, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight Marcel Dewer pled guilty to possession of twenty-
four grams of cocaine base (crack) with intent to distribute,
21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007), and
was sentenced within the advisory guideline range to a term of
seventy months imprisonment. Dewer appeals his sentence, arguing
that the district court erred in declining to consider the
disparity in sentences for crack and powder cocaine offenses and
the pending guideline amendment intended to reduce the disparity as
grounds for a variance below the guideline range. For the reasons
explained below, we vacate the sentence and remand for
resentencing.
At the time Dewer was sentenced, our circuit precedent
did not permit the sentencing court to impose a variance sentence
based on the disparity in sentences prescribed under the guidelines
for crack and powder cocaine offenses. See United States v. Eura,
440 F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio could
not be basis for variance), vacated, ___ S. Ct. ___, 2008 WL 59208
(U.S. Jan. 7, 2008) (No. 05-11659). Since the parties’ briefs were
filed, the Supreme Court decided, in Kimbrough v. United States,
128 S. Ct. 558 (2007), that “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, even in
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a mine-run case.” Kimbrough, 128 S. Ct. at 575. Kimbrough thus
abrogated Eura.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007). A sentence within a correctly calculated advisory
guideline range is presumptively reasonable. United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-
69 (2007) (upholding presumption of reasonableness for within-
guidelines sentence). However, in deciding not to vary below the
guideline range in this case, the district court did not have the
benefit of the Supreme Court’s decision in Kimbrough. To give the
district court an opportunity to reconsider the sentence in light
of Kimbrough, we conclude that resentencing is necessary.
We therefore vacate the sentence and remand for
resentencing in light of Kimbrough. On remand, the amended
guidelines for crack offenses, effective November 1, 2007, will be
applicable. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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