UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4692
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLEVELAND JORDAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00033-RBS)
Submitted: February 22, 2008 Decided: March 4, 2008
Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Richard D.
Cooke, William D. Muhr, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland Jordan, Jr., pled guilty to three counts of
possession of crack with intent to distribute, 21 U.S.C.A.
§ 841(a), (b)(1)(B) (West 1999 & Supp. 2007), and was sentenced at
the bottom of the advisory guideline range to a term of 108 months
imprisonment. Jordan appeals his sentence, arguing that the
district court erred in declining to consider the disparity in
sentences for crack and powder cocaine offenses, applied the wrong
legal standard in determining his sentence, and imposed a sentence
greater than necessary to fulfill the purposes of sentencing. For
the reasons explained below, we vacate the sentence and remand for
resentencing.
When Jordan 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 used as basis for variance), vacated, 128 S. Ct. 853 (2008).
Since then, the Supreme Court decided, in Kimbrough v. United
States, 128 S. Ct. 558, 575 (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 a mine-run case.” Kimbrough thus abrogated Eura.
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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 depart or 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 imposed by the district
court. 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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