UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERSHOM CANADY,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 06-6222)
Submitted: April 25, 2008 Decided: May 14, 2008
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Gretchen L. Taylor,
Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Robert E.
Bradenham, II, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gershom Canady pled guilty to eight drug offenses,
including two counts of possession with intent to distribute crack
cocaine and two counts of possession with intent to distribute
cocaine, and was sentenced to 136 months in prison. Canady
appealed his sentence, claiming that: (1) the district court failed
to consider one of the factors set forth at 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2007); and (2) the court erroneously refused to
consider the 100:1 crack/cocaine disparity. We affirmed his
sentence; however, the Supreme Court subsequently vacated the
judgment and remanded the case for reconsideration in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007). See United
States v. Canady, 178 F. App’x 213 (4th Cir. 2006), vacated, 128 S.
Ct. 854 (2008).
In Kimbrough, the Supreme Court held 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, 128 S. Ct. at 575.
Kimbrough has thus abrogated United States v. Eura, 440 F.3d 625
(4th Cir. 2006) (holding that sentencing court may not vary from
guideline range solely because of 100:1 ratio for crack/cocaine
offenses), vacated, 128 S. Ct. 853 (2008). The district court did
not have the benefit of Kimbrough when it determined Canady’s
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sentence. To give the district court the 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 and remand for resentencing.* 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
*
On remand, Canady will be resentenced under the guidelines
for crack/cocaine offenses that took effect on November 1, 2007.
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