UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES M. ANDERSON, a/k/a Hollywood,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-7378)
Submitted: April 9, 2008 Decided: May 23, 2008
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James M. Anderson pled guilty to distributing a quantity
of cocaine base (crack), 21 U.S.C. § 841(a)(1) (2000), and was
sentenced to a term of 108 months imprisonment. Anderson appealed
his sentence, arguing that the district court erred by seeking to
impose a “reasonable” sentence rather than a sentence “sufficient,
but not greater than necessary” to comply with the purposes of 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and failed to consider
adequately the effect of the 100:1 sentencing ratio for cocaine and
crack offenses in his case. He also claimed that his sentence was
greater than necessary to further the purposes of § 3553(a)(2). 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. Anderson, 241 F. App’x 912 (4th Cir. 2007),
vacated, 128 S. Ct. 913 (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
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offenses), vacated, 128 S. Ct. 853 (2008). The district court did
not have the benefit of Kimbrough when it determined Anderson’s
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, Anderson will be resentenced under the revised
guidelines for crack offenses that took effect on November 1, 2007.
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