UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4901
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY EUGENE EVERHART,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-9376)
Submitted: July 24, 2008 Decided: August 13, 2008
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Ricky Eugene Everhart was found
guilty of conspiracy to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp.
2008), and two counts of possession with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1). He was sentenced to 360 months’ imprisonment.
Everhart appealed, and although we affirmed his convictions, we
remanded for resentencing in light of United States v. Booker, 543
U.S. 220 (2005). See United States v. Everhart, 166 F. App’x 61
(4th Cir. 2006) (No. 04-5124).
On remand, Everhart argued, in relevant part, that the
district court should impose a variance sentence because the
Sentencing Guidelines’ 100-to-1 crack cocaine/powder cocaine ratio
created unwarranted sentencing disparity. Based upon then-
authoritative Circuit precedent, the district court rejected
Everhart’s request for a variance sentence and reimposed a 360-
month term of imprisonment. We affirmed the district court’s
order. See United States v. Everhart, 245 F. App’x 316 (4th Cir.
2007) (No. 06-4901), vacated, 128 S. Ct. 1750 (2008). Everhart
filed a petition for writ of certiorari from the United States
Supreme Court, which vacated his sentence and remanded his case to
this court for further consideration in light of Kimbrough v.
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United States, 128 S. Ct. 558 (2007), and Gall v. United States,
128 S. Ct. 586 (2007).
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 [18 U.S.C.A]
§ 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 sentencing court may not vary
from Guidelines range solely because of 100-to-1 ratio for
crack/powder offenses), vacated, 128 S. Ct. 853 (2008). The
district court did not have the benefit of Kimbrough when it
determined Everhart’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, Everhart will be resentenced under the revised
Guidelines for crack offenses that took effect on November 1, 2007.
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