US v. McGee

Filing 920080317

Opinion

ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4686

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LENARDO RODRIKUS MCGEE, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00444-JAB)

Submitted:

February 13, 2008

Decided:

March 17, 2008

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, David P. Folmar, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lenardo Rodrikus McGee appealed from his 117-month

sentence, contending that the district court erred in declining to vary from the advisory Sentencing Guidelines range on the basis of the harshness of the Guidelines' 100:1 crack-to-powder cocaine ratio. In a prior opinion, we concluded that McGee's claim was

barred by our decision in United States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio cannot be the basis of a variance), vacated, 128 S. Ct. 853 (2008). However, subsequent to

our decision, the Supreme Court issued Kimbrough V. United States, 128 S. Ct. 558, 575 (2007), which abrogated Eura and 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) (West 1999 & Supp. 2007)]'s purposes, even in a mine-run case." McGee Kimbrough. We has filed the a petition and for rehearing, with raising further

grant

petition

dispense

briefing and argument.

To give the district court an opportunity

to reconsider McGee's sentence in light of Kimbrough, we vacate McGee's sentence and remand for resentencing. motion to remand is denied as moot. The parties' joint

We express no opinion on the

appropriateness of a variance sentence. VACATED AND REMANDED

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