US v. McGee
ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
February 13, 2008
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
- 2 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?