US v. Dewer

Filing 920080221

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4761 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DWIGHT MARCEL DEWER, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:06-cr-00476-NCT) Submitted: January 24, 2008 Decided: February 21, 2008 Before MOTZ, SHEDD, and DUNCAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, David P. Folmar, Jr., Terry M. Meinecke, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwight Marcel Dewer pled guilty to possession of twentyfour grams of cocaine base (crack) with intent to distribute, 21 U.S.C.A. 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007), and was sentenced within the advisory guideline range to a term of seventy months imprisonment. that the district court Dewer appeals his sentence, arguing in declining to consider the erred disparity in sentences for crack and powder cocaine offenses and the pending guideline amendment intended to reduce the disparity as grounds for a variance below the guideline range. explained below, we vacate the sentence For the reasons remand for and resentencing. At the time Dewer was sentenced, our circuit precedent did not permit the sentencing court to impose a variance sentence based on the disparity in sentences prescribed under the guidelines for crack and powder cocaine offenses. See United States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio could not be basis for variance), vacated, ___ S. Ct. ___, 2008 WL 59208 (U.S. Jan. 7, 2008) (No. 05-11659). Since the parties' briefs were filed, the Supreme Court decided, in Kimbrough v. United States, 128 S. Ct. 558 (2007), 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 - 2 - a mine-run case." abrogated Eura. Kimbrough, 128 S. Ct. at 575. Kimbrough thus We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007). A sentence within a correctly calculated advisory guideline range is presumptively reasonable. United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006); see also Rita v. United States, 127 S. Ct. 2456, 246269 (2007) (upholding presumption of reasonableness for withinguidelines sentence). However, in deciding not to vary below the guideline range in this case, the district court did not have the benefit of the Supreme Court's decision in Kimbrough. To give the district court an opportunity to reconsider the sentence in light of Kimbrough, we conclude that resentencing is necessary. We resentencing therefore in light vacate of the sentence On and remand the for Kimbrough. remand, amended guidelines for crack offenses, effective November 1, 2007, will be applicable. 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 - 3 -

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