United States v. Thomas ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4835
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEXTER THEATRA THOMAS,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 06-6853)
Submitted: April 16, 2008 Decided: May 1, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John J. Korzen, Kernersville, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dexter Theatra Thomas pled guilty, pursuant to a written
plea agreement, to one count of distributing crack cocaine. In the
presesentence investigation report (“PSR”), Thomas was found
responsible for distributing 229.5 grams of crack cocaine resulting
in a base offense level of 34. However, because he qualified as a
career offender, Thomas’ adjusted offense level was 37. See U.S.
Sentencing Guidelines Manual (USSG) § 4B1.1 (2004). Deducting
three points for acceptance of responsibility, Thomas’ total
offense level was 34. No other adjustments were made. Based on a
total offense level of 34 and a Criminal History Category of VI,
Thomas’ Guidelines range was 262-327 months imprisonment.
Thomas was sentenced following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). The
district court applied the holding of Booker and sentenced Thomas
to 270 months imprisonment. In both his sentencing objections in
the district court and on appeal, Thomas challenged the 100:1 crack
to powder cocaine ratio. On appeal, Thomas further argued that the
district court failed to fully account for all the factors
enumerated in 18 U.S.C. § 3553(a) (2000). Rejecting these claims,
we affirmed. See United States v. Thomas, No. 05-4835 (4th Cir.
June 26, 2006) (unpublished).
The Supreme Court granted Thomas’ petition for writ of
certiorari, vacated this court’s judgment and remanded the case for
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further consideration in light of Kimbrough v. United States, 128
S. Ct. 558 (2007) (holding that a sentencing judge is free to
consider the disparity between the Guidelines’ treatment of crack
and powder cocaine offenses in determining whether, “in the
particular case, a within-Guidelines sentence is ‘greater than
necessary’ to serve the objectives of sentencing.” Id. at 564
(citing 18 U.S.C. § 3553(a)).
Upon review of the record, we conclude that resentencing
is warranted. Therefore, we vacate Thomas’ sentence and remand to
the district court for resentencing in light of Kimbrough. 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
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