United States v. Foote , 276 F. App'x 307 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WESLEY DEVON FOOTE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-7941)
Submitted: April 15, 2008 Decided: May 7, 2008
Before MICHAEL, TRAXLER, and KING, 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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Wesley Devon Foote pled guilty to three counts of
distribution of cocaine base (crack) after a prior conviction for
a drug offense, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.
2007). He was sentenced as a career offender to a term of 262
months imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1
(2005). Foote appealed his sentence, arguing that he was
improperly sentenced as a career offender, that this court’s
standard of review for criminal sentences is an unconstitutional
return to mandatory guideline sentencing, and that the district
court erroneously believed that it lacked authority to impose a
sentence below the guideline range based in part on the disparity
in sentences for crack and cocaine offenses. We affirmed his
sentence; however, the Supreme Court subsequently vacated the
judgment and remanded the case for reconsideration in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007). See United
States v. Foote, 249 F. App’x 967 (4th Cir. 2007), vacated, 128 S.
Ct. 1133 (2008).
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 § 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- 2 -
(4th Cir. 2006) (holding that sentencing court may not vary from
guideline range solely because of 100:1 ratio for crack/cocaine
offenses), vacated, 128 S. Ct. 853 (2008). The district court did
not have the benefit of Kimbrough when it determined Foote’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, Foote will be resentenced under the revised
guidelines for crack offenses that took effect on November 1, 2007.
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