United States v. Ruhbayan , 294 F. App'x 23 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAJUL RUHBAYAN, a/k/a James Vernette Johnson, a/k/a James
Vernon Wood, a/k/a Jibrael Ruhalamin, a/k/a Jibra’el Ruh-
alamin, a/k/a Amir Ruhbayan, a/k/a Deja, a/k/a Day-Ja, a/k/a
Kreem, a/k/a Creme,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-7811)
Submitted: February 29, 2008 Decided: September 22, 2008
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Joseph Barry McCracken, Norfolk, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, James Ashford Metcalfe,
Assistant United States Attorney, Jonathan Tate Mlinarcik, Third-
Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2003, Rajul Ruhbayan was convicted by a jury in the Eastern
District of Virginia on four offenses arising from a perjury and
obstruction of justice scheme. Thereafter, in 2004, the district
court sentenced Ruhbayan to life in prison on one offense and to
three concurrent sixty-month sentences on the other three offenses.
We affirmed his convictions but vacated his sentence, remanding for
resentencing pursuant to United States v. Booker, 543 U.S. 220(2005). See United States v. Ruhbayan, 406 F.3d 292 (4th Cir.
2005).
On remand, in 2005, the district court reimposed the initial
sentence. Ruhbayan appealed, challenging, inter alia, the district
court’s failure to “take into account factors [under 18 U.S.C.
§ 3553(a)] which should have mitigated against the harsh sentence
imposed,” Br. of Appellant 43, including “the need to avoid
inappropriate sentencing disparities” resulting from “the 100-to-1
ratio between powder and crack cocaine,” id. at 47.* Ruhbayan
nevertheless acknowledged our then-controlling decision in United
States v. Eura, 440 F.3d 625 (4th Cir. 2006) (holding that 100:1
*
The district court found that Ruhbayan committed and suborned
perjury in connection with his 2000 trial on a prior federal charge
of conspiracy to distribute crack cocaine. Under the Sentencing
Guidelines, Ruhbayan’s base offense level for perjury and suborning
perjury was six levels below the offense level for the underlying
drug conspiracy offense (up to a maximum level of 30), with the
offense level for the underlying drug conspiracy offense being
premised on the amount of crack cocaine attributed to him. See
U.S.S.G. §§ 2J1.3, 2X3.1, 2D1.1(c).
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ratio cannot be the basis of a variance), vacated 128 S. Ct. 853(2008). We rejected Ruhbayan’s appellate contentions and affirmed
his sentence. See United States v. Ruhbayan, 527 F.3d 107 (4th
Cir. 2007).
Ruhbayan filed a petition for writ of certiorari, and the
Supreme Court vacated the judgment and remanded to this court for
further consideration in light of Kimbrough v. United States, 128
S. Ct. 558, 564 (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” (quoting 18
U.S.C. § 3553(a))). Upon review of the record, we conclude that
resentencing is warranted. Accordingly, we vacate Ruhbayan’s
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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