United States v. McGee , 269 F. App'x 336 ( 2008 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4686
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)
Submitted: February 13, 2008 Decided: 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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 has filed a petition for rehearing, raising
Kimbrough. We grant the petition and dispense with 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. The parties’ joint
motion to remand is denied as moot. We express no opinion on the
appropriateness of a variance sentence.
VACATED AND REMANDED
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