United States v. Green , 404 F. App'x 758 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4045
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK CHARLES GREEN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:09-cr-00092-H-1)
Submitted: November 5, 2010 Decided: December 10, 2010
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Charles Green appeals the sixty-month sentence
imposed following his guilty plea to possession of fifty grams
or more of cocaine base with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) (2006). On appeal, Green contends that
the district court procedurally erred in sentencing him by
failing to recognize its authority to reject the crack-to-
powder-cocaine sentencing disparity. The Government concurs.
After carefully reviewing the record, we agree that the court
procedurally erred, vacate Green’s sentence, and remand for
further proceedings in light of Spears v. United States,
129 S. Ct. 840, 843-44 (2009) (“[D]istrict courts are entitled
to reject and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those
Guidelines.”). We dispense with oral argument because the
issues are adequately presented before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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