United States v. Barber ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEYTON BARBER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:07-cr-00024-FPS-1)
Submitted: October 9, 2008 Decided: November 18, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Randolph J. Bernard, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peyton Barber pled guilty pursuant to a written plea
agreement to one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
(2000). She was sentenced to thirty months in prison. Barber
sought a departure or variance sentence based upon the sentencing
disparity between crack cocaine and powder cocaine in the
applicable advisory guidelines, but the district court found that
Barber’s request was foreclosed by United States v. Eura, 440 F.3d
625 (4th Cir. 2006). Barber timely appealed.
After the judgment was entered and while the appeal was
pending, the Supreme Court issued Kimbrough v. United States, 128
S. Ct. 558 (2007). The Court held “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.” Id. at 574. Accordingly, the Court
remanded to permit the district court to consider the 100-to-1
ratio of crack cocaine to powder cocaine in sentencing. Barber
argues, and the Government concedes, that this case should be
remanded for resentencing in light of Kimbrough.
Because the district court did not have the benefit of
Kimbrough when sentencing Barber, we vacate Barber’s sentence and
remand for resentencing. We dispense with oral argument because
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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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