United States v. Britt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4752
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE TIAWAN BRITT,
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. (1:03-cr-00184-JAB)
Submitted: January 23, 2008 Decided: February 25, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Tiawan Britt was convicted of possession of a
firearm in commerce after being convicted of a felony (Count One),
possession with intent to distribute cocaine base “crack” (Count
Two), possession of a firearm during a drug trafficking crime
(Count Three), maintaining a place for manufacturing, distributing
and using crack and marijuana (Count Four), and possession of a
firearm and ammunition in commerce after a felony conviction (Count
Eight). In 2004, the court sentenced Britt to 103-month concurrent
sentences for Counts One, Two, Four and Eight, and a 60-month
sentence for Count Three to be served consecutively to Count One,
for a total of 163 months of imprisonment. This court affirmed
Britt’s convictions but remanded for resentencing in light of
Booker. See United States v. Britt, No. 04-4313 (4th Cir. Feb. 13,
2007) (unpublished).
On remand, Britt specifically noted the then-pending
amendments to the Sentencing Guidelines, which would lower the
punishment for amounts of crack cocaine, and argued that the
district court should impose a lower sentence based on the proposed
amendments. He also noted the sentencing disparity between crack
and powder cocaine and cited to the Supreme Court’s then—pending
case raising this issue in Kimbrough v. United States, 128 S. Ct.
558 (2007). The district court denied relief on these arguments,
based on Circuit precedent, United States v. Eura, 440 F.3d 625,
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632-34 (4th Cir. 2006). Based on the amended presentence report,
Britt’s advisory sentencing range was calculated as 78-97 months,
and the district court sentenced Britt to 78 months of imprisonment
for Counts One, Two, Four, and Eight and a 60-month consecutive
sentence for Count Three.
Britt timely appeals, alleging that the district court
erred by declining to consider, under 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007), the crack cocaine/powder cocaine sentencing
disparity, and the then-pending Sentencing Guidelines amendments
intended to partially address that disparity. For the reasons that
follow, we vacate and remand for resentencing.*
Since Britt’s resentencing, our opinion in Eura has been
abrogated by Kimbrough. See 128 S. Ct. at 565-66 & n.4. Moreover,
the proposed amendments, lowering the punishment for amounts of
crack cocaine, are reflected in the 2007 version of the Sentencing
Guidelines.
Accordingly, we vacate the sentence and remand for the
district court to resentence Britt in light of Kimbrough and
consider any other issues the parties may raise.
*
We offer no criticism of the district court, which followed
the relevant Circuit precedent in resentencing Britt.
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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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