                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 05-5230



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TYNISA DOVON RANDOLPH,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 06-6445)


Submitted:   April 16, 2008                 Decided:   May 1, 2008


Before WILLIAMS, Chief Judge, and KING and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.     Thomas E. Johnston, United States
Attorney, David E. Godwin, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Tynisa Dovon Randolph pled guilty to possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C) (2000).    At sentencing, Randolph requested

a variance from the sentencing guidelines based on the 100:1

disparity between sentences for crack cocaine and cocaine powder

offenses.   The district court believed it was constrained to defer

to the guidelines and sentenced Randolph to the low end of the

properly calculated guidelines range of imprisonment.      On appeal,

we affirmed her sentence, noting her challenge to the sentencing

disparity was foreclosed by United States v. Eura, 440 F.3d 625

(4th Cir. 2006) (holding that 100:1 ratio could not be used as

basis for variance), vacated, 128 S. Ct. 853 (2008).       See United

States v. Randolph, 185 F. App’x 225 (4th Cir. 2006) (No. 05-5230).

On January 7, 2008, the Supreme Court granted Randolph’s petition

for writ of certiorari, vacated this court’s judgment, and remanded

the case for further consideration in light of Kimbrough v. United

States, 128 S. Ct. 558 (2007).    See Randolph v. United States, 128

S. Ct. 854 (2008).

            In Kimbrough, the Supreme Court 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 § 3553(a)’s

purposes, even in a mine-run case.”      Kimbrough, 128 S. Ct. at 575.


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Kimbrough has thus abrogated Eura.      Although this court has held

that a sentence within a correctly calculated advisory guideline

range is presumptively reasonable, see United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127

S.   Ct.   2456,   2462-69    (2007)    (upholding   presumption   of

reasonableness for within-guidelines sentence), in this case, the

district court did not have the benefit of Kimbrough when it

determined Randolph’s sentence.

           To give the district court the opportunity to reconsider

the sentence in light of Kimbrough, we vacate Randolph’s sentence

and remand the case for resentencing.*        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




     *
      On remand, the amended Guidelines for crack cocaine offenses,
effective November 1, 2007, will apply.

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