                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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