                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4933



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ROGER T. TERRY, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:06-cr-00228)


Submitted:   April 22, 2008                 Decided:   May 7, 2008


Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Matthew A. Victor, VICTOR VICTOR & HELGOE, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Kristina D. Raynes, Special Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Roger T. Terry, Jr., was convicted after a jury trial of

two counts of possession with intent to distribute five or more

grams    of   cocaine   base   (“crack”),    in    violation   of   21    U.S.C.

§ 841(a)(1) (2000). The district court sentenced him to 151 months

imprisonment.* He appeals, challenging the district court’s denial

of his motion to suppress evidence discovered during two searches

and also challenging his sentence.          We affirm his convictions, but

vacate his sentence and remand for resentencing.

              Terry contends that the district court erred in denying

his motion to suppress crack cocaine that was discovered on his

person following his arrest on January 11, 2006, asserting that the

police    officer   lacked     justification      for   approaching    him     and

ultimately     arresting   him,   that   the   strip     search   of     him   was

unreasonable, and that the prompt presentation rule was violated.

He also sought to suppress evidence of the money discovered in a

safe in his apartment, contending that he did not freely and

voluntarily consent to the officers’ search of his apartment.

              We have carefully considered the arguments of counsel and

the evidence presented to the district court, and we conclude that

the district court did not clearly err in denying Terry’s motion to

suppress.     See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.


     *
      After Terry noted this appeal, the district court granted the
government’s Fed. R. Crim. P. 35(b) motion and reduced Terry’s
sentence to 78 months.

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1992) (providing standard of review).         Thus, we affirm the denial

of the motion to suppress for the reasons stated by the district

court.

            Terry also challenges his sentence, contending that the

district court erred in converting to crack cocaine all of the

currency located in the safe found in his bedroom.          He argues that

this finding disregarded the testimony of his mother that Terry,

his mother, and his girlfriend were saving their money for a down

payment on a house.         The district court’s finding that this

testimony was incredible is not clearly erroneous.              See United

States v. Fisher, 58 F.3d 96, 100 (4th Cir. 1995) (providing that

credibility determinations are within province of sentencing court

and will not be overturned unless clearly erroneous).

            Terry contends that the court erred in concluding that

the money was proceeds from the sale of drugs.            Citing to United

States v. Rhynes, 196 F.3d 207, 238 (4th Cir. 1999), vacated in

part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc),

Terry    also   argues   that,   because   there   was   evidence   that   he

possessed some powder cocaine, the currency should have been

converted to powder, rather than to crack cocaine.                  We have

reviewed the evidence and the arguments presented here and find

that the district court’s ruling that the entire amount of the cash

was proceeds from the sale of crack cocaine is supported by a

preponderance of the evidence and was not clearly erroneous.               See


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United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,

126 S. Ct. 2309 (2006); United States v. Crump, 120 F.3d 462, 468

(4th Cir. 1997).    We therefore affirm this ruling.

          Terry    also   challenges   his   sentence   as   unreasonable,

citing to the November 1, 2007 amendment to the crack cocaine

guideline and the Supreme Court’s consideration of whether the

crack to powder cocaine disparity may be considered in sentencing.

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

          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.

Here, the district court did not have the benefit of Kimbrough when

it determined Terry’s sentence.        To give the district court the

opportunity to reconsider the sentence in light of Kimbrough, we

conclude that resentencing is necessary.

          We therefore vacate the sentence imposed by the district

court and remand for resentencing.           On remand, Terry will be

resentenced under the revised guidelines for crack offenses that

took effect on November 1, 2007.       We dispense with oral argument

because the facts and legal contentions are adequately presented in




                                 - 4 -
the materials before the court and argument would not aid the

decisional process.


                                             AFFIRMED IN PART,
                                              VACATED IN PART,
                                                  AND REMANDED




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