                            ON REHEARING

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4686



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LENARDO RODRIKUS MCGEE,

                                             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. (1:06-cr-00444-JAB)


Submitted:   February 13, 2008             Decided:   March 17, 2008


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lenardo    Rodrikus     McGee       appealed      from   his   117-month

sentence, contending that the district court erred in declining to

vary from the advisory Sentencing Guidelines range on the basis of

the harshness of the Guidelines’ 100:1 crack-to-powder cocaine

ratio.     In a prior opinion, we concluded that McGee’s claim was

barred by our decision in United States v. Eura, 440 F.3d 625, 634

(4th Cir. 2006) (holding that 100:1 ratio cannot be the basis of a

variance), vacated, 128 S. Ct. 853 (2008).               However, subsequent to

our decision, the Supreme Court issued Kimbrough V. United States,

128 S. Ct. 558, 575 (2007), which abrogated Eura and 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 [18 U.S.C.A. § 3553(a) (West 1999 & Supp. 2007)]’s

purposes, even in a mine-run case.”

             McGee   has   filed    a    petition       for    rehearing,    raising

Kimbrough.      We    grant   the   petition      and    dispense     with   further

briefing and argument.        To give the district court an opportunity

to reconsider McGee’s sentence in light of Kimbrough, we vacate

McGee’s sentence and remand for resentencing.                   The parties’ joint

motion to remand is denied as moot.              We express no opinion on the

appropriateness of a variance sentence.

                                                              VACATED AND REMANDED




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