                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4113



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BRANDI MARTIN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:06-cr-00197)


Submitted:   January 23, 2008             Decided:   February 7, 2008


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Monica L. Dillon, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Brandi Martin pled guilty to distribution of a quantity

of cocaine base (crack), 21 U.S.C. § 841(a) (2000), and was

sentenced to a term of thirty-seven months imprisonment.            Martin

appeals her sentence, challenging on due process grounds the

district court’s decision not to impose a variance sentence below

the advisory guideline range. She also argues that the court erred

in treating the 100:1 ratio for crack and powder cocaine offenses

as a factor that could not justify a sentence outside the guideline

range.    In her reply brief, Martin moves for resentencing under 18

U.S.C. § 3582(c)(2) (2000).        For the reasons explained below, we

deny     the    motion   but   vacate   the   sentence   and   remand   for

resentencing.

               At sentencing, Martin did not dispute the calculation of

her guideline range but, in her argument for a variance, she urged

the district court to consider the Sentencing Commission’s negative

view of the 100:1 ratio for crack and powder cocaine offenses.

Arguing against a variance, the government relied on 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, ___ S. Ct. ___,

2008 WL 59208 (U.S. Jan. 7, 2008) (No. 05-11659).




                                    - 2 -
           A sentence is reviewed for reasonableness, applying an

abuse of discretion standard.*         Gall v. United States, 128 S. Ct.

586, ___, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007) (No. 06-

7949). A sentence within a correctly calculated advisory guideline

range is accorded a rebuttable presumption of reasonableness on

appeal.    United States v. Moreland, 437 F.3d 424, 433 (4th Cir.),

cert. denied, 126 S. Ct. 2054 (2006); see also Rita v. United

States, 127 S. Ct. 2456, 2462-69 (2007) (upholding rebuttable

presumption    of    reasonableness     for   within-guideline     sentence).

However, after the parties’ briefs were filed, the Supreme Court

decided, in Kimbrough v. United States, 128 S. Ct. 558 (2007), 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 ___, 2007 WL 4292040, at *14.              Kimbrough

thus abrogated Eura.

           Because the district court did not have the benefit of

Kimbrough when it determined Martin’s sentence, we vacate the

sentence and remand the case for resentencing.                 We express no

opinion as to the reasonableness of a variance sentence.                 We deny


      *
      In her plea agreement, Martin waived her right to seek
appellate review of the reasonableness of her sentence. Because
the government has not asserted the waiver as a bar to this appeal,
we do not consider it. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).

                                      - 3 -
Martin’s motion for resentencing under § 3582(c)(2).            On remand,

the amended guidelines for crack offenses, effective November 1,

2007, will be applicable.     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




                                   - 4 -
