                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4467



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.


DARRIUS TREVON DAVIS,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (4:06-cr-00060-BO)


Submitted:    June 17, 2008                 Decided:   August 6, 2008


Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Darrius   Trevon    Davis   appeals   his   211-month     prison

sentence following his guilty plea to distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (2000); possession with

intent to distribute more than five grams of cocaine base, in

violation of § 841(a)(1); possession with intent to distribute

marijuana, in violation of § 841(a)(1); and distribution of more

than fifty grams of cocaine base, in violation of § 841(a)(1).                We

affirm Davis’ convictions, but vacate his sentence and remand for

resentencing.

            Davis objected to his sentence on the basis that the one

hundred—to—one sentencing disparity between cocaine base and powder

cocaine in § 841 violated his constitutional rights.            While the

Sentencing Commission has recently amended the federal sentencing

Guidelines to reduce the disparity between cocaine base and powder

cocaine in the Guidelines, see U.S. Sentencing Guidelines Manual

§ 2D1.1 (2007) (Amendment 706); USSG § 1B1.10(c) (Mar. 3, 2008),

the statute has not been amended.       The Supreme Court, in Kimbrough

v. United States, 128 S. Ct. 558, 575 (2007), held that under the

advisory    Guidelines,   the   sentencing   court   may   conclude      in    a

particular case that a sentence based on the one hundred—to—one

disparity is too great, and may consequently impose a variance

sentence below the Guideline.      Notably, however, the Court did not

find   §   841’s   penalty   provisions    unconstitutional.        We   have


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repeatedly rejected challenges to the constitutionality of § 841.

See, e.g., United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir.

1995); United States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994).

Thus, the district court did not violate Davis’ constitutional

rights when it sentenced him under § 841.

          Next,   Davis   challenges    the    reasonableness   of   his

sentence. The district court did not have the benefit of Kimbrough

when it determined Davis’ sentence. To give the district court the

opportunity to reconsider the sentence in light of Kimbrough, we

conclude that resentencing is appropriate.*

          We therefore vacate the sentence imposed by the district

court and remand 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.



                                              AFFIRMED IN PART, VACATED
                                                   IN PART, AND REMANDED




     *
      We offer no criticism of the district court, which properly
applied the relevant law at the time of sentencing. We express no
view of the sentence to be imposed on Davis on remand, leaving that
to the sound discretion of the district court.

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