                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-4076



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


PEYTON BARBER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:07-cr-00024-FPS-1)


Submitted:   October 9, 2008              Decided:   November 18, 2008


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Randolph J. Bernard, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Peyton Barber pled guilty pursuant to a written plea

agreement to one count of possession with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)

(2000).     She was sentenced to thirty months in prison.           Barber

sought a departure or variance sentence based upon the sentencing

disparity     between   crack   cocaine   and   powder   cocaine   in   the

applicable advisory guidelines, but the district court found that

Barber’s request was foreclosed by United States v. Eura, 440 F.3d

625 (4th Cir. 2006).     Barber timely appealed.

            After the judgment was entered and while the appeal was

pending, the Supreme Court issued Kimbrough v. United States, 128

S. Ct. 558 (2007).      The Court held “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.”         Id. at 574.    Accordingly, the Court

remanded to permit the district court to consider the 100-to-1

ratio of crack cocaine to powder cocaine in sentencing.             Barber

argues, and the Government concedes, that this case should be

remanded for resentencing in light of Kimbrough.

            Because the district court did not have the benefit of

Kimbrough when sentencing Barber, we vacate Barber’s sentence and

remand for resentencing.        We dispense with oral argument because


                                     2
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




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