                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4782



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


BARRY TUNSTALLE,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00014-01)


Submitted:   January 30, 2008          Decided:     February 22, 2008


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.    Charles T.
Miller, United States Attorney, Miller A. Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Barry Tunstalle pled guilty to one count of distributing

cocaine   base   (crack),   21   U.S.C.       §   841(a)(1)    (2000),    and   was

sentenced to a term of fifty-five months imprisonment.                   Tunstalle

appeals his sentence, contending that the district court erred in

not considering the inherent inequity of the 100:1 ratio for crack

offenses and powder cocaine offenses as the basis for a variance in

his case, and that his sentence is consequently unreasonable.                   We

vacate the sentence and remand for resentencing.*

            At sentencing, Tunstalle requested a variance on the

ground described, but acknowledged our decision in United States v.

Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio

may not be used as basis for variance), vacated, 128 S. Ct. 853

(2008). The district court declined to impose a variance sentence.

            We review a sentence for reasonableness, applying an

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

586, 597 (2007). 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


     *
      In his plea agreement, Tunstalle waived his right to appeal
the reasonableness of any sentence within the guideline range.
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).

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presumption of reasonableness for within-guidelines 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 575.          Kimbrough thus abrogated Eura.

            Because the district court did not have the benefit of

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

sentence and remand for resentencing in light of Kimbrough.                     On

remand,    the   amended   guidelines     for    crack      offenses,   effective

November 1, 2007, will apply.             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




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