           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 24, 2008
                                     No. 07-10606
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ENTONYO ELIJAH JONES

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 7:06-CR-26-ALL


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Entonyo Elijah Jones pled guilty to one count of possession with intent to
distribute 50 grams or more of cocaine base and received a 135-month term of
imprisonment. On appeal, Jones contends that a downward variance should
have been granted due to the sentencing disparity between crack and powder
cocaine, and also that the district court did not properly explain the reasons for
the sentence. For the reasons explained below, we vacate Jones’s sentence and
remand.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 07-10606

      Jones pled guilty to an offense under 21 U.S.C. § 841. The district court
calculated Jones’s offense level based upon drug amount, incorporated a three-
level reduction for acceptance of responsibility, and imposed a 135-month term
of imprisonment. The sentence range calculated under the Guidelines was 135
to 168 months. Jones challenges his sentence.
      This court employs a two-step process in reviewing whether a district court
abused its discretion in sentencing. The first step is to determine whether a
procedural error arose in the district court’s interpretation and application of the
Sentencing Guidelines. Gall v. United States, 128 S. Ct. 586, 597 (2007)
(procedural error includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence”).         We review a district court’s
interpretation and application of the Guidelines de novo. United States v.
Newsom, 508 F.3d 731, 733 (5th Cir. 2007).
      The second step is to consider whether the sentence imposed is reasonable.
This entails evaluating the “substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. This Circuit
employs a rebuttable presumption that a properly calculated Guideline range is
reasonable in light of the factors set forth in 18 U.S.C. § 3553(a). See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      We will give an overview of the claims that Jones brings, then turn to the
controlling issue. Jones raises the procedural claim that the district court
violated its obligation to provide its reasons for imposing the sentence. He also
argues that the district court should have considered the sentencing disparity
between crack and powder cocaine in order to fulfill Section 3553(a)’s mandate
to select a sentence that is sufficient, but not greater than necessary, to serve the
purposes articulated in the Guidelines. We interpret Jones’s argument to raise
the claim that the district court’s imposition of a Guidelines sentence instead of

                                         2
                                  No. 07-10606

a non-Guidelines sentence was unreasonable in these circumstances. See United
States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163
(2007) (court has no jurisdiction to review a discretionary decision not to depart
downward, but court may review reasonableness of imposing a within-
Guidelines sentence).
      Because we conclude that Jones is entitled to have his previous sentence
vacated regardless of its former validity, we see no purpose in reviewing whether
the sentence may have been proper at the time it was entered. Instead, we turn
to our reasoning for vacating the sentence.
      In Kimbrough, the district court made a downward departure from the
applicable crack cocaine Sentencing Guidelines range to the statutory minimum
because that minimum sentence was “clearly long enough” to accomplish the
objectives of Section 3553(a). Kimbrough v. United States, 128 S. Ct. 558, 565
(2007). The Supreme Court upheld the district court’s actions, holding that “it
would not be an abuse of discretion for a district court to conclude when
sentencing . . . that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes . . . .” Id. at 575. The Court explained
that the district court had taken the proper steps, including calculating the
advisory Guidelines range, addressing all relevant Section 3553(a) factors, then
evaluating what sentence would be “sufficient, but not greater than necessary”
to meet the sentencing goals of Section 3553(a)(2). Id.
      After Kimbrough, a district court judge sentencing for a crack cocaine
offense should consider the applicable Sentencing Guidelines range and the
policy behind the Guidelines, but may deviate from either or both.            Any
deviations must be justified by the Section 3553(a) factors. United States v.
Gomez-Herrera, 523 F.3d 554, 559(5th Cir. 2008).
      At his sentencing hearing, Jones argued that the disparity between
sentences for crack cocaine and powder cocaine was unjustified. He asked the
district court to do just what the Supreme Court in Kimbrough said could be

                                        3
                                 No. 07-10606

done. We know now that Jones was entitled to have his sentence calculated by
a judge who understood the discretion described in Kimbrough. See United
States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008). Accordingly, we vacate his
sentence. We do not imply that the district court should enter a different
sentence on remand. What is needed is for the district court to analyze the
Section 3553(a) factors in light of Kimbrough.
      Finally, we address the amendments to the Sentencing Guidelines
announced by the Commission. Amendments to the Guidelines which took effect
November 1, 2007, adjust downward by two levels the base offense level for the
quantity of crack. Id. at 861. As of March 3, 2008, these amendments apply
retroactively. Id. Most individuals who were sentenced for offenses affected by
the change to the Guidelines will use the procedure of filing a motion for a
sentence modification under 18 U.S.C. § 3582(c)(2). Jones filed such a motion.
      On March 13, 2008, the district court denied Jones’s Section 3582 motion.
The understandable reason for the denial was that this appeal was pending. For
reasons of judicial efficiency, we note that the district court may combine the
resentencing proceeding on remand with any additional proceedings it may deem
appropriate in light of the amended crack cocaine Sentencing Guidelines. Id. at
861. This is the case even if Jones has not filed a new Section 3582 motion. Id.
      Accordingly, we VACATE Jones’s sentence and REMAND for resentencing
in a manner consistent with this opinion.




                                       4
