                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 05-7884



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SHARITA LASHAWN PANKEY,

                Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 06-7975)


Submitted:   March 5, 2008                 Decided:   March 17, 2008


Before WILLIAMS, Chief Judge, and TRAXLER and SHEDD, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


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


Unpublished opinions are not binding precedent in this circuit.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

             Sharita LaShawn Pankey pled guilty to one count of

distribution       of    cocaine    base,      in   violation     of      21    U.S.C.A.

§ 841(a)(1) (West 1999 & Supp. 2007). At sentencing, Pankey argued

that   she   was     eligible      for   a     sentence   below      the   Sentencing

Guidelines because the 100-to-1 crack cocaine to powder cocaine

sentencing disparity was not applicable to her situation.                             The

district     court      believed   it    was    constrained     to     defer     to   the

guidelines and sentenced Pankey to the low end of the properly

calculated    guidelines      range      of    imprisonment.         On    appeal,     we

affirmed her sentence, noting her challenge to the sentencing

disparity was foreclosed by 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, 128 S. Ct. 853 (2008).                       See United

States v. Pankey, No. 05-7884, 2006 WL 2457166 (4th Cir. Aug. 22,

2006) (unpublished). On January 7, 2008, the Supreme Court granted

Pankey’s petition for writ of certiorari, vacated this court’s

judgment and remanded the case for further consideration in light

of Kimbrough v. United States, 128 S. Ct. 558 (2007).                          Pankey v.

United States, 128 S. Ct. 856 (2008).

             The Supreme Court decided in Kimbrough 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


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purposes, even in a mine-run case.”   Kimbrough, 128 S. Ct. at 575.

Kimbrough thus abrogated Eura.    Because Kimbrough relieves the

court of being constrained by the guidelines when considering the

crack/powder disparity, we vacate the sentence and remand for

resentencing.

          Thus, we vacate Pankey’s sentence and remand to the

district court for resentencing in light of Kimbrough. 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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