                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4692



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


CLEVELAND JORDAN, JR.,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00033-RBS)


Submitted:     February 22, 2008            Decided:   March 4, 2008


Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant.   Chuck Rosenberg, United States Attorney, Richard D.
Cooke, William D. Muhr, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Cleveland Jordan, Jr., pled guilty to three counts of

possession    of   crack   with    intent    to   distribute,   21   U.S.C.A.

§ 841(a), (b)(1)(B) (West 1999 & Supp. 2007), and was sentenced at

the bottom of the advisory guideline range to a term of 108 months

imprisonment.      Jordan appeals his sentence, arguing that the

district court erred in declining to consider the disparity in

sentences for crack and powder cocaine offenses, applied the wrong

legal standard in determining his sentence, and imposed a sentence

greater than necessary to fulfill the purposes of sentencing.            For

the reasons explained below, we vacate the sentence and remand for

resentencing.

          When Jordan was sentenced, our circuit precedent did not

permit the sentencing court to impose a variance sentence based on

the disparity in sentences prescribed under the guidelines for

crack and powder cocaine offenses.           See United States v. Eura, 440

F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio could not

be used as basis for variance), vacated, 128 S. Ct. 853 (2008).

Since then, the Supreme Court decided, in Kimbrough v. United

States, 128 S. Ct. 558, 575 (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 thus abrogated Eura.


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     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 presumptively reasonable.             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 presumption of reasonableness for within-

guidelines sentence).      However, in deciding not to depart or vary

below the guideline range in this case, the district court did not

have the benefit of the Supreme Court’s decision in Kimbrough.          To

give the district court an opportunity to reconsider the sentence

in light of Kimbrough, we conclude that resentencing is necessary.

            We therefore vacate the sentence imposed by the district

court.    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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