                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 05-4437



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


VINCENT CARNELIUS EURA,

                                               Defendant - Appellant.



                               No. 05-4533



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellant,

             versus


VINCENT CARNELIUS EURA,

                                                Defendant - Appellee.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 05-11659)


Submitted:    February 12, 2008               Decided:   March 4, 2008


Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Craig Weston Sampson, Richmond, Virginia, for Appellant/Cross-
Appellee. Paul J. McNulty, United States Attorney, Michael James
Elston, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     This case is before us on remand from the United States

Supreme Court.   The issue presented is whether the district court

abused its discretion when it imposed an eighteen-month downward

variance sentence on Eura’s conviction for possession with intent

to distribute five grams or more of cocaine base (crack), 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B).     Finding no abuse of discretion, we

affirm the district court’s judgment.



                                    I

     On July 19, 2004, Eura was charged in a three-count second

superseding indictment with conspiring to possess with intent to

distribute fifty grams or more of crack, id. §§ 841(b)(1)(A) and

846 (Count One), possession with intent to distribute five grams or

more of crack, id. §§ 841(a)(1) and (b)(1)(B) (Count Two), and

possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C. § 924(c) (Count Three).       Following a jury trial, Eura was

convicted on Counts Two and Three, but acquitted on Count One.        The

jury found that Eura’s conviction on Count Two involved between

five and twenty grams of crack.

     In preparation for sentencing, a Presentence Investigation

Report was prepared by a probation officer, using the November 2004

version of the United States Sentencing Guidelines.           See United

States   Sentencing   Commission,   Guidelines    Manual,   (USSG)   (Nov.


                                - 3 -
2004).       The probation officer concluded that Eura’s offense level

on Count Two was 28, resulting in a Guidelines range of 78 to 97

months’ imprisonment.1

       At the sentencing hearing on April 15, 2005, the district

court noted that the Guidelines range for Count Two under the

Guidelines was 78 to 97 months.             The district court further noted

that there was a sixty-month mandatory minimum sentence on Count

Two and a mandatory sixty-month consecutive sentence on Count

Three.

       The district court then noted that Eura’s sentence needed to

“reflect the seriousness of the offense, to promote respect for law

and to provide just punishment, to afford adequate deterrence to

criminal conduct, to protect the public from further crimes of the

defendant,       and    provide    the     defendant   with    any   corrective

treatment.”       (J.A. 328).      The district court also noted that it

must       consider    pertinent   policy    statements   by   the   Sentencing

Commission.           The   district     court   summarized    the   Sentencing



       1
      The probation officer noted that the jury found that Eura’s
offense involved between five and twenty grams of crack, which
produced a base offense level of 26.     Eura’s offense level was
raised two levels for obstruction of justice.        The probation
officer also noted that Eura’s criminal history category was I. We
note that the November 2007 version of the Guidelines would have
provided a base offense level of 24, USSG § 2D1.1, and reduced
Eura’s Guidelines range to 63 to 78 months. We also note that the
amendment to USSG § 2D1.1 was recently made retroactive. However,
because the sentence imposed was reasonable even using the November
2004 version of the Guidelines, we need not address any issue
related to the November 2007 version of the Guidelines.

                                         - 4 -
Commission’s 1995, 1997, and 2002 reports, all of which recommended

that the 100:1 ratio be narrowed.2       According to the district

court, it was required to consider these reports in “assessing

whether the punishment--whether the sentence promotes respect for

law, provides just punishment, is necessary to provide a deterrence

and to protect the public and is also reflective of the seriousness

of the offense.”   (J.A. 334).    The district court found that, in

view of the Commission’s reports, a sentence within the Guidelines

range would not reflect the seriousness of the offense, promote

respect for the law, or provide just punishment in this case.   The

district court went on to state:

     Considering all the factors, the Court finds in the case
     of Mr. Eura--and I think it is appropriate to note that
     it is appropriate to consider this matter as an


     2
      Prior to the recent amendment to USSG § 2D1.1, a defendant
who dealt five grams of crack faced the same sentence as a
defendant who dealt five hundred grams of powder cocaine. This
disparity is commonly referred to as the “100:1 ratio.” Congress
adopted the 100:1 crack/powder cocaine ratio in 1986, thereby
setting mandatory minimum sentences based on the quantity of
cocaine, in crack or powder form. Congress adopted the 100:1 ratio
in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat.
3207, when it created minimum and maximum terms of imprisonment for
defendants convicted of trafficking in powder cocaine and crack.
For example, 21 U.S.C. § 841(b)(1)(A) sets a mandatory minimum ten
year sentence for those who possess or distribute more than five
kilograms of powder cocaine and for those who possess or distribute
more than fifty grams of crack. Moreover, § 841(b)(1)(B) sets a
mandatory minimum five year sentence for those who possess or
distribute more than five hundred grams of powder cocaine and for
those who possess or distribute more than five grams of crack. In
1995, 1997, and in 2002, Congress declined to entertain the
Sentencing Commission’s entreaties to narrow the ratio, but, with
the November 2007 amendment to USSG § 2D1.1, the ratio has been
narrowed.

                                 - 5 -
      individual matter, not as a                wholesale       objection   or
      acceptance of the guidelines.

      In this instance, this is the kind of case that having
      considered   the   Sentencing    Commission’s   policies
      recommendations, it is the kind of case that the
      guideline does not provide--the crack guideline does not
      provide an appropriate, fair and just punishment, and so
      the Court will not impose a sentence within the
      guidelines in this case.

(J.A.   335-36).      Following      these      remarks,     the    district      court

declined   to   sentence     Eura    on    Count    Two    within     the    advisory

Guidelines range of 78 to 97 months.               Rather, the district court

sentenced Eura to sixty months on Count Two, which was the lowest

possible   sentence     on   Count    Two,      given     the    mandatory    minimum

sentence required for that count.              The district court also imposed

the mandatory consecutive sixty-month sentence on Count Three.                       In

imposing sentence, the district court indicated that it acted

“[p]ursuant to 18 U.S.C. Section 3553(a),” that it had “considered

the   guidelines   as    advisory,”        and     that    the     chosen    sentence

“satisfie[d] the prerequisites of Section 3553(a).”                   (J.A. 337).



                                          II

                                          A

      In Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough

v. United States, 128 S. Ct. 558 (2007), the Supreme Court outlined

the process to be used by a sentencing court in imposing a sentence

and also outlined how an appellate court should review a sentence

imposed by the sentencing court.                 In Gall, the Supreme Court

                                      - 6 -
instructed that the sentencing court should first calculate the

applicable Guidelines range.         128 S. Ct. at 596.             This starting

point furthers Congress’ desire for efficient administration and

nationwide consistency in sentencing.             Id.     After calculating the

Guidelines     range,   the    sentencing        court    must    give   both   the

government and the defendant “an opportunity to argue for whatever

sentence they deem appropriate.”           Id.    The sentencing court should

then consider all of the § 3553(a) factors to determine whether

they support the sentence requested by either party.                  Id. at 596-

97.   In so doing, the sentencing court may not presume that the

Guidelines range is reasonable.             Id. at 597.          In the event the

sentencing court decides to impose a variance sentence, i.e., one

outside the recommended Guidelines range, the sentencing court

“must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of

the variance.”      Id.       As noted by the Gall Court, it is an

“uncontroversial” proposition that a “major departure should be

supported by a more significant justification than a minor one.”

Id.

      The Court in Kimbrough also recognized that a sentencing court

may rely heavily on a single factor at sentencing.                  128 S. Ct. at

575-76.   In that case, the factor at issue was the Sentencing

Commission’s     position     that   the    crack       cocaine/powder    cocaine

sentencing disparity was flawed.           Id.   The Court made it clear that


                                     - 7 -
the   Guidelines   range    was   just   one   of    the   factors     warranting

consideration by the sentencing court, and that the sentencing

court may vary from the Guidelines range based solely on policy

considerations, including a disagreement with the Guidelines.                  Id.

at 570.

      Our appellate review of the reasonableness of a sentence

focuses on whether the sentencing court abused its discretion in

imposing the chosen sentence.       Gall, 128 S. Ct. at 597.           This abuse

of discretion standard of review involves two steps, the first

examines the sentence for significant procedural errors, the second

looks at the substance of the sentence.                    The Court in Gall

explained that “significant” procedural errors include errors such

as “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-including    an    explanation     for     any    deviation    from   the

Guidelines range.”    Id.

      Substantive reasonableness review entails taking into account

the “totality of the circumstances, including the extent of any

variance from the Guidelines range.”                Id.    If the sentence is

within the Guidelines range, we, as an appellate court, may, but

are not required to, presume that the sentence is reasonable.                  Id.

However, if the sentence is outside the Guidelines range, we are


                                    - 8 -
prohibited from applying a presumption of unreasonableness.             Id.

In reviewing the substantive reasonableness of the sentence, we may

consider “the extent of the deviation,” but we “must give due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.”               Id.

Even if we would have reached a different sentencing result on our

own, this fact alone is “insufficient to justify reversal of the

district court.”    Id.

                                   B

     Turning to our review of Eura’s sentence, we initially note

that there are no procedural errors.     The district court correctly

calculated    the   Guidelines   range   to   be    78    to   97   months’

imprisonment. After calculating the Guidelines range, the district

court carefully considered the § 3553(a) factors to determine

whether they supported a variance sentence.              In so doing, the

district court did not presume that the Guidelines range was

reasonable.   Moreover, the district court thoroughly explained its

reasoning supporting the variance sentence.        In short, there being

no procedural errors, we must determine whether the district court

abused its discretion in determining that the § 3553(a) factors

supported a sixty-month sentence on Count Two and justified an

eighteen-month deviation from the Guidelines range.

     The district court’s rationale for varying downward eighteen

months from the low-end of Eura’s Guidelines range is reasonable


                                 - 9 -
and premised on the factors set forth in § 3553(a).   The district

court looked to the § 3553(a) factors and was clearly at liberty to

heavily rely on the Sentencing Commission’s position that the

crack/powder cocaine sentencing disparity was flawed.     Kimbrough,

128 S. Ct. at 575-76.    In view of the district court’s careful

consideration of the § 3553(a) factors, we conclude that the

eighteen-month   downward   variance    was   supported    by   the

justifications necessary to uphold the sentence.



                               III

     For the reasons stated herein, the judgment of the district

court is affirmed.

                                                           AFFIRMED




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