                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4859


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL LAMONT BOOMER,

                Defendant - Appellant.



                            No. 09-7412


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL LAMONT BOOMER,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:04-cr-00089-HEH-1)


Submitted:   October 29, 2010            Decided:   November 19, 2010


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.


Mark Bodner, Fairfax, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Angela Mastandrea-Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Michael         Lamont       Boomer             appeals        from      the      district

court’s        orders     imposing          a    new           sentence         after       granting    28

U.S.C.A. § 2255 (West Supp. 2010) relief and Boomer’s motion for

a   sentence        reduction        under       18       U.S.C.         § 3582(c)          (2006).     We

vacate the orders and remand for resentencing consistent with

this opinion.

               On    appeal,         Boomer      contends              that     the    district       court

erred     in     failing        to     consider            his         request        for    a   sentence

reduction based on the sentencing disparity between crack and

powder cocaine when imposing sentence.                                  The district court does

not err if, when sentencing a defendant, it concludes “that the

crack/powder          disparity          yields                a       sentence        ‘greater        than

necessary’          to    achieve           [18           U.S.C.]         § 3553(a)’s            [(2006)]

purposes.”          Kimbrough v. United States, 552 U.S. 85, 110 (2007).

Rather,    under         the    advisory          Sentencing              Guidelines,            “district

courts are entitled to reject and vary categorically from the

crack-cocaine         Guidelines        based             on       a   policy    disagreement          with

those Guidelines.”              Spears v. United States, ___ U.S. ___, 129

S. Ct. 840, 843-44 (2009).                      The district court is not required

to apply a one-to-one ratio; Spears merely permits a district

court     to     substitute           its       own       ratio          if   it       determines      the

sentencing disparity is unwarranted.




                                                      3
              We review a sentence for reasonableness under an abuse

of discretion standard.               Gall v. United States, 552 U.S. 38, 51

(2007).       This review requires appellate consideration of both

the   procedural        and    substantive          reasonableness        of    a     sentence.

Id.       Procedural      reasonableness             is     determined         by     reviewing

whether the district court properly calculated the defendant’s

advisory      Guidelines       range      and   then      considered       the       18    U.S.C.

§ 3553(a)      factors,        analyzed       any     arguments         presented         by    the

parties, and sufficiently explained the selected sentence.                                      Id.

at 49-51.        “Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the     record     an     ‘individualized             assessment’         based           on    the

particular       facts   of     the    case     before      it.”        United       States      v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

              Here, the district court did not explicitly address

Boomer’s      sentencing       disparity        argument.          In    fact,       the       court

stated that “the crack disparity will be considered with respect

to the motion under 3582(c).”                   Although it is possible that the

court recognized its discretion to vary downward and decided

that the two-level reduction in the upcoming 3582(c) proceeding

would    be    sufficient,          the    record      is    silent       on    the       court’s

reasoning on this issue.

              We   conclude         that      the     record       is    insufficient            to

determine      whether        the   district        court    knew       that    it     had      the


                                                4
discretion to consider the sentencing disparity and, if so, what

its   reasoning       was    in        deciding       to     decline       to    exercise      its

discretion.        We therefore vacate the sentencing and § 3582(c)

orders and remand the sentence for the district court to address

Boomer’s      sentencing      disparity          argument.            We    note        that   the

district      court    may    then        need       to    revise     its       decision       when

reentering its order regarding the § 3582(c) motion.                                    However,

we    do    not   express         an    opinion       on     the    merits        of     Boomer’s

sentencing disparity argument or the resolution of the § 3582(c)

motion.

              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




                                                 5
