                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-4042



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DESMOND OLLIVIERRE, a/k/a James Franklin Bridges,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 06-6637)


Submitted:   April 21, 2008                 Decided:   May 16, 2008


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, Kevin F. McDonald, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Desmond Ollivierre was convicted by a jury in 2003 of one

count of possession with intent to distribute crack cocaine and

sentenced     to   225    months    imprisonment.     This    court    affirmed

Ollivierre’s conviction and sentence. United States v. Ollivierre,

378   F.3d   412   (4th    Cir.    2004).    The    Supreme    Court    granted

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

judgment and remanded for further consideration in light of United

States v. Booker, 543 U.S. 220 (2005).             See Ollivierre v. United

States, 543 U.S. 1112 (2005).         We, in turn, remanded the case for

resentencing.      United States v. Ollivierre, No. 03-4802 (4th Cir.

Nov. 22, 2005) (unpublished).

             On remand, the district court resentenced Ollivierre to

210 months imprisonment.           He appealed, challenging the district

court’s refusal to depart from the advisory guidelines range which

took into account the 100:1 crack to powder cocaine ratio.                This

court affirmed on the reasoning of United States v. Eura, 440 F.3d

625 (4th Cir. 2006) (holding that 100:1 ratio cannot be the basis

of a variance), vacated, 128 S. Ct. 853 (2008).              Ollivierre again

filed a petition for writ of certiorari and, again, the Supreme

Court vacated his sentence and remanded to this court for further

consideration in light of Kimbrough v. United States, 128 S. Ct.

558, 564 (2007) (holding that a sentencing judge is free to

consider the disparity between the Guidelines’ treatment of crack


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and   powder    cocaine   offenses   in    determining   whether,     “in    the

particular case, a within-Guidelines sentence is ‘greater than

necessary’ to serve the objectives of sentencing.”                  (citing 18

U.S.C. § 3553(a) (2000)).

              Upon review of the record, we conclude that resentencing

is warranted.        Therefore, we vacate Ollivierre’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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