                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4725



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JEVAN ANDERSON,

                                               Defendant - Appellant.


                               No. 06-4849



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellant,

          versus


JEVAN ANDERSON,

                                                Defendant - Appellee.


Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Terrence W. Boyle,
District Judge. (4:97-cr-00034-BO)


Submitted:   August 29, 2007             Decided:   September 12, 2007


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Vacated and remanded by unpublished per curiam opinion.


James B. Craven III, Durham, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, John Stuart Bruce, First Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Jevan Anderson was convicted under 21 U.S.C. § 846 (2000)

for   conspiracy    to    distribute     and   to     possess    with   intent   to

distribute crack cocaine.        Between Anderson’s initial sentence and

now, the Supreme Court handed down its landmark decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.

Booker, 543 U.S. 220 (2005), which both have impacted Anderson’s

sentence.     The   case    is   now   before    us    for   a   fourth   time   on

Anderson’s appeal and the government’s cross-appeal from Anderson's

resentencing following a third remand from this court.                  See United

States v. Anderson, 161 F. App’x 253 (4th Cir. 2006) (No. 04-4972);

United States v. Anderson, 48 F. App’x 450 (4th Cir. 2002) (No. 01-

4318(L)); United States v. Anderson, No. 98-4658, 2000 WL 620308

(4th Cir. May 15, 2000) (unpublished).

            In the appeal immediately preceding the current appeal,

we vacated Anderson’s sentence and remanded for resentencing in

light of Booker.         Upon remand, the district court accepted the

government’s position that Anderson was responsible for sentencing

purposes    for   the    previously     determined      drug     quantities   and,

therefore, his guideline range remained 262 to 327 months in

prison.     However, the court was persuaded by defense counsel’s

arguments that Anderson should receive a sentence comparable to

those of his co-conspirators whose sentences ranged from seventy-

two months to 144 months in prison.            The court decided to impose a


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variance sentence of 144 months and then justified the sentence

primarily based on the disparity between Anderson’s guideline range

and his co-conspirators’ sentences.*                Anderson appealed and the

government cross-appealed.

             Anderson   contends   that       the   district     court   erred    by

finding drug quantity by a preponderance of the evidence.                        The

government     argues   that    the     downward       variance     sentence     is

unreasonable.

           We review the sentence imposed by the district court for

reasonableness.     Booker, 543 U.S. at 261; United States v. Tucker,

473 F.3d 556, 560 (4th Cir. 2007).              It is the district court’s

responsibility “to impose a sentence sufficient, but not greater

than necessary, to comply with the purposes of [18 U.S.C.A.]

§ 3553(a) [(West 2000 & Supp. 2007)].”                Tucker, 473 F.3d at 561

(internal quotation marks and citations omitted).                 If the appeals

court concludes that the sentence achieves this goal, the sentence

may be affirmed as reasonable.          Id.     To this end, the sentencing

court should calculate the guideline range and decide whether a

sentence   within   the   range    serves       the    factors    set    forth   in

§ 3553(a).    Id. at 560.      If not, the court should first determine

whether a guideline departure is warranted.                Id.     If the court


     *
      Although counsel argued that Anderson’s age (fifty-one)
weighed in favor of the variance sentence and the court mentioned
Anderson’s rehabilitation (he had earned all possible good time
credits in prison), the record shows that the primary reason for
the variance was the disparity of the co-conspirators’ sentences.

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finds that a departure is unwarranted or the departure range is

still inadequate, the court may impose a variance sentence. Id. at

560-61.     When reviewing a variance sentence, we consider “whether

the sentencing court acted reasonably both with respect to its

decision to impose such a sentence and with respect to the extent

of the divergence from the sentencing range.”                 United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007) (citations

omitted).

            Turning     first   to    Anderson’s      claim    regarding     drug

quantity, even after Booker, a court may properly make factual

findings concerning sentencing factors by a preponderance of the

evidence.     United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005), cert. denied, 127 S. Ct. 121 (2006).                   We find that the

district     court’s    factual      findings   on    the     drug   quantities

attributable to Anderson were not clearly erroneous. United States

v. Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) (providing

standard).       Accordingly, we conclude that the district court

properly calculated Anderson’s guideline range.

            We   next   address    the   reasonableness       of   the   variance

sentence.        A   post-Booker     sentence   may    be     unreasonable    for

procedural or substantive reasons.

     A sentence may be procedurally unreasonable, for example,
     if the district court provides an inadequate statement of
     reasons or fails to make a necessary factual finding. A
     sentence may be substantively unreasonable if the court
     relies on an improper factor or rejects policies
     articulated by Congress or the Sentencing Commission.

                                      - 5 -
United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).           In this case, we find the variance

sentence to be both procedurally and substantively unreasonable.

              The district court primarily focused on the disparity

between Anderson’s sentence and those of his co-conspirators in

imposing the variance sentence.               Before Booker, this court held

that mere disparity in sentencing among co-defendants was not a

permissible ground for departure under the sentencing guidelines.

United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004); see also

United States v. Ellis, 975 F.2d 1061, 1066 (4th Cir. 1992) (absent

proof of prosecutorial misconduct, “a district court may not depart

downward based on the disparity of sentences among co-defendants.”)

Post-Booker, the now advisory guidelines are one factor considered

along with other sentencing factors set forth in 18 U.S.C.A.

§ 3553(a).         Hughes, 401 F.3d at 546.      One of the § 3553(a) factors

provides that a sentencing court shall consider “the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.”                          18

U.S.C.A. § 3553(a)(6).          However, while it is not impermissible for

a   court     to    consider    co-defendants’     sentences   in     imposing    a

sentence, the disparities to which § 3553(a)(6) refers are those

“unjustified difference[s] across judges (or districts) rather than

among defendants to a single case.”              United States v. Pyles, 482

F.3d   282,    290     (4th    Cir.   2007)   (internal   quotation    marks   and

                                        - 6 -
citations omitted), petition for cert. filed, ___ U.S.L.W. ___(U.S.

July 23, 2007) (No. 07-5497).

               Anderson    and   his   co-conspirators    were    not    similarly

situated because the co-conspirators pled guilty and cooperated

with     the    government       whereas   Anderson      has     never   admitted

responsibility and continues to protest his innocence. By granting

Anderson a variance sentence to give him a prison term commensurate

with those of his co-conspirators, the district court overlooked

the policy of Congress and the Sentencing Commission to treat

defendants who accept responsibility for their actions and who

cooperate with the government differently from those who do not.

United States v. Khan, 461 F.3d 477, 500-01 (4th Cir. 2006), cert.

denied, 127 S. Ct. 2428 (2007); accord United States v. Perez-Pena,

453 F.3d 236, 242 (4th Cir.) (in enacting 18 U.S.C.A. § 3553(e)

(West 2000 & Supp. 2007), Congress indicated its intention that

“sentencing disparities between defendants with similar criminal

conduct and records are warranted to the extent that the Government

determines that a particular defendant has advanced its interest in

prosecuting other offenders”), cert. denied, 127 S. Ct. 542 (2006).

We find that Anderson’s variance sentence, based primarily on

§ 3553(a)(6) without adequate consideration of the other sentencing

factors, is unreasonable.          Moreland, 437 F.3d at 434.

               For these reasons, we vacate Anderson’s sentence and

remand    for    further    proceedings    consistent     with    this   opinion.


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Anderson moved to place these appeals in abeyance pending the

Supreme Court’s decisions in Rita v. United States, 127 S. Ct. 2456

(2007), and Gall v. United States, petition for cert. granted, 127

S. Ct. 2933 (2007).    We deny Anderson’s motion, in part because

Rita has been decided and therefore the abeyance motion is moot as

to this case, and in part because the issues likely to be addressed

in Gall are not dispositive of these appeals.           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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