                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4761



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DWIGHT MARCEL DEWER,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00476-NCT)


Submitted:   January 24, 2008          Decided:     February 21, 2008


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Terry M. Meinecke, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Dwight Marcel Dewer pled guilty to possession of twenty-

four grams of cocaine base (crack) with intent to distribute,

21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007), and

was sentenced within the advisory guideline range to a term of

seventy months imprisonment.        Dewer appeals his sentence, arguing

that   the   district     court   erred    in   declining    to   consider   the

disparity in sentences for crack and powder cocaine offenses and

the pending guideline amendment intended to reduce the disparity as

grounds for a variance below the guideline range.             For the reasons

explained     below,      we   vacate     the   sentence    and     remand   for

resentencing.

             At the time Dewer 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 basis for variance), vacated, ___ S. Ct. ___, 2008 WL 59208

(U.S. Jan. 7, 2008) (No. 05-11659). Since the parties’ briefs were

filed, the Supreme Court decided, in Kimbrough v. United States,

128 S. Ct. 558 (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


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a mine-run case.”     Kimbrough, 128 S. Ct. at 575.         Kimbrough thus

abrogated Eura.

          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 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   and   remand   for

resentencing   in   light    of   Kimbrough.     On   remand,   the   amended

guidelines for crack offenses, effective November 1, 2007, will be

applicable.    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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