                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 07-4725



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


WILLIAM HOWARD HARGROVE,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-cr-00226-D)


Submitted:     March 26, 2008                 Decided:   April 11, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           William     Howard   Hargrove   pled    guilty   without   a   plea

agreement to two counts of possession with intent to distribute

five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1)(2000), and one count of unlawful possession of a

firearm by a felon, in violation of 18 U.S.C. § 922(g) (2000).

Hargrove appeals his sentence, contending that the district court

erred in not considering the inherent inequity of the 100:1 ratio

for crack and powder cocaine offenses as the basis for a variance

in his case, and that his sentence is consequently unreasonable.

We vacate Hargrove’s sentence and remand for resentencing.

           At sentencing, Hargrove requested a variance based on the

sentencing disparity for crack and powder cocaine offenses, but

acknowledged our decision in United States v. Kimbrough, 174 F.

App’x 798 (4th Cir. 2006) (No. 05-4554) (unpublished) (vacating

sentence because the district court deviated from the Guidelines

range based on the sentencing disparity for crack and powder

cocaine   offenses).      The   district   court    declined   to   impose   a

variance sentence, explicitly relying on United States v. Eura, 440

F.3d 625, 634 (4th Cir. 2006) (holding that the 100:1 ratio may not

be used as a basis for a variance sentence).                After Hargrove’s

brief was filed, however, the Supreme Court reversed this court’s

Kimbrough decision and held that “it would not be an abuse of

discretion for a district court to conclude when sentencing a


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particular defendant that the crack/powder disparity yields a

sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes,

even in a mine-run case.”        Kimbrough v. United States, 128 S. Ct.

558, 575 (2007).    As acknowledged by the Government, the district

court did not have the benefit of the Supreme Court’s Kimbrough

decision in deciding not to vary below Hargrove’s Guidelines range.

          Accordingly, we vacate Hargrove’s sentence and remand 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




     *
      On remand, the amended Guidelines for crack cocaine offenses,
effective November 1, 2007, will apply.

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