                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4923



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


WARREN BLOUNT,

                 Defendant - Appellant.



                             No. 07-4924



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


DONNELL PIERCE, a/k/a Nut,

                 Defendant - Appellant.


Appeals from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:03-cr-00004-MJG)


Submitted:   May 30, 2008                   Decided:    July 3, 2008


Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.


Gary A. Ticknor, Elkridge, Maryland; G Arthur Robbins, CHESAPEAKE
MERIDIAN, Annapolis, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Steven H. Levin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

           Donnell Pierce and Warren Blount appeal their sentences

after the district court conducted resentencing pursuant to our

opinion remanding the cases in light of United States v. Booker,

543 U.S. 220 (2005).         On remand, the district court granted

downward variances and imposed 235-month sentences.

          Pierce and Blount were resentenced approximately three

months before the Supreme Court decided Kimbrough v. United States,

128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586

(2007).   They argue that, although the district court exercised

some of its discretion to impose a downward variance sentence, it

did not exercise its full discretion as announced in Gall and

Kimbrough.      Defendants rely on the comments of the court that it

would be comfortable imposing a lower sentence, but that it was

imposing the lowest sentence “under what is binding to me.”              They

also briefly argue that, after Kimbrough, the district court was

free to reject sentencing factors not based on empirical evidence

or used in a manner inconsistent with the design of the sentencing

guidelines.       The   Government    argues   that   the    complete   record

evidences that the district court was aware of its full discretion,

by   granting    initial   downward    departures,     and    then   downward

variances on resentencing.

           In Gall, the Supreme Court ruled that certain circuit

courts had effectively created “an impermissible presumption of


                                     - 3 -
unreasonableness for sentences outside the Guidelines range” and

improperly applied “a heightened standard of review to sentences

outside the Guidelines range.”        128 S. Ct. at 595-96.       Further,

while an appellate presumption of reasonableness applied to a

within-Guidelines sentence is appropriate, the Supreme Court noted

that a district court “may not presume that the Guidelines range is

reasonable.”    Id. at 596-97.        In addition, in Kimbrough, the

Supreme Court held that a district court may impose a variance

sentence on the basis that, in a given case, the Guidelines range

fails to properly reflect the statutory factors.          128 S. Ct. at

575.

          We agree with the Defendants that the district court may

have understood itself to be barred from imposing a lower variance

sentence based only on its determination that the Guidelines

sentence was too severe.       In light of Kimbrough and Gall, the

district court’s understanding of its authority and discretion may

have been erroneous.     As the Government correctly notes, the

district court was aware that it had some discretion to grant a

downward variance because it granted the variance.          However, the

record is not clear as to whether the court would have granted a

further variance if it had the benefit of Kimbrough and Gall.

          Accordingly, we vacate Pierce and Blounts’ sentences, and

remand   for   resentencing.     We      express   no   opinion   on   the

reasonableness of any particular sentence.         We dispense with oral


                                 - 4 -
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 -
