                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-4746


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ROBERT EARL LOWRY,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (2:02-cr-00013-F)


Submitted:    April 30, 2009                 Decided:   May 26, 2009


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Robert    Earl       Lowry        appeals        the    228-month             sentence

imposed by the district court after his case was remanded for a

third    sentencing       hearing.          Lowry         contends         that       the    district

court erred by denying him a jury trial to determine the amount

of crack for which he was responsible; that the evidence was

insufficient to support a finding of 125.4 grams of crack; and

that    the    sentence       was    unreasonable          in    light          of    Kimbrough         v.

United    States,       128    S.     Ct.    558         (2007),      and       the        2007    crack

amendments to the guidelines.                    Although the first two issues are

meritless,       we     vacate         Lowry’s            sentence         and         remand          for

resentencing in light of Kimbrough.

               Appellate       review       of       a    sentence         is        for    abuse       of

discretion.       Gall v. United States, 128 S. Ct. 586, 597 (2007);

see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).        The appeals court must ensure that the district court

committed no significant procedural error and that the sentence

is substantively reasonable.                     Gall, 128 S. Ct. at 597.                          Here,

Lowry    correctly      acknowledges             that     there       is    no       right        to   the

empanelling       of    a     jury     to     determine            relevant           conduct          for

sentencing purposes.                See United States v. Benkahla, 530 F.3d

300, 312 (4th Cir. 2008) (“[s]entencing judges may find facts

relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

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advisory and falls within the statutory maximum authorized by

the   jury’s     verdict”),     cert.    denied,          129       S.   Ct.    950   (2009).

Moreover,      the   district     court’s      determination              that    Lowry    was

responsible for 125.4 grams of crack was not clearly erroneous.

United States v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004)

(stating standard of review).               The district court reviewed the

relevant trial testimony.               Although the investigator did not

testify, the record reveals that defense counsel cross-examined

him concerning the drug amount both at Lowry’s trial and at his

first sentencing hearing in 2003.

            After Lowry was sentenced, the crack guidelines were

amended to lower the offense levels for crack offenses and the

Supreme Court held, in Kimbrough, that sentencing courts may

consider    the      sentencing    disparity      between            crack      and   cocaine

offenses    in    deciding    whether     to   impose           a    sentence     below    the

advisory    guideline      range.        128    S.    Ct.           at   564.      The    2007

amendments to the guidelines for crack offenses do not render

Lowry’s     sentence      unreasonable.              He     may          seek    retroactive

application of Amendment 706 to his sentence by applying to the

district court for relief under 18 U.S.C. § 3582(c)(2) (2000).

See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008)

(declining to remand for resentencing in order for defendant to

pursue relief in district court under Amendment 706).



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            Lowry also contends that his sentence is unreasonable

because the district court failed to consider the disparity as a

permissible ground for a sentence below the guideline range.

The   government       asserts      that    this    claim       must      be    reviewed       for

plain error because Lowry did not request a variance on this

ground in the district court.                    However, we are satisfied that

Lowry    preserved         the   issue     for     appeal.           In    his     sentencing

memorandum,        Lowry     argued      that      the    crack/cocaine            sentencing

disparity      was    a    factor    that    justified         a     sentence         below   the

guideline range pursuant to 18 U.S.C. § 3553(a) (2006), and that

the     proposed      guideline       amendments         for       crack       offenses       were

insufficient to rectify the disparity.                             Although the court’s

response at sentencing was not clearly expressed, and defense

counsel did not argue the issue further, Lowry raised the issue

with sufficient precision to preserve it for appeal.

            Because the issue was preserved, the government has

the   burden    of    showing       that    the    error       was    harmless.           United

States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006).                                        The

government has not identified any comment by the district court

that indicates that it would have imposed the same sentence had

Kimbrough      been       decided   before       Lowry’s       sentence         was    imposed.

Therefore, Lowry is entitled to another sentencing hearing at

which the district court may reconsider the sentence in light of

Kimbrough.

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            Accordingly,      we   vacate    the    sentence     imposed   by   the

district     court,    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




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