United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4988

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN O’KEITH BROWN, a/k/a Bo,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

District Judge. (1:07-cr-00030-NCT)

Submitted: February 20, 2008 Decided: March 7, 2008

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Sandra Jane

Hairston, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Brian O’Keith Brown pled guilty to possession with intent

to distribute cocaine base, 21 U.S.C. § 841(a)(1) (2000), and

possession of a firearm during a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A)(I) (2000). He was sentenced to 170 months on the

§ 841(a) conviction and a mandatory consecutive term of 60 months

on the § 924(c) conviction. Brown’s sole argument on appeal, an

objection he preserved below, is that the district court erred in

failing to consider the disparate treatment of cocaine base and

powder cocaine under the U.S. Sentencing Guidelines in fashioning

a sentence under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).

On January 22, 2008, the parties filed in this court a “Joint

Motion For Remand to District Court for Re-Sentencing.”

After Brown’s brief was 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 a mine-run case.” 128 S.

Ct. at 575. Kimbrough thus abrogated this court’s decision in

United States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding

that 100:1 ratio cannot be the basis of a variance), vacated, 128

S. Ct. 853 (2008). Because this case is before us on direct

appeal, Kimbrough applies. See Griffith v. Kentucky, 479 U.S. 314,

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328 (1987) (“[A] new rule for the conduct of criminal prosecutions

is to be applied retroactively to all cases . . . pending on direct

review or not yet final, with no exception for cases in which the

new rule constitutes a ‘clear break’ with the past.”).

A sentence is reviewed for reasonableness, applying an

abuse of discretion standard. Gall v. United States, 128 S. Ct.

586, 597-98 (2007). This court has held that 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 depart or vary below the guideline

range in this case, the district court did not have the benefit of

the Supreme Court’s recent decision in Kimbrough.

Accordingly, we vacate Brown’s sentence and grant the

joint motion to remand for resentencing to give the district court

an opportunity to reconsider the sentence 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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