United States v. Martin , 310 F. App'x 562 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDI MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:06-cr-00197)
Submitted: January 23, 2008 Decided: February 7, 2008
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica L. Dillon, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandi Martin pled guilty to distribution of a quantity
of cocaine base (crack), 21 U.S.C. § 841(a) (2000), and was
sentenced to a term of thirty-seven months imprisonment. Martin
appeals her sentence, challenging on due process grounds the
district court’s decision not to impose a variance sentence below
the advisory guideline range. She also argues that the court erred
in treating the 100:1 ratio for crack and powder cocaine offenses
as a factor that could not justify a sentence outside the guideline
range. In her reply brief, Martin moves for resentencing under 18
U.S.C. § 3582(c)(2) (2000). For the reasons explained below, we
deny the motion but vacate the sentence and remand for
resentencing.
At sentencing, Martin did not dispute the calculation of
her guideline range but, in her argument for a variance, she urged
the district court to consider the Sentencing Commission’s negative
view of the 100:1 ratio for crack and powder cocaine offenses.
Arguing against a variance, the government relied on United States
v. Eura, 440 F.3d 625 (4th Cir. 2006) (holding that 100:1 ratio
could not be used as basis for variance), vacated, ___ S. Ct. ___,
2008 WL 59208 (U.S. Jan. 7, 2008) (No. 05-11659).
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A sentence is reviewed for reasonableness, applying an
abuse of discretion standard.* Gall v. United States, 128 S. Ct.
586, ___, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007) (No. 06-
7949). A sentence within a correctly calculated advisory guideline
range is accorded a rebuttable presumption of reasonableness on
appeal. 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 rebuttable
presumption of reasonableness for within-guideline sentence).
However, after 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 a mine-run case.”
Kimbrough, 128 S. Ct. at ___, 2007 WL 4292040, at *14. Kimbrough
thus abrogated Eura.
Because the district court did not have the benefit of
Kimbrough when it determined Martin’s sentence, we vacate the
sentence and remand the case for resentencing. We express no
opinion as to the reasonableness of a variance sentence. We deny
*
In her plea agreement, Martin waived her right to seek
appellate review of the reasonableness of her sentence. Because
the government has not asserted the waiver as a bar to this appeal,
we do not consider it. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
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Martin’s motion for resentencing under § 3582(c)(2). 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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