United States v. Tunstalle , 266 F. App'x 291 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY TUNSTALLE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00014-01)
Submitted: January 30, 2008 Decided: February 22, 2008
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Miller A. Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Tunstalle pled guilty to one count of distributing
cocaine base (crack), 21 U.S.C. § 841(a)(1) (2000), and was
sentenced to a term of fifty-five months imprisonment. Tunstalle
appeals his sentence, contending that the district court erred in
not considering the inherent inequity of the 100:1 ratio for crack
offenses and powder cocaine offenses as the basis for a variance in
his case, and that his sentence is consequently unreasonable. We
vacate the sentence and remand for resentencing.*
At sentencing, Tunstalle requested a variance on the
ground described, but acknowledged our decision in United States v.
Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding that 100:1 ratio
may not be used as basis for variance), vacated, 128 S. Ct. 853(2008). The district court declined to impose a variance sentence.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007). 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
*
In his plea agreement, Tunstalle waived his right to appeal
the reasonableness of any sentence within the guideline range.
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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presumption of reasonableness for within-guidelines 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 575. Kimbrough thus abrogated Eura.
Because the district court did not have the benefit of
Kimbrough when it determined Tunstalle’s sentence, we vacate the
sentence and remand for resentencing in light of Kimbrough. On
remand, the amended guidelines for crack offenses, effective
November 1, 2007, will apply. 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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