US v. Everhart, No. 06-4901 (4th Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 21, 2007.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4901 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY EUGENE EVERHART, Defendant - Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 07-9376) Submitted: July 24, 2008 Decided: August 13, 2008 Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Ricky Eugene Everhart was found guilty of conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2008), and two counts of possession with intent to distribute fifty grams § or more 841(a)(1). of cocaine base, in violation He was sentenced to 360 of months 21 U.S.C.A. imprisonment. Everhart appealed, and although we affirmed his convictions, we remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Everhart, 166 F. App x 61 (4th Cir. 2006) (No. 04-5124). On remand, Everhart argued, in relevant part, that the district court should impose a variance sentence because the Sentencing Guidelines 100-to-1 crack cocaine/powder cocaine ratio created unwarranted authoritative sentencing Circuit disparity. precedent, the Based district upon court then- rejected Everhart s request for a variance sentence and reimposed a 360month term of imprisonment. order. We affirmed the district court s See United States v. Everhart, 245 F. App x 316 (4th Cir. 2007) (No. 06-4901), vacated, 128 S. Ct. 1750 (2008). Everhart filed a petition for writ of certiorari from the United States Supreme Court, which vacated his sentence and remanded his case to this court for further consideration in light of Kimbrough v. - 2 - United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007). In Kimbrough, the Supreme Court held 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 [18 U.S.C.A] § 3553(a) s purposes, even in a mine-run case. Ct. at 575. Kimbrough, 128 S. Kimbrough has thus abrogated United States v. Eura, 440 F.3d 625 (4th Cir. 2006) (holding sentencing court may not vary from Guidelines range solely because of 100-to-1 ratio crack/powder offenses), vacated, 128 S. Ct. 853 (2008). for The district court did not have the benefit of Kimbrough when it determined Everhart s sentence. To give the district court the opportunity to reconsider the sentence in light of Kimbrough, we conclude that resentencing is necessary. We therefore vacate the sentence imposed by the district court and remand for resentencing.* 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 * On remand, Everhart will be resentenced under the revised Guidelines for crack offenses that took effect on November 1, 2007. - 3 -
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