UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4752

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANDRE TIAWAN BRITT,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr., Chief

District Judge. (1:03-cr-00184-JAB)

Submitted: January 23, 2008 Decided: February 25, 2008

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Eric D. Placke,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.

Boggs, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Andre Tiawan Britt was convicted of possession of a

firearm in commerce after being convicted of a felony (Count One),

possession with intent to distribute cocaine base “crack” (Count

Two), possession of a firearm during a drug trafficking crime

(Count Three), maintaining a place for manufacturing, distributing

and using crack and marijuana (Count Four), and possession of a

firearm and ammunition in commerce after a felony conviction (Count

Eight). In 2004, the court sentenced Britt to 103-month concurrent

sentences for Counts One, Two, Four and Eight, and a 60-month

sentence for Count Three to be served consecutively to Count One,

for a total of 163 months of imprisonment. This court affirmed

Britt’s convictions but remanded for resentencing in light of

Booker. See United States v. Britt, No. 04-4313 (4th Cir. Feb. 13,

2007) (unpublished).

On remand, Britt specifically noted the then-pending

amendments to the Sentencing Guidelines, which would lower the

punishment for amounts of crack cocaine, and argued that the

district court should impose a lower sentence based on the proposed

amendments. He also noted the sentencing disparity between crack

and powder cocaine and cited to the Supreme Court’s then—pending

case raising this issue in Kimbrough v. United States, 128 S. Ct.

558 (2007). The district court denied relief on these arguments,

based on Circuit precedent, United States v. Eura, 440 F.3d 625,
*

We offer no criticism of the district court, which followed

the relevant Circuit precedent in resentencing Britt.

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632-34 (4th Cir. 2006). Based on the amended presentence report,

Britt’s advisory sentencing range was calculated as 78-97 months,

and the district court sentenced Britt to 78 months of imprisonment

for Counts One, Two, Four, and Eight and a 60-month consecutive

sentence for Count Three. 

Britt timely appeals, alleging that the district court 

erred by declining to consider, under 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007), the crack cocaine/powder cocaine sentencing

disparity, and the then-pending Sentencing Guidelines amendments

intended to partially address that disparity. For the reasons that

follow, we vacate and remand for resentencing.*

 

Since Britt’s resentencing, our opinion in Eura has been

abrogated by Kimbrough. See 128 S. Ct. at 565-66 & n.4. Moreover,

the proposed amendments, lowering the punishment for amounts of

crack cocaine, are reflected in the 2007 version of the Sentencing

Guidelines. 

Accordingly, we vacate the sentence and remand for the

district court to resentence Britt in light of Kimbrough and

consider any other issues the parties may raise. 
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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