UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4746

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ROBERT EARL LOWRY, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior 

District Judge. (2:02-cr-00013-F) 

Submitted: April 30, 2009 Decided: May 26, 2009 

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. 

Vacated and remanded by unpublished per curiam opinion. 

Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United 

States Attorneys, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 Robert Earl Lowry appeals the 228-month sentence 

imposed by the district court after his case was remanded for a 

third sentencing hearing. Lowry contends that the district 

court erred by denying him a jury trial to determine the amount 

of crack for which he was responsible; that the evidence was 

insufficient to support a finding of 125.4 grams of crack; and 

that the sentence was unreasonable in light of Kimbrough v. 

United States, 128 S. Ct. 558 (2007), and the 2007 crack 

amendments to the guidelines. Although the first two issues are 

meritless, we vacate Lowry’s sentence and remand for 

resentencing in light of Kimbrough. 

 Appellate review of a sentence is for abuse of 

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); 

see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 

2007). The appeals court must ensure that the district court 

committed no significant procedural error and that the sentence 

is substantively reasonable. Gall, 128 S. Ct. at 597. Here, 

Lowry correctly acknowledges that there is no right to the 

empanelling of a jury to determine relevant conduct for 

sentencing purposes. See United States v. Benkahla, 530 F.3d 

300, 312 (4th Cir. 2008) (“[s]entencing judges may find facts 

relevant to determining a Guidelines range by a preponderance of 

the evidence, so long as that Guidelines sentence is treated as 

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advisory and falls within the statutory maximum authorized by 

the jury’s verdict”), cert. denied, 129 S. Ct. 950 (2009). 

Moreover, the district court’s determination that Lowry was 

responsible for 125.4 grams of crack was not clearly erroneous. 

United States v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004) 

(stating standard of review). The district court reviewed the 

relevant trial testimony. Although the investigator did not 

testify, the record reveals that defense counsel cross-examined 

him concerning the drug amount both at Lowry’s trial and at his 

first sentencing hearing in 2003. 

 After Lowry was sentenced, the crack guidelines were 

amended to lower the offense levels for crack offenses and the 

Supreme Court held, in Kimbrough, that sentencing courts may 

consider the sentencing disparity between crack and cocaine 

offenses in deciding whether to impose a sentence below the 

advisory guideline range. 128 S. Ct. at 564. The 2007 

amendments to the guidelines for crack offenses do not render 

Lowry’s sentence unreasonable. He may seek retroactive 

application of Amendment 706 to his sentence by applying to the 

district court for relief under 18 U.S.C. § 3582(c)(2) (2000). 

See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008) 

(declining to remand for resentencing in order for defendant to 

pursue relief in district court under Amendment 706). 

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 Lowry also contends that his sentence is unreasonable 

because the district court failed to consider the disparity as a 

permissible ground for a sentence below the guideline range. 

The government asserts that this claim must be reviewed for 

plain error because Lowry did not request a variance on this 

ground in the district court. However, we are satisfied that 

Lowry preserved the issue for appeal. In his sentencing 

memorandum, Lowry argued that the crack/cocaine sentencing 

disparity was a factor that justified a sentence below the 

guideline range pursuant to 18 U.S.C. § 3553(a) (2006), and that 

the proposed guideline amendments for crack offenses were 

insufficient to rectify the disparity. Although the court’s 

response at sentencing was not clearly expressed, and defense 

counsel did not argue the issue further, Lowry raised the issue 

with sufficient precision to preserve it for appeal. 

 Because the issue was preserved, the government has 

the burden of showing that the error was harmless. United 

States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006). The 

government has not identified any comment by the district court 

that indicates that it would have imposed the same sentence had 

Kimbrough been decided before Lowry’s sentence was imposed. 

Therefore, Lowry is entitled to another sentencing hearing at 

which the district court may reconsider the sentence in light of 

Kimbrough. 

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 Accordingly, we vacate the sentence imposed by the 

district court, and remand for resentencing 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