UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5166

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAJUL RUHBAYAN, a/k/a James Vernette Johnson, a/k/a James

Vernon Wood, a/k/a Jibrael Ruhalamin, a/k/a Jibra’el Ruhalamin, a/k/a Amir Ruhbayan, a/k/a Deja, a/k/a Day-Ja, a/k/a

Kreem, a/k/a Creme,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 07-7811)

Submitted: February 29, 2008 Decided: September 22, 2008

Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit

Judge.

Vacated and remanded by unpublished per curiam opinion.

Joseph Barry McCracken, Norfolk, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, James Ashford Metcalfe,

Assistant United States Attorney, Jonathan Tate Mlinarcik, ThirdYear Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*The district court found that Ruhbayan committed and suborned

perjury in connection with his 2000 trial on a prior federal charge

of conspiracy to distribute crack cocaine. Under the Sentencing

Guidelines, Ruhbayan’s base offense level for perjury and suborning

perjury was six levels below the offense level for the underlying

drug conspiracy offense (up to a maximum level of 30), with the

offense level for the underlying drug conspiracy offense being

premised on the amount of crack cocaine attributed to him. See

U.S.S.G. §§ 2J1.3, 2X3.1, 2D1.1(c).

2

PER CURIAM:

In 2003, Rajul Ruhbayan was convicted by a jury in the Eastern

District of Virginia on four offenses arising from a perjury and

obstruction of justice scheme. Thereafter, in 2004, the district

court sentenced Ruhbayan to life in prison on one offense and to

three concurrent sixty-month sentences on the other three offenses.

We affirmed his convictions but vacated his sentence, remanding for

resentencing pursuant to United States v. Booker, 543 U.S. 220

(2005). See United States v. Ruhbayan, 406 F.3d 292 (4th Cir.

2005).

On remand, in 2005, the district court reimposed the initial

sentence. Ruhbayan appealed, challenging, inter alia, the district

court’s failure to “take into account factors [under 18 U.S.C.

§ 3553(a)] which should have mitigated against the harsh sentence

imposed,” Br. of Appellant 43, including “the need to avoid

inappropriate sentencing disparities” resulting from “the 100-to-1

ratio between powder and crack cocaine,” id. at 47.* Ruhbayan

nevertheless acknowledged our then-controlling decision in United

States v. Eura, 440 F.3d 625 (4th Cir. 2006) (holding that 100:1
3

ratio cannot be the basis of a variance), vacated 128 S. Ct. 853

(2008). We rejected Ruhbayan’s appellate contentions and affirmed

his sentence. See United States v. Ruhbayan, 527 F.3d 107 (4th

Cir. 2007).

Ruhbayan filed a petition for writ of certiorari, and the

Supreme Court vacated the judgment and remanded to this court for

further consideration in light of Kimbrough v. United States, 128

S. Ct. 558, 564 (2007) (holding that a sentencing judge is free to

consider the disparity between the Guidelines’ treatment of crack

and powder cocaine offenses in determining whether, “in the

particular case, a within-Guidelines sentence is ‘greater than

necessary’ to serve the objectives of sentencing” (quoting 18

U.S.C. § 3553(a))). Upon review of the record, we conclude that

resentencing is warranted. Accordingly, we vacate Ruhbayan’s

sentence and remand to the district court 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