Reversed by Supreme Court, December 10, 2007



                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4554



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

          versus


DERRICK KIMBROUGH,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-04-185)


Submitted:    November 15, 2005               Decided:   May 9, 2006


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for
Appellant.    Frank W. Dunham, Jr., Federal Public Defender,
Alexandria, Virginia; Riley H. Ross, III, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia;
Frances H. Pratt, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

        The Government appeals the district court’s imposition of a

sentence outside of the United States Sentencing Guidelines range

based, in part, on the district court’s disagreement with the

disparity          between   sentences       for    crack    and     powder    cocaine

violations.         We have jurisdiction to review the sentence pursuant

to 18 U.S.C.A. § 3742 (West 2000). We review post-Booker sentences

for reasonableness.          United States v. Hughes, 

, 546-47

(4th Cir. 2005).

     Derrick Kimbrough pleaded guilty to distributing fifty or more

grams    of    crack     cocaine,    distributing         cocaine,    conspiring    to

distribute fifty grams or more of crack cocaine, and possessing a

firearm       in    connection   with    a       drug   trafficking    crime.       The

sentencing guideline range was 168 to 210 months imprisonment for

the drug counts and 60 consecutive months for the firearm count.

Based, in part, on the district court’s disagreement with the

sentencing disparity for crack and powder cocaine violations, the

district court sentenced Kimbrough to 120 months on each of the

three drug violations, to be served concurrently, and sixty months

on the firearms charge, to be served consecutively.                     According to

our recent decision in United States v. Eura, 

(4th

Cir. 2006), a sentence that is outside the guidelines range is per

se unreasonable when it is based on a disagreement with the

sentencing         disparity   for   crack        and   powder   cocaine      offenses.


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Because the district court concluded that the crack to powder

cocaine   disparity   warranted   a       sentence    below   the   applicable

sentencing   guideline   range,       we    are      constrained    to   vacate

Kimbrough’s sentence and to remand the case 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 in the decisional process.



                                                        VACATED AND REMANDED




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