UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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    of    cocaine   base,     in    violation   of    21   U.S.C.A.

§   841(a)(1).         He    was   sentenced    to     360   months’    imprisonment.

Everhart appealed, and although we affirmed his convictions, we

remanded for resentencing in light of United States v. Booker, 

(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      sentencing      disparity.       Based     upon   then-

authoritative         Circuit      precedent,    the    district   court      rejected

Everhart’s request for a variance sentence and reimposed a 360-

month term of imprisonment.               We affirmed the district court’s

order.    See United States v. Everhart, 245 F. App’x 316 (4th Cir.

2007) (No. 06-4901), vacated, 

(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.




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United States, 

(2007), and Gall v. United States,

(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.”            Kimbrough, 128 S.

Ct. at 575.       Kimbrough has thus abrogated United States v. Eura,

(4th Cir. 2006) (holding sentencing court may not vary

from       Guidelines   range   solely   because   of   100-to-1   ratio   for

crack/powder offenses), vacated, 

(2008).                    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.

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