U.S. v. HERDER

No. 08-4420.

594 F.3d 352 (2010)

UNITED STATES of America, Plaintiff-Appellee, v. Kinsey Cory HERDER, Defendant-Appellant.

United States Court of Appeals, Fourth Circuit.

Decided: February 11, 2010.


Attorney(s) appearing for the Case

ARGUED: Geremy C. Kamens, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. David Brian Goodhand, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Richard H. McWilliams, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Jeanine Linehan, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Affirmed in part, vacated in part, and remanded by published opinion. Judge DAVIS wrote the majority opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a separate opinion concurring in part and dissenting in part.


OPINION

DAVIS, Circuit Judge:

Kinsey Cory Herder ("Herder") appeals his conviction and sentence following a jury trial on one count of possession with the intent to distribute five grams or more of crack cocaine and one count of possession with the intent to distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Herder to 41 months' imprisonment—a sentence at the bottom of the applicable Sentencing Guidelines...

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