United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 05-4170 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Antonio L. McGee, also known as * Tonio * [UNPUBLISHED] * Appellant. * ___________

Submitted: February 20, 2008 Filed: January 9, 2009 ___________

Before MURPHY, BYE, and MELLOY, Circuit Judges. ___________

PER CURIAM.

Antonio McGee appealed the sentence the district court1 imposed after he pleaded guilty to conspiracy to possess with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846. We affirmed. United States v. McGee, No. 05-4170 (8th Cir. Jan. 8, 2007). The Supreme Court granted certiorari, vacated the judgment of this Court, and remanded for further consideration in light of

1 The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. Kimbrough v. United States, 128 S. Ct. 558 (2007). McGee v. United States, No. 06- 10523 (U.S. Jan. 14, 2008).

Because McGee clearly asked for a below-Guidelines sentence based upon the crack-powder cocaine sentencing disparity and his request was denied because the district court believed it had no authority to so do, we hereby reverse the district court and remand for resentencing in light of Kimbrough. ______________________________

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