UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK TERRELL JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00377-FL-1)
Submitted: August 29, 2011 Decided: September 15, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Terrell Jones pled guilty, pursuant to a plea
agreement, to one count of possession of more than five grams of
cocaine base, in violation of 21 U.S.C.A. § 844(a) (West Supp.
2011). The district court sentenced Jones to fifty-one months
in prison, followed by three years of supervised release, and
levied a $100 special assessment. Jones now appeals, contending
that the district court erred when it failed to apply the
provisions of the Fair Sentencing Act of 2010 (FSA) when
imposing the sentence. Both Jones and the Government request
that the sentence be vacated and the matter remanded for
resentencing in conformity with the FSA. Accordingly, we affirm
Jones’s conviction, but we vacate Jones’s sentence and remand
the case to the district court to permit resentencing. By this
disposition, however, we indicate no view as to whether the FSA
is retroactively applicable to a defendant like Jones whose
offenses were committed prior to August 3, 2010, the effective
date of the Act, but who was sentenced after that date. We leave
that determination in the first instance to the district court. *
*
We note that at Jones’s January 21, 2011 sentencing
hearing, counsel for the defendant unsuccessfully argued for
retroactive application of the FSA. Nevertheless, in light of
the Attorney General’s revised view on the retroactivity of the
FSA, as well as the development of case law on this point in
other jurisdictions, we think it appropriate, without indicating
(Continued)
2
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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
any view as to the outcome, to accord the district court an
opportunity to consider the matter anew.
3