UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5237
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN LAMONT KEARNEY, a/k/a Adrian Carlton White, a/k/a
A.D.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:10-cr-00041-BR-1)
Submitted: September 19, 2011 Decided: September 30, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.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. George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:
Adrian Lamont Kearney pled guilty to distribution of
five grams or more of crack cocaine (Count One), and possession
with intent to distribute fifty or more grams of crack cocaine
(Count Two), in violation of 21 U.S.C. § 841(a)(1) (2006). The
district court sentenced Kearney on December 6, 2010, to the
statutorily-mandated minimum sentence of 120 months on Count
Two, to run concurrently with a ninety-seven month sentence on
Count One. Kearney appealed the sentence, arguing that the
district court erred in failing to sentence him in accordance
with the Fair Sentencing Act of 2010 (“FSA”). * The United States
initially opposed resentencing.
On July 22, 2011, the Government filed a supplemental
brief setting forth its revised position on the application of
the FSA. The Government now agrees that Kearney should have
been sentenced pursuant to the FSA because his sentencing
occurred after the Act’s effective date. Thus, the Government
requests a remand for resentencing.
Based on our consideration of the materials submitted,
we vacate the district court’s judgment and remand this case to
the district court to permit resentencing. By this disposition,
*
The Fair Sentencing Act of 2010 increased the threshold
quantities of cocaine base needed to trigger certain mandatory
minimum sentences.
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however, we indicate no view as to whether the FSA is
retroactively applicable to a defendant like Kearney whose
offenses were committed prior to August 3, 2010, the effective
date of the FSA, but who was sentenced after that date, leaving
that determination in the first instance to the district court.
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
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