UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRAD VENSON WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:09-cr-01209-HFF-1)
Submitted: September 27, 2011 Decided: October 5, 2011
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Leesa Washington, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brad Venson Wilson pled guilty to possession with
intent to distribute fifty or more grams of crack cocaine, 21
U.S.C. § 841(a)(1) (2006), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (2006). Counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967) averring that no
meritorious issues for appeal exist, but asking the court to
review whether the district court complied with Fed. R. Crim. P.
11 in the plea colloquy and whether plain error occurred at
sentencing. Wilson filed a supplemental pro se brief arguing
that he should have been sentenced under the Fair Sentencing Act
of 2010 1 (the FSA) and raising an additional claim of error at
sentencing. 2 Subsequently, the United States filed an unopposed
motion to remand for resentencing, setting forth its new
position that the FSA applies to all defendants who, like
Wilson, were sentenced after its August 3, 2010 effective date.
1
The Fair Sentencing Act of 2010 increased the threshold
quantities of cocaine base needed to trigger certain mandatory
minimum sentences.
2
We find to be without merit Wilson’s claim that the
district court erred by including in his criminal history score
convictions for which Wilson paid a fine rather than face
imprisonment. The district court correctly calculated Wilson’s
criminal history category.
2
We affirm Wilson’s conviction. Based on our
consideration of the materials submitted, we grant the motion to
remand, vacate the criminal judgment, and remand this 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 Wilson whose
offenses were committed prior to the effective date of the Act,
but who was sentenced after that date, leaving that
determination in the first instance to the district court.
In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
appeal. This court requires that counsel inform Wilson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wilson requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Wilson.
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
3