UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTINEZ KARON HOLMES, a/k/a Hammer,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00582-PMD-1)
Submitted: September 29, 2011 Decided: October 14, 2011
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jill E. M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for the Appellant. William N. Nettles, United
States Attorney, Alston C. Badger, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Martinez Karon Holmes was
convicted of possession with intent to distribute fifty grams or
more of cocaine base and a quantity of cocaine, in violation of
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)(A)(i) (2006). The district court sentenced
him to 180 months’ imprisonment. On appeal, Holmes does not
challenge his convictions, but contends that the district court
erred when it failed to apply the provisions of the Fair
Sentencing Act of 2010 (FSA) when imposing the sentence. 1
Both Holmes and the Government request that the
sentence be vacated and the matter remanded for resentencing in
light of the FSA. Accordingly, we affirm Holmes’ conviction,
but we vacate his 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 Holmes whose offenses were
committed prior to August 3, 2010, the effective date of the
1
Holmes also argues the new crack to cocaine ratio in the
FSA is unconstitutional. In light of our disposition, we find
it premature to address this issue in this appeal.
2
Act, but who was sentenced after that date. We leave that
determination in the first instance to the district court. 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
2
We note that at Holmes’ October 7, 2010 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
any view as to the outcome, to accord the district court an
opportunity to consider the matter anew.
3