UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY BALLARD,
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. (7:10-cr-00052-FL-1)
Submitted: September 27, 2011 Decided: October 24, 2011
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Vacated and remanded for resentencing by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.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:
Timothy Ballard appeals his 180-month sentence
received for his conviction in May 2009 for the distribution of
50 grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) (2006). Ballard’s sole contention on
appeal is that, because he was not sentenced until after August
3, 2010, he should have been sentenced under the provisions of
the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat.
2372 (the “FSA”). Although the Government resisted this line of
argument in the district court, it now agrees before this court
that Ballard’s sentence should be vacated and the case remanded
for resentencing.
We, therefore, vacate Ballard’s sentence 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 Ballard whose
offenses were committed prior to August 3, 2010, the effective
date of the FSA, but who was sentenced after that date. We
leave 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 FOR RESENTENCING
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