UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOPHIA OLYMPIA DUNLAP,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00428-WO-1)
Submitted: September 29, 2011 Decided: October 26, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sophia Olympia Dunlap appeals her conviction and 151-
month sentence imposed after she pled guilty to distributing
46.2 grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). Counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal but asking us to review the
reasonableness of Dunlap’s sentence. Dunlap filed a pro se
supplemental brief arguing that she was erroneously sentenced as
a career offender and that she should be resentenced in light of
the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220,
124 Stat. 2372. Following our decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Dunlap filed an
unopposed motion to remand the case for resentencing. We affirm
in part, vacate in part, and remand for further proceedings.
Based on her prior North Carolina convictions, the
district court sentenced Dunlap as a career offender. However,
it is now clear that her convictions were not punishable by
imprisonment for a term exceeding one year. See N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009) (setting minimum and maximum
sentences applicable under North Carolina’s structured
2
sentencing scheme). 1 When Dunlap argued in the district court
that her convictions could not serve as predicate offenses for
the purposes of career offender status, the argument was
foreclosed by our decision in United States v. Harp, 406 F.3d
242 (4th Cir. 2005). Subsequently, however, we overruled Harp
with our en banc decision in Simmons, in which we sustained a
similar argument in favor of the defendant. In view of our
holding in Simmons, we grant the motion to remand, vacate
Dunlap’s sentence, and remand for further proceedings. 2
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues.
Accordingly, we affirm Dunlap’s conviction, vacate her sentence,
and remand for resentencing in light of Simmons.
This court requires that counsel inform Dunlap, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Dunlap requests that a
petition be filed, but counsel believes that such a petition
1
The statute was subsequently amended, but the amendments
do not affect Dunlap’s appeal.
2
Dunlap, however, is not entitled to relief on the basis of
the FSA, which we recently held does not apply retroactively to
defendants, like Dunlap, who were sentenced before its August 3,
2010 effective date. United States v. Bullard, 645 F.3d 237,
248 (4th Cir. 2011), cert. denied, __ U.S.__, 2011 WL 4536465
(U.S. Oct. 3, 2011) (No. 09-5214). We leave for the district
court to determine in the first instance whether the FSA should
be applied to Dunlap upon resentencing.
3
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 Dunlap.
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
4