UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN EDWARD RIVERS,
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-01093-PMD-1)
Submitted: September 29, 2011 Decided: November 3, 2011
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Cameron J. Blazer, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Matthew J. Modica, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On October 25, 2010, Brian Edward Rivers pleaded
guilty, pursuant to a plea agreement, to possession with intent
to distribute five or more grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006), and use and carry of
a firearm during and in relation to, and possession in
furtherance of, a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (2006). The charged criminal conduct
occurred on or about July 10, 2009. The district court
sentenced Rivers on February 15, 2011, to a cumulative term of
120 months in prison.
Rivers now appeals, claiming that the district court
erred when it failed to apply the provisions of the Fair
Sentencing Act of 2010 (FSA) in imposing his sentence. The
Government has filed a motion, with the consent of Rivers, to
remand to the district court for resentencing in accordance with
the amendments wrought by the FSA. We grant the motion and
accordingly vacate Rivers’ sentence and remand the case to the
district court to permit resentencing.
By this disposition, however, we do not indicate a
view as to whether the FSA is applicable to a defendant such as
Rivers, whose offense conduct occurred before the August 3, 2010
enactment of the FSA, but who was sentenced after that date. We
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leave that determination in the first instance to the district
court. ∗
VACATED IN PART
AND REMANDED
∗
We note that at Rivers’ sentencing hearing, counsel for
the defendant unsuccessfully argued for 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.
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