UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARD WEITERS, JR.,
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-00987-PMD-1)
Submitted: January 13, 2012 Decided: January 24, 2012
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Nick Bianchi, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Weiters, Jr. appeals his convictions by jury
and his subsequent life sentence for possessing a firearm as a
convicted felon, possessing with intent to distribute cocaine
and fifty grams or more of cocaine base, and using and
possessing a firearm in furtherance of a drug trafficking crime.
We affirm his convictions but vacate his sentence and remand for
resentencing.
Weiters first contends that his rights under the Sixth
Amendment’s Confrontation Clause were violated when his counsel
stipulated at trial to drug weights and the chain of custody
pertaining to evidence seized from Weiters’ residence. Although
Weiters points to United States v. Williams, 632 F.3d 129, 132
(4th Cir. 2011), to support his assertion that his counsel could
not waive his confrontation rights, we disagree with Weiters’
assumption that Williams is on all fours with the facts of his
case. Because Weiters’ reliance on Williams is misplaced, we
reject his arguments here.
Weiters next objects to the admission of certain
expert testimony admitted at trial, claiming that the expert
improperly failed to apply his methodology to the facts of the
case before him. This court reviews a district court’s
evidentiary decisions for abuse of discretion. United States v.
Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Our review of the
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record convinces us that no such abuse of discretion occurred
with respect to the challenged testimony, and we accordingly
affirm Weiters’ convictions.
Finally, both Weiters and the Government request that
this case be remanded to the district court to allow Weiters to
be resentenced in accordance with the Fair Sentencing Act of
2010, Pub. L. No. 111–220 (the “FSA”). Based on our
consideration of the materials submitted in this appeal, we
vacate Weiters’ life 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 defendants like Weiters, whose
offense was committed prior to August 3, 2010, the effective
date of the Act, 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
*
We note that at Weiters’ 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.
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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