UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4829
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHANIEL JOE PASS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00134-RJC-1)
Submitted: February 23, 2012 Decided: February 28, 2012
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Angela G. Parrott, Acting Executive Director, Kevin A. Tate,
Assistant Federal Defender, Charlotte, North Carolina, Matthew
R. Segal, Assistant Federal Defender, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Joe Pass appeals a criminal judgment entered
pursuant to a jury verdict finding him guilty of possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(b)(1)(B) (2006). On appeal, Pass challenges only his
sixty-month sentence and the district court’s directive that he
pay $500 towards court appointed attorney fees. He first argues
that he should have been sentenced in accordance with the Fair
Sentencing Act of 2010, Pub. L. No. 111–220 (the “FSA”); the
Government agrees with Pass that he should have been sentenced
under the FSA’s ameliorative provisions, but contends that the
district court’s failure to do so was harmless. Pass also
contends that the district court erred in requiring that he
repay a portion of his court-appointed attorneys’ fees in the
absence of specific findings on the record that Pass possessed
the resources to do so. See United States v. Moore, 666 F.3d
313, 320-24 (4th Cir. 2012).
As the Government’s current stance regarding the
application of the FSA could result in the imposition of a
guideline sentence rather than a statutory mandatory minimum
sentence, we think it prudent that the district court reconsider
Pass’ sentence in light of that view. See United States v.
Munn, 595 F.3d 183, 187 (4th Cir. 2010) (discussing
ineligibility of defendant sentenced to statutory minimum for
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sentence reduction based on guideline amendments). Further, as
the district court lacked the benefit of our decision in Moore
in ordering payment of partial attorney fees, we conclude the
district court should reconsider that issue as well. We
therefore affirm Pass’ conviction, vacate his sentence, and
remand for further proceedings consistent with this opinion. By
this disposition, however, we indicate no view whether the FSA
is retroactively applicable to a defendant like Pass, whose
offense was 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
*
We note that at Pass’ 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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