United States v. Bennie Harris , 458 F. App'x 239 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE GERARD HARRIS,
Defendant - Appellant.
No. 11-4691
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DARNELL LONG,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00108-WO-1; 1:10-cr-00108-WO-3)
Submitted: November 22, 2011 Decided: December 15, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael B. Driver, Durham, North Carolina; Mark E. Edwards,
EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellants.
Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bennie Gerard Harris and Richard Darnell Long appeal
the sentences stemming from their convictions for possession
with intent to distribute 132.7 grams of a mixture containing
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) (2006). Their sole assertion on appeal is that they
should have been sentenced in accordance with the Fair
Sentencing Act of 2010, Pub. L. No. 111–220 (the “FSA”), and
they have filed an unopposed motion to remand their cases so
that the district court may do so. Based on our consideration
of the materials submitted in this appeal, we affirm both
Harris’ and Long’s convictions, grant their unopposed motion to
remand, vacate the sentences, and remand these cases 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 Harris and Long,
whose offenses were committed prior to August 3, 2010, the
effective date of the Act, but who were sentenced after that
date. We leave that determination in the first instance to the
district court. * We dispense with oral argument because the
*
We note that at the Defendants’ sentencing hearings,
counsel 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
(Continued)
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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
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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