United States v. Roderick Banks , 459 F. App'x 288 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODERICK BANKS, a/k/a Colonel,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00077-F-1)
Submitted: December 13, 2011 Decided: December 22, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On August 2, 2010, Roderick Banks entered a guilty
plea to conspiracy to possess with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). The district court sentenced Banks on
April 11, 2011, to 120 months’ imprisonment. On appeal, Banks
does not challenge his conviction, but contends that the
district court erred when it failed to sentence him pursuant to
the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220,
124 Stat. 2372 (2010) (codified in scattered sections of 21
U.S.C.).
Both Banks and the Government request that the
sentence be vacated and the matter remanded for resentencing in
light of the FSA. Accordingly, we affirm Banks’ conviction, but
we vacate his 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 a defendant like Banks 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 note that at Banks’ sentencing hearing, counsel for the
defendant unsuccessfully argued for retroactive application of
the FSA. Nevertheless, in light of the Attorney General’s
(Continued)
2
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
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.
3