United States v. Cornelius Smith ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORNELIUS KEITH SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (7:10-cr-00076-FL-1)
Submitted: September 29, 2011 Decided: October 18, 2011
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
J. Merritt Wagoner, SULLIVAN & WAGONER LLP, Wilmington, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Keith Smith appeals his sentence of 327
months’ imprisonment for possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1) (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).
Currently pending before this court is the
Government’s motion to vacate Smith’s sentence in light of
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), and to remand the case to the district court for
resentencing. Smith requests that we grant the Government’s
motion. We grant the motion. Smith brought no challenge to his
conviction in his opening brief. Accordingly, the district
court’s judgment is affirmed as to the conviction, vacated as to
the sentence, and the case is remanded for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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