United States v. James Taylor ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5279
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES JULIUS TAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00039-H-1)
Submitted: August 24, 2011 Decided: August 30, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:
James Julius Taylor pled guilty, pursuant to a written
plea agreement, to possession with intent to distribute fifty
grams or more of cocaine base, 21 U.S.C. § 841(a)(1) (2006)
(Count One), and possession of a firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2006) (Count
Two). Taylor was sentenced to 120 months in prison on Count
One, and sixty months on Count Two. The sentences run
consecutively. Taylor now appeals, contending that the district
court erred when it failed to apply the provisions of the Fair
Sentencing Act of 2010 (FSA) when imposing sentence. The United
States requests that the sentence be vacated and the matter
remanded for resentencing on Count One in conformity with the
FSA.
Based on our consideration of the materials before the
court, we vacate the criminal judgment and remand this 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 Taylor, whose
offenses were committed prior to April 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.
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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.
VACATED AND REMANDED
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