                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4120


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DERRICK TERRELL JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:09-cr-00377-FL-1)


Submitted:   August 29, 2011             Decided:   September 15, 2011


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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.   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Unpublished opinions are not binding precedent in this circuit.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:

                 Derrick Terrell Jones pled guilty, pursuant to a plea

agreement, to one count of possession of more than five grams of

cocaine base, in violation of 21 U.S.C.A. § 844(a) (West Supp.

2011).       The district court sentenced Jones to fifty-one months

in prison, followed by three years of supervised release, and

levied a $100 special assessment.                   Jones 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 the sentence. Both Jones and the Government request

that       the   sentence    be   vacated       and    the    matter      remanded    for

resentencing in conformity with the FSA.                     Accordingly, we affirm

Jones’s conviction, but we vacate Jones’s 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    Jones     whose

offenses were committed prior to August 3, 2010, the effective

date of the Act, but who was sentenced after that date. We leave

that determination in the first instance to the district court. *



       *
       We note that at Jones’s January 21, 2011 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
(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




any view as to the outcome, to accord the district court an
opportunity to consider the matter anew.



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