                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4829


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NATHANIEL JOE PASS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00134-RJC-1)


Submitted:   February 23, 2012            Decided:   February 28, 2012


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Angela G. Parrott, Acting Executive Director, Kevin A. Tate,
Assistant Federal Defender, Charlotte, North Carolina, Matthew
R. Segal, Assistant Federal Defender, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray,   Assistant  United   States  Attorney,   Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Nathaniel Joe Pass appeals a criminal judgment entered

pursuant to a jury verdict finding him guilty of possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(b)(1)(B)        (2006).         On    appeal,       Pass    challenges      only    his

sixty-month sentence and the district court’s directive that he

pay $500 towards court appointed attorney fees.                          He first argues

that he should have been sentenced in accordance with the Fair

Sentencing Act of 2010, Pub. L. No. 111–220 (the “FSA”); the

Government agrees with Pass that he should have been sentenced

under the FSA’s ameliorative provisions, but contends that the

district    court’s         failure    to    do    so    was     harmless.     Pass      also

contends    that      the    district       court     erred      in   requiring    that       he

repay a portion of his court-appointed attorneys’ fees in the

absence of specific findings on the record that Pass possessed

the resources to do so.                See United States v. Moore, 666 F.3d

313, 320-24 (4th Cir. 2012).

            As     the      Government’s          current       stance    regarding       the

application      of    the    FSA     could    result      in    the    imposition       of    a

guideline    sentence         rather    than      a     statutory      mandatory   minimum

sentence, we think it prudent that the district court reconsider

Pass’ sentence in light of that view.                            See United States v.

Munn,   595      F.3d        183,      187     (4th       Cir.        2010)   (discussing

ineligibility of defendant sentenced to statutory minimum for

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sentence reduction based on guideline amendments).                        Further, as

the district court lacked the benefit of our decision in Moore

in ordering payment of partial attorney fees, we conclude the

district      court       should   reconsider     that   issue      as    well.     We

therefore        affirm    Pass’    conviction,     vacate    his    sentence,     and

remand for further proceedings consistent with this opinion.                        By

this disposition, however, we indicate no view whether the FSA

is   retroactively         applicable    to   a   defendant     like      Pass,   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 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




      *
       We note that at Pass’ 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 any view as to the
outcome, to accord the district court an opportunity to consider
the matter anew.



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