                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4725


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTHUR SHABAZZ SANDERS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:06-cr-00285-F-4)


Submitted:   September 30, 2011            Decided:   October 13, 2011


Before SHEDD and    AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Mark R. Sigmon, GRAEBE HANNA & WELBORN PLLC, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Jennifer E. Wells, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Arthur Shabazz Sanders pled guilty to conspiracy to

possess with intent to distribute and to distribute cocaine and

more     than       fifty    grams        of    cocaine            base        (“crack”)       and     was

sentenced to 262 months of imprisonment.                                       On appeal, counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting there are no meritorious grounds for appeal,

but    raising       the    following          issue:         whether          the    district       court

erred by denying Sanders’ motions to withdraw his guilty plea.

For the reasons that follow, we affirm in part, vacate in part,

and remand.

               We    do     not    find    that         the    district          court       abused    its

discretion by denying Sanders’ motions to withdraw his guilty

plea.     United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.

2000).     A defendant bears the burden of demonstrating to the

district    court’s          satisfaction           that       a    “fair        and    just      reason”

supports    his       request       to    withdraw.                Fed.    R.        Crim.   P.   11(h).

Although we have articulated certain factors a district court

should    consider          in    determining           whether       to       grant     a    motion    to

withdraw, see United States v. Moore, 931 F.2d 245, 248 (4th

Cir. 1991) (providing factors), the key to determining whether a

motion    to     withdraw         should       be       granted,          is    whether       the      plea

hearing    was       properly       conducted            under       Fed.       R.     Crim.      P.   11.

United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).

                                                    2
Our review of Sanders’ plea hearing reveals the district court

complied with Rule 11.            Therefore we find that Sanders’ claim of

error is without merit.

             Next, Sanders argues, in his Fed. R. App. P. 28(j)

filing, that he should not been considered a career offender,

under U.S. Sentencing Guidelines Manual § 4B1.1 (2008), in light

of our recent opinion in United States v. Simmons, 649 F.3d 237,

__, 2011 WL 3607266 (4th Cir. 2011).                    The Government also seeks

resentencing        in    light    of    Simmons.           Accordingly,      we    vacate

Sanders’ sentence and remand for resentening.                          We do not find,

however,     that    Sanders       is    entitled      to     relief   under       Simmons,

leaving     that     decision      to    the       district    court     in   the    first

instance.

             In accordance with Anders, we have reviewed the record

in this case, including the issues raised in Sanders’ pro se

supplemental brief, and have found no meritorious issues for

appeal.      We therefore affirm Sanders’ conviction, vacate his

sentence, and remand for resentencing.                      This court requires that

counsel inform Sanders, in writing, of the right to petition the

Supreme     Court    of    the    United    States      for    further    review.       If

Sanders requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in   this    court       for     leave    to       withdraw    from    representation.



                                               3
Counsel’s motion must state that a copy thereof was served on

Sanders.

            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




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