                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5174


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRAD VENSON WILSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Henry F. Floyd, District Judge.
(8:09-cr-01209-HFF-1)


Submitted:   September 27, 2011           Decided:   October 5, 2011


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.     Leesa Washington, Assistant
United   States  Attorney,  Greenville,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Brad    Venson       Wilson    pled      guilty   to    possession          with

intent to distribute fifty or more grams of crack cocaine, 21

U.S.C.   §      841(a)(1)     (2006),       and   possession         of    a   firearm         in

furtherance      of    a    drug   trafficking         crime,   in    violation          of    18

U.S.C. § 924(c)(1) (2006).                  Counsel filed a brief pursuant to

Anders   v.     California,        386   U.S.     738    (1967)      averring       that       no

meritorious issues for appeal exist, but asking the court to

review whether the district court complied with Fed. R. Crim. P.

11 in the plea colloquy and whether plain error occurred at

sentencing.          Wilson filed a supplemental pro se brief arguing

that he should have been sentenced under the Fair Sentencing Act

of 2010 1 (the FSA) and raising an additional claim of error at

sentencing. 2        Subsequently, the United States filed an unopposed

motion     to    remand      for    resentencing,         setting         forth    its        new

position      that    the    FSA    applies       to    all   defendants          who,    like

Wilson, were sentenced after its August 3, 2010 effective date.




     1
       The Fair Sentencing Act of 2010 increased the threshold
quantities of cocaine base needed to trigger certain mandatory
minimum sentences.
     2
       We find to be without merit Wilson’s claim that the
district court erred by including in his criminal history score
convictions for which Wilson paid a fine rather than face
imprisonment.   The district court correctly calculated Wilson’s
criminal history category.



                                             2
              We      affirm       Wilson’s       conviction.            Based     on     our

consideration of the materials submitted, we grant the motion to

remand, 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     Wilson       whose

offenses were committed prior to the effective date of the Act,

but     who     was      sentenced        after      that      date,      leaving        that

determination in the first instance to the district court.

              In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal.       This     court      requires    that      counsel    inform       Wilson,    in

writing,      of   the     right    to    petition      the    Supreme    Court     of    the

United States for further review.                       If Wilson 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.                         Counsel’s motion must

state that a copy thereof was served on Wilson.

              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

                                              3
