                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4456


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RODERICK BANKS, a/k/a Colonel,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00077-F-1)


Submitted:   December 13, 2011            Decided:   December 22, 2011


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, 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Unpublished opinions are not binding precedent in this circuit.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:

                 On August 2, 2010, Roderick Banks entered a guilty

plea to conspiracy to possess with intent to distribute fifty

grams      or    more     of    cocaine      base,      in    violation       of   21   U.S.C.

§§ 841(a)(1), 846 (2006).                  The district court sentenced Banks on

April 11, 2011, to 120 months’ imprisonment.                             On appeal, Banks

does       not    challenge         his    conviction,        but   contends       that      the

district court erred when it failed to sentence him pursuant to

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

124    Stat.      2372    (2010)      (codified        in    scattered     sections     of    21

U.S.C.).

                 Both     Banks      and    the       Government        request    that      the

sentence be vacated and the matter remanded for resentencing in

light of the FSA.              Accordingly, we affirm Banks’ conviction, but

we vacate his 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 Banks 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 note that at Banks’ sentencing hearing, counsel for the
defendant unsuccessfully argued for retroactive application of
the FSA.     Nevertheless, in light of the Attorney General’s
(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




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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