                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5083


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARTINEZ KARON HOLMES, a/k/a Hammer,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00582-PMD-1)


Submitted:   September 29, 2011           Decided:   October 14, 2011


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


Affirmed in part, vacated in part, and remanded by unpublished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


Jill E. M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for the Appellant.    William N. Nettles, United
States Attorney, Alston C. Badger, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Following       a     jury    trial,    Martinez       Karon    Holmes       was

convicted of possession with intent to distribute fifty grams or

more of cocaine base and a quantity of cocaine, in violation of

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)(A)(i) (2006).                    The district court sentenced

him to 180 months’ imprisonment.                     On appeal, Holmes does not

challenge his convictions, but contends that the district court

erred    when     it   failed      to     apply   the   provisions        of   the    Fair

Sentencing Act of 2010 (FSA) when imposing the sentence. 1

            Both       Holmes      and    the     Government       request     that       the

sentence be vacated and the matter remanded for resentencing in

light of the FSA.             Accordingly, we affirm Holmes’ 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     Holmes    whose      offenses     were

committed prior to August 3, 2010, the effective date of the




     1
       Holmes also argues the new crack to cocaine ratio in the
FSA is unconstitutional.   In light of our disposition, we find
it premature to address this issue in this appeal.



                                             2
Act, but who was sentenced after that date.                 We leave that

determination in the first instance to the district court. 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




     2
        We note that at Holmes’ October 7, 2010 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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