                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5279


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMES JULIUS TAYLOR,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00039-H-1)


Submitted:   August 24, 2011                 Decided:   August 30, 2011


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:

               James Julius Taylor pled guilty, pursuant to a written

plea agreement, to possession with intent to distribute fifty

grams    or    more    of    cocaine       base,        21    U.S.C.    § 841(a)(1)        (2006)

(Count One), and possession of a firearm in furtherance of a

drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2006) (Count

Two).     Taylor was sentenced to 120 months in prison on Count

One,     and    sixty       months     on      Count         Two.       The    sentences        run

consecutively.          Taylor now appeals, contending that the district

court erred when it failed to apply the provisions of the Fair

Sentencing Act of 2010 (FSA) when imposing sentence.                                The United

States    requests       that    the      sentence           be   vacated     and   the    matter

remanded for resentencing on Count One in conformity with the

FSA.

               Based on our consideration of the materials before the

court, we 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    Taylor,      whose

offenses were committed prior to April 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.



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            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.


                                                      VACATED AND REMANDED




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