                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4570


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BENNIE GERARD HARRIS,

                Defendant - Appellant.



                            No. 11-4691


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD DARNELL LONG,

                Defendant - Appellant.




Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., District Judge. (1:10-cr-00108-WO-1; 1:10-cr-00108-WO-3)


Submitted:   November 22, 2011            Decided:   December 15, 2011


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael B. Driver, Durham, North Carolina; Mark E. Edwards,
EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellants.
Michael   A.   DeFranco,   Assistant  United  States   Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Bennie Gerard Harris and Richard Darnell Long appeal

the   sentences       stemming     from    their      convictions        for    possession

with intent to distribute 132.7 grams of a mixture containing

cocaine      base,     in    violation     of     21     U.S.C.      §§ 841(a)(1)           and

(b)(1)(A) (2006).            Their sole assertion on appeal is that they

should      have      been    sentenced     in       accordance       with        the      Fair

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

they have filed an unopposed motion to remand their cases so

that the district court may do so.                      Based on our consideration

of    the    materials       submitted    in     this     appeal,     we    affirm         both

Harris’ and Long’s convictions, grant their unopposed motion to

remand,      vacate    the    sentences,       and    remand     these     cases      to    the

district court to permit resentencing.                         By this disposition,

however,      we     indicate    no      view    as      to    whether      the     FSA      is

retroactively         applicable    to    defendants          like   Harris     and     Long,

whose      offenses    were    committed        prior    to    August      3,   2010,       the

effective date of the Act, but who were sentenced after that

date.       We leave that determination in the first instance to the

district court. *            We dispense with oral argument because the


       *
       We note that at the Defendants’ sentencing hearings,
counsel 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
(Continued)
                                            3
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




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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