                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4128


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ACIENTO TYRONE WILLIAMS, a/k/a "Dante",

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00050-JPB-DJJ-1)


Submitted:   August 9, 2012                 Decided:   May 28, 2013


Before WILKINSON, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Kirk H. Bottner, BOTTNER & SKILLMAN, ATTORNEYS AT LAW, Charles
Town, West Virginia, for Appellant.    William J. Ihlenfeld, II,
United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Aciento   Tyrone     Williams      appeals   his    sixty-month       sentence

imposed after he pled guilty pursuant to a plea agreement to one

count of distributing cocaine base, in violation of 21 U.S.C.A.

§§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2012).                           Williams’

sole     assertion   is     that    the    district       court    erred    when   it

sentenced     him    to    the     statutory   mandatory          minimum    sentence

applicable to his crime before the Fair Sentencing Act (“FSA”)

became effective.         We vacate and remand for resentencing.

       Because Williams did not argue that he should be sentenced

under the FSA in the district court, we review for plain error.

See United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010)

(holding that “plain-error review applies when a party lodges an

objection to the sort of procedural sentencing error at issue

here for the first time on appeal”).                  Under that standard of

review, Williams must establish that “an error occurred, that

the error was plain, and that the error affected his substantial

rights.”     United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

2007).     “[I]t is enough that an error be ‘plain’ at the time of

appellate consideration for the second part of the . . . test to

be satisfied.”        Henderson v. United States, 133 S. Ct. 1121,

1130-31     (2013)    (internal        quotation      marks       and   alterations




                                           2
omitted). 1     Even if Williams satisfies these requirements, we

retain     discretion       to   correct       the      error,     which     we    will     not

exercise      unless      the    error    seriously           affects      the     fairness,

integrity      or      public      reputation           of    judicial          proceedings.

Muhammad, 478 F.3d at 249.

      Under Dorsey v. United States, 132 S. Ct. 2321 (2012), it

is   now   clear     that    the   FSA    is      retroactively         applicable        to    a

defendant who, like Williams, committed his offense prior to

August 3, 2010, but whose sentencing took place after the FSA’s

effective date.           Dorsey, 132 S. Ct. at 2335.                   It is also clear

that because Williams pled guilty to distributing 12.2 grams of

cocaine base, under the FSA, there is no longer a statutory

mandatory     minimum       sentence     applicable          to   his     crime.      See      21

U.S.C.A. § 841(b)(1)(B)(iii) (West Supp. 2012) (imposing five-

year statutory mandatory minimum sentence for crime involving

twenty-eight or more grams of cocaine base).

      Because       the   district     court       plainly        erred    by     failing      to

retroactively apply the FSA to Williams’s sentencing, we must

assess whether this error affected his substantial rights.                                  “To

satisfy     this      requirement        in       the    sentencing         context,        the


      1
       This appeal was placed in abeyance for Henderson, which
concerned itself with whether an error satisfies the plain error
test only if it was clearly error under current law at the time
of trial. Henderson, 133 S. Ct. at 1124.



                                              3
defendant must show that he would have received a lower sentence

had the error not occurred.”          United States v. Knight, 606 F.3d

171, 178 (4th Cir. 2010).        In this case, Williams’s status as a

career offender under USSG § 4B1.1 produced a Guidelines Range

of   188–235     months’     imprisonment.              After       granting     the

government’s USSG § 5K1.1 motion for substantial assistance, the

district    court      lowered    the       range      to     140–175        months’

imprisonment.    The imposed sentence of sixty months, therefore,

entailed    a   dramatic     downward       departure       from    the    advisory

Guidelines Range.

      Even though the district court would have departed from the

same baseline absent the error, the record reflects that--absent

the floor of the statutory minimum--the district court would

have gone even lower.         The district court noted that Williams

presented “one of the difficult cases,” and that Williams had

“made   a   sincere    effort    to   change     his     life,      hold   a    job,

[and] . . . to    seek     further    education.”           J.A.    33-34.       The

district court then remarked: “But this is a mandatory minimum

case.   And by statute, the least I can give is 60 months.                     And I

have given 60 months.”       J.A. 34.

      On this record, there is a “non-speculative basis”                     for us

to   conclude   that   the   district       court’s     error      restricted    its

sentencing discretion to impose a lower sentence.                     See Knight,

606 F.3d at 178.       Because we conclude such an error “seriously

                                        4
affected” the fairness of the judicial process, we exercise our

discretion to correct it and remand the matter to the district

court for resentencing under the FSA. 2   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                             VACATED AND REMANDED




     2
       We, of course, intimate no view as to whether the district
court should impose a different sentence on remand.



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