                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-4126


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY BALLARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (7:10-cr-00052-FL-1)


Submitted:   September 27, 2011           Decided:   October 24, 2011


Before MOTZ, SHEDD, and WYNN, Circuit Judges.


Vacated and remanded for resentencing by unpublished per curiam
opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

            Timothy    Ballard    appeals       his    180-month      sentence

received for his conviction in May 2009 for the distribution of

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

§ 841(a)(1) and (b)(1)(A) (2006).         Ballard’s sole contention on

appeal is that, because he was not sentenced until after August

3, 2010, he should have been sentenced under the provisions of

the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat.

2372 (the “FSA”).      Although the Government resisted this line of

argument in the district court, it now agrees before this court

that Ballard’s sentence should be vacated and the case remanded

for resentencing.

            We,   therefore,   vacate   Ballard’s      sentence     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 Ballard whose

offenses were 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 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 FOR RESENTENCING

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