                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4658


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TREMAYNE DEVON SCOTT,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00348-TDS-1)


Submitted:   January 25, 2012             Decided:   February 3, 2012


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina,
for Appellant.    Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Tremayne Devon Scott appeals his criminal conviction

and    sentence.         A    federal   grand       jury    indicted      Scott     for

possession with intent to distribute 120.3 grams of a mixture

containing a detectible amount of cocaine base, in violation of

21    U.S.C.    § 841(a)(1)     (2006).       Pursuant      to    21   U.S.C.     § 851

(2006), Scott’s sentence was subject to a statutory enhancement

based on his prior conviction for selling cocaine in violation

of    N.C.     Gen.   Stat.    § 90-95(a)(1)        (1998).       Scott    moved     to

suppress the crack cocaine, and the district court denied the

motion       following   a    suppression     hearing.           Scott    entered    a

conditional guilty plea, pursuant to a written plea agreement,

to the offense charged in the indictment, reserving the right to

appeal the district court’s denial of his motion to suppress.

The district court sentenced Scott to 240 months’ imprisonment,

the statutory mandatory minimum sentence.

               Scott’s counsel has filed a brief in which he argues

that Scott should be resentenced under the Fair Sentencing Act

of 2010 (FSA).        The Government filed a motion, joined by Scott,

to remand this case to the district court to allow Scott to be

resentenced      in   accordance    with      the    FSA.        The   remainder    of

counsel’s brief is filed pursuant to Anders v. California, 386

U.S. 738 (1967), and questions whether the district court erred

in denying Scott’s motion to suppress.                Scott has filed a pro se

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supplemental brief. 1       We affirm the conviction, grant the motion

to remand, vacate the sentence, and remand for resentencing.

            Both    Scott    and    his       counsel    question     whether    the

district court erred in denying Scott’s motion to suppress.                      The

district court found that the officers’ search of Scott’s car

and seizure of the bag containing contraband were lawful because

1) Scott’s detention by the officers for brief questioning was

supported by reasonable suspicion, 2) Scott gave valid consent

to enter the vehicle, and 3) once lawfully within the car, the

officer encountered contraband in plain view within the blue

bag, warranting seizure of the bag.                    In reviewing a district

court’s ruling on a motion to suppress, this court reviews the

district   court’s    legal    conclusions        de     novo   and   its   factual

findings for clear error.            United States v. Foster, 634 F.3d

243, 246 (4th Cir. 2011).           When a suppression motion has been

denied,    this    court    views   the       evidence    “in   the    light    most


     1
       Among the issues Scott raises is that counsel rendered
ineffective assistance.    Because our review of the record
reveals no conclusive evidence of counsel’s ineffectiveness, we
conclude that Scott does not state a cognizable claim of
ineffective assistance of counsel on direct appeal. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (providing
standard).   We also reject Scott’s claim that the district
court’s application of a statutory sentencing enhancement
violated this court’s holding in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), because Scott was sentenced
to greater than one year of imprisonment for his predicate
offense.



                                          3
favorable to the Government.”                  Id.        Moreover, we will defer to

the credibility determinations made by the district court at the

suppression hearing.              United States v. Abu Ali, 528 F.3d 210,

232 (4th Cir. 2008).

            A    police      officer          does    not       implicate          the     Fourth

Amendment by merely approaching an individual and questioning

him.      United States v. Burton, 228 F.3d 524, 527 (4th Cir.

2000).     Additionally, “the police can stop and briefly detain a

person     for    investigative          purposes          if    the        officer        has    a

reasonable       suspicion        supported          by     articulable            facts      that

criminal    activity        may    be   afoot,        even      if    the    officer          lacks

probable cause.”       United States v. Sokolow, 490 U.S. 1, 7 (1989)

(internal quotation marks omitted).

            A district court’s finding of consent is a factual

finding that should not be disturbed unless clearly erroneous.

United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en

banc).     In determining whether officers were given consent to a

Fourth Amendment intrusion, this court must determine, under the

totality of the circumstances, whether consent was knowing and

voluntary.       See United States v. Mendenhall, 446 U.S. 544, 557

(1980).          The      court         may        appropriately            “consider            the

characteristics        of     the       accused        (such         as     age,     maturity,

education,       intelligence,          and        experience)        as     well        as      the

conditions under which the consent to search was given (such as

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the officer’s conduct; the number of officers present; and the

duration, location, and time of the encounter).”                        Lattimore, 87

F.3d at 650.       Mere “acquiescence to a claim of lawful authority”

is   insufficient       to    constitute        consent.          Bumper       v.   North

Carolina, 391 U.S. 543, 549 (1968).

               An officer may seize incriminating evidence without a

warrant if “(1) the officer is lawfully in a place from which

the object may be plainly viewed; (2) the officer has a lawful

right    of    access   to   the   object      itself;    and     (3)    the    object’s

incriminating       character      is    immediately        apparent.”              United

States v. Jackson, 131 F.3d 1105, 1109 (4th Cir. 1997) (citing

Horton    v.    California,     496     U.S.    128,     136-37    (1990));         United

States    v.     Williams,    41   F.3d        192,    196-97     (4th     Cir.      1994)

(discussing plain-view search of closed container).                        “[A]lthough

the plain view doctrine may support the warrantless seizure of a

container believed to contain contraband, any subsequent search

of its concealed contents must either be accompanied by a search

warrant or justified by one of the exceptions to the warrant

requirement.”       Williams, 41 F.3d at 197.              However, “courts will

allow a search of a container following its plain view seizure

only ‘where the contents of a seized container are a foregone

conclusion,’” such as “‘when a container is not closed, . . .

[such that] the container supports no reasonable expectation of

privacy and the contents can be said to be in plain view.’”                            Id.

                                          5
(quoting United States v. Corral, 970 F.2d 719, 725 (10th Cir.

1992)).

               With these standards in mind, our review of the record

leads us to conclude that the officers lawfully elevated their

interaction with Scott to an investigative detention and that

Scott       knowingly      and   voluntarily        consented     to   entry    of       his

vehicle for the limited purpose of obtaining cigarettes.                                  We

also    conclude       that,     while     acting    within      the   scope   of    that

consent, one officer observed contraband within an open bag in

plain view and lawfully seized both the bag and its contents.

See    Williams,      41    F.3d   at     196-97.        Thus,   the   district      court

properly denied the motion to suppress.

               Finally, based on our consideration of the materials

submitted with the joint motion to remand, as well as Scott’s

opening brief, we grant the motion to remand, vacate Scott’s

sentence,       and     remand     this    case     to    the    district   court        for

resentencing.         By this disposition, however, we indicate no view

as     to    whether       the   FSA      is   retroactively       applicable       to    a

defendant, like Scott, whose offenses were committed prior to

August 3, 2010, the effective date of the FSA, but who was




                                               6
sentenced after that date, leaving that determination in the

first instance to the district court. 2

               In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Scott’s conviction and deny Scott’s request

to replace counsel.            We also grant the parties’ joint motion to

remand, vacate the sentence, and remand for resentencing.                     This

court requires that counsel inform Scott, in writing, of the

right to petition the Supreme Court of the United States for

further review.         If Scott requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move    in    this   court   for   leave   to   withdraw    from

representation.         Counsel’s motion must state that a copy thereof

was served on Scott.           We dispense with oral argument because the

facts    and    legal    contentions     are   adequately    presented   in    the




     2
       We note that, at Scott’s sentencing hearing conducted on
June 13, 2011, 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.



                                          7
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                      AFFIRMED IN PART,
                                                       VACATED IN PART,
                                                           AND REMANDED




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