                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4199


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRIAN EDWARD RIVERS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01093-PMD-1)


Submitted:   September 29, 2011           Decided:   November 3, 2011


Before WILKINSON, MOTZ, and WYNN, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Cameron   J.   Blazer,   Assistant   Federal    Public  Defender,
Charleston, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Matthew J. Modica, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            On    October       25,    2010,    Brian     Edward       Rivers    pleaded

guilty, pursuant to a plea agreement, to possession with intent

to distribute five or more grams of cocaine base, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006), and use and carry of

a   firearm      during   and     in     relation       to,      and   possession       in

furtherance of, a drug trafficking crime, in violation of 18

U.S.C.     § 924(c)(1)      (2006).            The     charged     criminal      conduct

occurred    on    or    about     July    10,    2009.        The      district       court

sentenced Rivers on February 15, 2011, to a cumulative term of

120 months in prison.

            Rivers now appeals, claiming that the district court

erred    when    it    failed    to    apply     the    provisions       of     the    Fair

Sentencing Act of 2010 (FSA) in imposing his sentence.                                 The

Government has filed a motion, with the consent of Rivers, to

remand to the district court for resentencing in accordance with

the amendments wrought by the FSA.                      We grant the motion and

accordingly vacate Rivers’ sentence and remand the case to the

district court to permit resentencing.

            By this disposition, however, we do not indicate a

view as to whether the FSA is applicable to a defendant such as

Rivers, whose offense conduct occurred before the August 3, 2010

enactment of the FSA, but who was sentenced after that date.                            We



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leave that determination in the first instance to the district

court. ∗

                                                 VACATED IN PART
                                                    AND REMANDED




      ∗
       We note that at Rivers’ sentencing hearing, counsel for
the defendant unsuccessfully argued for 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.



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