                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4848


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARQUICE LUMONT RIVERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00012-MR-2)


Submitted:   June 10, 2014                 Decided:   June 27, 2014


Before SHEDD, DIAZ, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Wm.  Grayson   Lambert,   MCGUIREWOODS,  LLP,   Charlotte, North
Carolina, for Appellant.     Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Marquice Lumont Rivers pled guilty to an indictment

charging that, between August 2008 and April 2009, he conspired

to possess with intent to distribute fifty grams or more of

cocaine base, in violation of 21 U.S.C. § 846 (2012).                       On March

1, 2012, Rivers was sentenced to 262 months’ imprisonment.                           On

appeal,    counsel    has    filed    a       brief     pursuant    to     Anders    v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious   issues     for      appeal,      but    questioning        whether    the

district   court     erred   in    using      Rivers’     prior    convictions      to

sentence him as a career offender and whether Rivers’ sentence

was reasonable.        Rivers has not filed a supplemental pro se

brief, despite notice of his right to do so.                       While we affirm

Rivers’ conviction, we find that his sentence violates the rule

announced in Dorsey v. United States, 132 S. Ct. 2321 (2012);

accordingly, we vacate the sentence and remand for resentencing. 1

           Counsel first questions the district court’s use of

Rivers’    prior     convictions      to        apply     the     career     offender

enhancement   at     sentencing.          The    U.S.     Sentencing       Guidelines

Manual (“USSG”) provides, in relevant part, that a defendant is

a career offender if he was at least eighteen years old at the

     1
        The district court did not have the benefit of Dorsey,
which was issued after Rivers was sentenced but prior to this
appeal.



                                          2
time    of    the    instant      offense,      the       instant    offense     is     a    drug

felony or crime of violence, and the defendant has at least two

prior       felony    convictions         for       drug     offenses       or   crimes        of

violence.       See USSG § 4B1.1(a) (2010).                      Any prior sentence of

imprisonment exceeding one year and one month is counted if that

sentence was imposed within fifteen years of the commencement of

the instant offense.              USSG § 4A1.2(e); see USSG § 4B1.2 cmt. n.3

(counting provisions of § 4A1.2 are applicable to counting of

convictions         under    §    4B1.1).           The    record    before      this       court

establishes that both of Rivers’ prior felony drug convictions

satisfy      the     requirements        for    the       application       of   the       career

offender enhancement.

              At the time of sentencing, the district court believed

that    Rivers       faced       a    statutory           maximum    sentence         of     life

imprisonment.             After      sentencing,           the   Supreme     Court         issued

Dorsey, which held that the more lenient penalties of the Fair

Sentencing Act of 2010 (“FSA”) applied to pre-FSA offenders who

were sentenced after the FSA’s effective date.                              Dorsey, 132 S.

Ct.    at    2331.        Because     Rivers        was    sentenced    after     the       Act’s

effective date for conduct that occurred prior to that date, the

Act    applies       to   him.        Rivers        pled    guilty     to   conspiracy         to

distribute at least fifty grams of cocaine base, and the parties

agreed at sentencing that Rivers was responsible for 55.6 grams

of    cocaine       base.        Under   the        amended      version    of   21        U.S.C.

                                                3
§ 841(b)(1)(B)         (2012),    Rivers’       statutory      maximum      sentence     is

forty      years’       imprisonment,       a      change      which     impacts         the

calculation      of     his    career    offender    offense       level     under      USSG

§ 4B1.1(b).       We conclude, therefore, that Rivers’ sentence must

be    vacated    and    the    case     remanded    to   the      district    court     for

resentencing. 2

             In accordance with Anders, we have reviewed the record

for other meritorious issues and have found none.                           Accordingly,

we affirm Rivers’ conviction, vacate his sentence, and remand

for    resentencing       in     accordance      with    the      rule   announced       in

Dorsey.      This      court    requires    that     counsel       inform    Rivers,     in

writing,    of    his    right    to     petition    the    Supreme      Court     of    the

United States for further review.                    If Rivers 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 at that time.                            Counsel’s

motion must state that a copy thereof was served on Rivers.                              We

dispense     with       oral    argument     because        the    facts     and     legal




       2
       Because we are remanding for resentencing under the FSA,
we need not address Rivers’ challenge to the substantive
reasonableness of his sentence.



                                            4
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                        AFFIRMED IN PART,
                                                          VACATED IN PART
                                                             AND REMANDED




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