                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4360


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS JEROME NEAL,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.       Thomas David
Schroeder, District Judge. (1:10-cr-00359-TDS-1)


Submitted:   September 29, 2011           Decided:   October 4, 2011


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Diana L. Stavroulakis, Pittsburgh, Pennsylvania, for Appellant.
Clifton Thomas Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Thomas Jerome Neal pled guilty to distributing 27.8

grams       of     cocaine     base   “crack”    in    violation    of   21    U.S.C.

§ 841(a)(1) & (b)(1)(B) (2006), and was sentenced to 120 months

of imprisonment.             On appeal, Neal’s sole issue is that he should

have       been    sentenced     under   the    Fair   Sentencing    Act      of   2010

(“FSA”), Pub. L. No. 111–220.                   Currently pending before this

court is Neal’s unopposed motion to remand this case to the

district court to allow Neal to be resentenced in accordance

with the FSA.

                  Based on our consideration of the materials submitted

with this motion, we grant the motion to remand, vacate the

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 Neal whose offenses were committed prior to August 3, 2010,

the effective date of the Act, but who was sentenced after that

date, leaving that determination in the first instance to the

district court. ∗        Because Neal does not contest his conviction on

appeal, we affirm his conviction.


       ∗
       See United States v. Bullard, 645 F.3d 237, 248 n.5 (4th
Cir. 2011) (reserving judgment on the question “whether the FSA
could be found to apply to defendants whose offenses were
committed before August 3, 2010, but who have not yet been
sentenced”).


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            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.




                                                      AFFIRMED IN PART,
                                          VACATED IN PART, AND REMANDED




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