                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-5237


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

ADRIAN   LAMONT   KEARNEY,   a/k/a   Adrian   Carlton   White,   a/k/a
A.D.,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:10-cr-00041-BR-1)


Submitted:   September 19, 2011            Decided:     September 30, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:

               Adrian Lamont Kearney pled guilty to distribution of

five grams or more of crack cocaine (Count One), and possession

with intent to distribute fifty or more grams of crack cocaine

(Count Two), in violation of 21 U.S.C. § 841(a)(1) (2006).                         The

district court sentenced Kearney on December 6, 2010, to the

statutorily-mandated          minimum   sentence      of   120   months     on   Count

Two, to run concurrently with a ninety-seven month sentence on

Count      One.     Kearney   appealed    the   sentence,        arguing    that   the

district court erred in failing to sentence him in accordance

with the Fair Sentencing Act of 2010 (“FSA”). *                  The United States

initially opposed resentencing.

               On July 22, 2011, the Government filed a supplemental

brief setting forth its revised position on the application of

the FSA.          The Government now agrees that Kearney should have

been       sentenced   pursuant    to    the    FSA   because      his     sentencing

occurred after the Act’s effective date.                   Thus, the Government

requests a remand for resentencing.

               Based on our consideration of the materials submitted,

we vacate the district court’s judgment and remand this case to

the district court to permit resentencing.                 By this disposition,

       *
       The Fair Sentencing Act of 2010 increased the threshold
quantities of cocaine base needed to trigger certain mandatory
minimum sentences.



                                          2
however,    we    indicate     no    view         as     to   whether    the    FSA   is

retroactively      applicable       to   a       defendant      like    Kearney   whose

offenses were committed prior to August 3, 2010, the effective

date of the FSA, but who was sentenced after that date, leaving

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




                                             3
