                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4527


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHAVIS ORLANDO WHITLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cr-00047-BO-1)


Submitted:   November 28, 2011            Decided: December 22, 2011


Before NIEMEYER, KING, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant.    Kristine L. Fritz,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Chavis Orlando Whitley pleaded guilty to carrying a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1) (2006), and possession with intent to

distribute more than 5 grams of cocaine base, in violation of 21

U.S.C. § 841(a)(1) (2006).                   In May 2011, the district court

sentenced Whitley to a total of 262 months’ imprisonment, after

accepting          the      classification          in      Whitley’s        Presentence

Investigation Report that Whitley was a career offender based on

prior state drug convictions.

              Whitley       timely       appealed.        Whitley     then     filed     an

unopposed      motion       to     remand    this    case     for    resentencing       in

accordance with the Fair Sentencing Act of 2010 and our decision

in   United    States       v.    Simmons,    649    F.3d    237    (4th    Cir.    2011).

Whitley      has    withdrawn      all    other     arguments      raised    on    appeal.

Applying our holding in Simmons, we conclude that Whitley has,

at   most,    one    prior       felony    conviction     for   a   drug     trafficking

crime.    Therefore, he does not qualify as a career offender, and

should be resentenced.

              Accordingly,         we    grant    Whitley’s     motion,      affirm     his

conviction,        vacate    his    sentence,       and   remand    the     case   to   the

district court for resentencing.                      We indicate no view as to

whether the FSA is retroactively applicable to a defendant like



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

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

date.   We leave 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 in the decisional

process.


                                                     AFFIRMED IN PART;
                                                      VACATED IN PART;
                                                          AND REMANDED




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