                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOKARI LEE BARNETT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:09-cr-00244-CCB-2)


Submitted:   October 4, 2011                 Decided:   October 13, 2011


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Richard W. Winelander, Baltimore,            Maryland, for Appellant.
Michael Clayton Hanlon, Assistant             United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jokari Lee Barnett pleaded guilty, pursuant to a plea

agreement, to possession with intent to distribute fifty grams

or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

(2006).      The district court sentenced Barnett to 120 months’

imprisonment.      Barnett appeals.

           On appeal, Barnett does not challenge his conviction;

the only issue he raises is the claim that the district court

erred in failing to sentence him in accordance with the Fair

Sentencing Act of 2010 (FSA).             Both Barnett and the Government

have moved to remand the case for resentencing in accordance

with the FSA.       Accordingly, we affirm Barnett’s conviction, but

vacate Barnett’s sentence and remand the 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   Barnett    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 note that at Barnett’s February 11, 2011 sentencing
hearing, the court declined to rule on defense counsel’s
argument for the retroactive application of the FSA.    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
(Continued)
                                         2
           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




any view as to the outcome, to accord the district court an
opportunity to consider the matter anew.



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