                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4354


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUBEN HERBERT TRAPP, a/k/a Lil Herb,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00502-JFA-13)


Submitted:   December 22, 2011             Decided:   February 16, 2012


Before KING and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Edye U. Moran, MORAN LAW OFFICES, Columbia, South Carolina, for
Appellant.   William N. Nettles, United States Attorney, Stacey
D. Haynes, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ruben Herbert Trapp pled guilty, with the benefit of a

written plea agreement, to distribution of five grams or more of

crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

(2006).      The    district   court    sentenced         Trapp   to   168   months’

imprisonment.         On   appeal,    Trapp    argues       his   plea    counsel’s

ineffective assistance rendered his guilty plea unknowing and

involuntary and seeks to have his conviction reversed.                        During

the pendency of this appeal, the parties filed a joint motion to

vacate Trapp’s sentence and remand this case to the district

court to allow Trapp to be resentenced in accordance with the

Fair Sentencing Act of 2010 (FSA).              Based on our consideration

of the record in this case, we affirm Trapp’s conviction, grant

the parties’ joint motion, vacate the sentence, and remand to

the district court for resentencing.

            The Government offered Trapp an opportunity to plead

to   a    cocaine     conspiracy     charge    or     a     substantive      cocaine

distribution       offense.    He    chose    the   latter.       Apparently     now

regretting his choice, Trapp asserts that his plea counsel’s

misadvice caused him to choose the plea agreement with the more

onerous sentencing consequences.              He does not claim he would

have instead insisted upon going to trial on the charge against

him but for counsel’s alleged error.                See Hill v. Lockhart, 474

U.S. 52, 59 (1985) (holding prejudice in ineffective assistance

                                        2
claim    can        be     established    in   guilty    plea     context         only   upon

showing        “a     reasonable       probability      that,    but        for     counsel’s

errors, [the defendant] would not have pleaded guilty and would

have insisted on going to trial”).                    We have carefully reviewed

the record in this case and have determined that no conclusive

evidence of ineffective assistance of counsel appears on the

face of this record.                 See United States v. King, 119 F.3d 290,

295     (4th        Cir.    1997)     (providing     standard).             Thus,    Trapp’s

ineffective assistance claim is not cognizable on direct appeal,

but must, instead, be litigated in an appropriate proceeding for

post-conviction              relief.       Accordingly,         we         affirm     Trapp’s

conviction.

               Turning to the joint motion to remand, we grant the

parties’ motion to vacate Trapp’s sentence and remand to the

district court to permit that court to determine whether Trapp

may   be   resentenced           in    accordance     with      the    FSA.         By   this

disposition, however, we indicate no view as to whether the FSA

is retroactively applicable to a defendant, like Trapp, whose

offense was committed prior to the August 3, 2010, effective

date of the Act, 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



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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                        AFFIRMED IN PART;
                                                         VACATED IN PART;
                                                             AND REMANDED




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