US v. Chavis Whitley, No. 11-4527 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4527 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHAVIS ORLANDO WHITLEY, Defendant -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 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 unopposed motion timely to appealed. remand this Whitley case for then filed an resentencing in accordance with the Fair Sentencing Act of 2010 and our decision in United Whitley States has v. Simmons, withdrawn all 649 other F.3d 237 Cir. 2011). raised arguments (4th on appeal. Applying our holding in Simmons, we conclude that Whitley has, at most, crime. one prior felony conviction for a drug trafficking Therefore, he does not qualify as a career offender, and should be resentenced. Accordingly, conviction, vacate his we grant sentence, district court for resentencing. Whitley s and motion, remand the affirm case to his the We indicate no view as to whether the FSA is retroactively applicable to a defendant like 2 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 3
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