US v. Bennie Harri, No. 11-4570 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4570 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENNIE GERARD HARRIS, Defendant - Appellant. No. 11-4691 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD DARNELL LONG, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00108-WO-1; 1:10-cr-00108-WO-3) Submitted: November 22, 2011 Decided: Before SHEDD, DUNCAN, and WYNN, Circuit Judges. December 15, 2011 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael B. Driver, Durham, North Carolina; Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellants. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Bennie Gerard Harris and Richard Darnell Long appeal the sentences stemming from their convictions for possession with intent to distribute 132.7 grams of a mixture containing cocaine base, in (b)(1)(A) (2006). should have violation of 21 U.S.C. ยงยง 841(a)(1) and Their sole assertion on appeal is that they been sentenced in accordance with the Fair Sentencing Act of 2010, Pub. L. No. 111 220 (the FSA ), and they have filed an unopposed motion to remand their cases so that the district court may do so. of the materials submitted in Based on our consideration this appeal, we affirm both Harris and Long s convictions, grant their unopposed motion to remand, vacate the sentences, and remand these cases to the district court to permit resentencing. By this disposition, however, whether we retroactively whose indicate no applicable offenses were to view as to defendants committed prior like to the Harris August 3, FSA and is Long, 2010, the effective date of the Act, but who were sentenced after that date. We leave that determination in the first instance to the district court. * We dispense with oral argument because the * We note that at the Defendants sentencing hearings, counsel unsuccessfully argued for retroactive application of the FSA. Nevertheless, 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 (Continued) 3 facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED appropriate, without indicating any view as to the outcome, to accord the district court an opportunity to consider the matter anew. 4
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