
    UNITED STATES of America, Plaintiff—Appellee, v. Roderick BANKS, a/k/a Colonel, Defendant—Appellant.
    No. 11-4456.
    United States Court of Appeals, Fourth Circuit.
    Submitted: Dec. 13, 2011.
    Decided: Dec. 22, 2011.
    Marilyn G. Ozer, Massengale & Ozer, Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
    Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
   Affirmed in part, vacated in part, and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

On August 2, 2010, Roderick Banks entered a guilty plea to conspiracy to possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district court sentenced Banks on April 11, 2011, to 120 months’ imprisonment. On appeal, Banks does not challenge his conviction, but contends that the district court erred when it failed to sentence him pursuant to the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372 (2010) (codified in scattered sections of 21 U.S.C.).

Both Banks and the Government request that the sentence be vacated and the matter remanded for resentencing in light of the FSA. Accordingly, we affirm Banks’ conviction, but we vacate his 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 Banks whose offense was 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 the decisional process.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED. 
      
       We note that at Banks’ sentencing hearing, counsel for the defendant 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 appropriate, without indicating any view as to the outcome, to accord the district court an opportunity to consider the matter anew.
     