United States v. Malone Burns , 466 F. App'x 383 ( 2012 )

Case: 11-40516 Document: 00511823818 Page: 1 Date Filed: 04/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 17, 2012
No. 11-40516
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MALONE BURNS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-135-1
Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Malone Burns appeals the 188-month sentence imposed for his conviction
for possession with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1). In his sole issue on appeal, he contends that the district court erred
by refusing to apply the Fair Sentencing Act of 2010 (FSA) to his sentence. His
argument is foreclosed by our decision in United States v. Tickles, 661 F.3d 212,
215 (5th Cir. 2011), petitions for cert. filed (Dec. 15, 2011) (No. 11-8023) and
(Dec. 27, 2011) (No. 11-8268), which held that the FSA does not apply
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40516 Document: 00511823818 Page: 2 Date Filed: 04/17/2012
No. 11-40516
retroactively to defendants whose sentencing occurred after the FSA’s effective
date but whose offenses occurred before the effective date. Although the
Supreme Court has recently granted certiorari in two Seventh Circuit cases that
held that the FSA does not apply retroactively, our precedent is nevertheless
binding. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir.
2008).
The judgment of the district court is AFFIRMED.
2