United States v. Joseph Benitez , 485 F. App'x 735 ( 2012 )

Case: 11-20419 Document: 00511956491 Page: 1 Date Filed: 08/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2012
No. 11-20419 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSEPH JOSE BENITEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-97-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
On January 4, 2012, we granted the Government’s motion for summary
affirmance, because we were bound by our precedent which held that the Fair
Sentencing Act of 2010 (FSA) does not apply retroactively to a defendant who is
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20419 Document: 00511956491 Page: 2 Date Filed: 08/14/2012
No. 11-30366
sentenced after the effective date of the FSA but whose offense preceded the
FSA’s effective date. United States v. Benitez, 456 F. App’x 446 (5th Cir. 2012)
(citing United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011)).
After our opinion was issued, the Supreme Court held in Dorsey v. United
States, 132 S. Ct. 2321 (2012), that the more lenient penalties of the FSA apply
to offenders who committed offenses before the effective date of the FSA, but who
were sentenced after that date. We therefore VACATE Benitez’s sentence and
REMAND this case for resentencing consistent with Dorsey.
VACATED and REMANDED.
2