United States v. James Hicks

Case: 10-60981 Document: 00511789732 Page: 1 Date Filed: 03/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 15, 2012
No. 10-60981
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HICKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:09-CR-71-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
James Hicks pleaded guilty of distributing 247.2 grams of cocaine base. On
appeal, he argues that the district court erred by refusing to apply the Fair
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60981 Document: 00511789732 Page: 2 Date Filed: 03/15/2012
No. 10-60981
Sentencing Act of 2010 (“FSA”). His argument is foreclosed by United States v.
Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011), petition for cert. filed (Dec. 15,
2011) (No. 11-8023), and petition for cert. filed (Dec. 27, 2011) (No. 11-8268),
which held that the FSA does not apply retroactively to defendants whose sen-
tencing occurred after the FSA’s effective date but whose offenses occurred
before that 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 remains binding unless the Supreme Court overrules it. See
United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
Hicks contends that the district court erred by refusing to grant him a
safety-valve sentence reduction under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f).
The only dispute is whether “not later than the time of sentencing” Hicks “truth-
fully provided to the Government all information and evidence . . . concerning
the offense.” § 3553(f)(5). He argues that, regardless of how much he balked,
prevaricated, or misled federal agents, he is entitled to the reduction if he ulti-
mately provided all relevant information before sentencing. This proposition is
doubtful in light of a defendant’s obligation to provide all relevant information
even if the government does not request it. See United States v. Flanagan, 80
F.3d 143, 146-47 (5th Cir. 1996). But we need not examine the degree of good
faith required, because the district court did not clearly err by finding that Hicks
never made full disclosure. See United States v. Edwards, 65 F.3d 430, 432-33
(5th Cir. 1995).
The judgment is AFFIRMED.
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