                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0647n.06

                                           No. 09-2212

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF MICHIGAN
                                                         )
JOHN TYLER McKINNEY, SR.,                                )
                                                         )                 OPINION
       Defendant-Appellant.                              )
                                                                                       FILED
                                                                                  Aug 31, 2011
BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.
                                                                            LEONARD GREEN, Clerk

       PER CURIAM. Defendant John McKinney, Sr., pleaded guilty to one count of distributing

five or more grams of cocaine base in violation of 21 U.S.C. § 841(a). His plea agreement preserved

his right to appeal a penalty enhancement that he received for a prior felony drug offense. He also

contends that the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (Aug.

3, 2010), should be applied retroactively to his sentence.

       The panel has had the opportunity to consider the arguments advanced by the parties and to

conduct our own independent review of the record on appeal. In this case, the district court entered

an Order on April 29, 2009, which explains in detail why defendant’s prior conviction in Michigan

state court for possession of dihydrocodeinone qualifies as a prior “felony drug offense” under 21

U.S.C. § 841(b)(1)(B). We agree with the reasoning of the district court and affirm on that basis.

       With respect to the second issue raised by defendant, a prior panel of this court has decided

that the FSA does not apply retroactively to cases on direct appeal. United States v. Carradine, 621
No. 09-2212
United States v. McKinney

F.3d 575 (6th Cir. 2010). A panel of this court cannot overrule a published decision of another

panel. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Defendant

recognizes that Carradine is controlling authority but raises the issue to preserve it for possible en

banc review, which he is entitled to pursue.

       The judgment of the district court is affirmed.




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