     Case: 10-51149     Document: 00512002224         Page: 1     Date Filed: 09/27/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 27, 2012

                                       No. 10-51149                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

NOE JAIMES

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-385-1



 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        In our prior opinion in this case, we affirmed the district court’s imposition
of a sentence of 292 months of imprisonment on defendant Noe Jaimes. The
Supreme Court vacated and remanded the judgment of this court for further
consideration in light of Dorsey v. United States, 132 S.Ct. 2321 (2012). In


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51149   Document: 00512002224      Page: 2   Date Filed: 09/27/2012




                                  No. 10-51149

Dorsey, the Supreme Court held that the Fair Sentencing Act of 2010 (“FSA”)
applies “to the post-Act sentencing of pre-Act offenders.” Id. at 2335. The FSA
enacted new, more lenient mandatory minimums applicable to offenders who
had a crack cocaine violations.
      The Government concedes that the Appellant fits the profile in Dorsey.
However it argues that the application of the FSA would have no effect on
Jaimes’s statutory maximum term of imprisonment or offense level under the
Guidelines, therefore resentencing is unnecessary. We agree.
      Jaimes pled guilty to possession with intent to distribute 5 grams or more
of cocaine base in violation of 21 U.S.C. § 841(a)(1). Because Jaimes had been
previously convicted of a felony drug offense, he was subject to an enhanced
punishment of ten years to life imprisonment under 21 U.S.C. §§ 851 and 841
(b)(1)(B)(iii). As a career offender, Jaimes’s offense level was dictated by the
statutory maximum applicable to the offense. See USSG § 4B1.1(b). The career
offender guideline ties the offense level to the statutory maximum sentence for
that offense, so an offense with a statutory maximum of life results in an offense
level of 37. See USSG 4B1.1(b)(1).
      The FSA raised the statutory threshold to qualify for a maximum sentence
of life imprisonment from 5 to 28 grams of cocaine base. See 21 U.S.C. §
841(b)(1)(B)(iii). In the PSR, Jaimes was held accountable for 40.37 grams of
cocaine base. Jaimes argues that he actually possessed 24.25 grams of cocaine
base. The PSR converted $1612 of seized drug proceeds into 16.12 grams of
cocaine base to determine the final drug quantity reflected in the PSR - 40.37
grams. Jaimes’s argument regarding drug quantity is foreclosed as he failed to
object to the PSR on this basis prior to sentencing or in his prior appeal. Based


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                                 No. 10-51149

on the drug quantity in the PSR, 40.37 grams of cocaine base exceeds both the
old and the new statutory threshold for cocaine base. Both before and after the
effective date of the FSA, Jaimes faced a maximum sentence of life
imprisonment and a career offender level of 37. Thus, the new statute has no
impact on his guideline range and the sentence imposed. No remand for
resentencing is required in this case.
      Accordingly, we again affirm Jaimes’s sentence of 292 months
imprisonment. AFFIRMED.




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