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

                                                                   FILED
                                                                 October 24, 2013

                                  12-30562                        Lyle W. Cayce
                                                                       Clerk



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee

v.

MAYO GERARD BARNES,

                                          Defendant - Appellant



                Appeal from the United States District Court
                   for the Western District of Louisiana


                 ON PETITION FOR PANEL REHEARING
Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:
      In zealous defense of Appellant Mayo Gerard Barnes (“Barnes”), appointed
counsel has filed a petition for panel rehearing relying on a memorandum issued
by the United States Attorney General on August 29, 2013, entitled “Retroactive
Application of Department Policy on Charging Mandatory Minimum Sentences
and Recidivist Enhancements in Certain Drug Cases.” In that memorandum,
the Attorney General seeks to clarify how the prosecutorial charging policy
announced in a previous August 12 memorandum, which was discussed in our
panel opinion, would be imposed retroactively to cases that were charged prior
                                   No. 12-30562

to August 12. This Court was unaware of the existence of the August 29 memo
when it issued the panel opinion on September 17.
        The petition for panel rehearing asserts that the August 29 memorandum
provides that a valid plea agreement that was entered into prior to the new
policy does not preclude a defendant from becoming a beneficiary of the new
charging policy. The petition then quotes the following language from the
August 29 memo: if a “defendant would not have been charged with the
mandatory minimum under the new policy but previously entered a guilty plea
and admitted to facts triggering a mandatory minimum, prosecutors are
encouraged to seek relief from the mandatory minimum sentence.”                That
language is indeed in the memo; however, it is set forth in the section entitled
“Defendants Who Have Pleaded Guilty But Have Not Been Sentenced.” Thus,
because Barnes has already been sentenced that language does not apply to his
case.
        The petition for rehearing also points to another section of the memo that
states that application of the policy “is an exercise of prosecutorial discretion
over charging decisions.”     However, in the memo that quoted language is
specifically limited to “any decision to afford relief to those already convicted but
not yet sentenced.” Because Barnes has already been sentenced, the language
in question does not apply to his case. Moreover, in a section of the August 29
memorandum entitled “Defendants Who Have Been Sentenced,” the
memorandum expressly provides that: “Prosecutors should not disturb the
sentence in a case in which the sentence has been imposed, whether or not the
case is on direct appeal or in some other stage of post-conviction litigation.” The
memorandum then quotes the following language from the Supreme Court’s
opinion in Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012): “[I]n federal
sentencing the ordinary practice is to apply new penalties to defendants not yet
sentenced, while withholding that change from defendants already sentenced.”

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                                 No. 12-30562

Accordingly, the Attorney General’s August 29 clarification memorandum does
not purport to offer Barnes any relief.
      The Petition for Panel Rehearing is DENIED.




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