     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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.




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