     Case: 11-40516     Document: 00511823818         Page: 1     Date Filed: 04/17/2012




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

                                                                            FILED
                                                                           April 17, 2012
                                     No. 11-40516
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MALONE BURNS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-135-1


Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
        Malone Burns appeals the 188-month sentence imposed for his conviction
for possession with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1). In his sole issue on appeal, he contends that the district court erred
by refusing to apply the Fair Sentencing Act of 2010 (FSA) to his sentence. His
argument is foreclosed by our decision in United States v. Tickles, 661 F.3d 212,
215 (5th Cir. 2011), petitions for cert. filed (Dec. 15, 2011) (No. 11-8023) and
(Dec. 27, 2011) (No. 11-8268), which held that the FSA does not apply

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40516    Document: 00511823818    Page: 2   Date Filed: 04/17/2012

                                No. 11-40516

retroactively to defendants whose sentencing occurred after the FSA’s effective
date but whose offenses occurred before the effective 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 is nevertheless
binding. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir.
2008).
      The judgment of the district court is AFFIRMED.




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