     Case: 11-20419     Document: 00511712747         Page: 1     Date Filed: 01/04/2012




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

                                                                            FILED
                                                                          January 4, 2012
                                     No. 11-20419
                                   Summary Calendar                        Lyle W. Cayce
                                                                                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


Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
        Joseph Jose Benitez presents arguments that he concedes are foreclosed
by United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011), which held that
the Fair Sentencing Act of 2010 (FSA) does not apply retroactively to a
defendant who is sentenced after the effective date of the FSA but whose offense
preceded the FSA’s effective date. Benitez raises his arguments solely to
preserve them for further review. The Government has moved for summary
affirmance, or for an extension of time to file a brief.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 00511712747    Page: 2   Date Filed: 01/04/2012

                                No. 11-20419

      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.




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