                    Case: 11-10187         Date Filed: 08/06/2012   Page: 1 of 3

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-10187
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 3:10-cr-00124-MEF-TFM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

PETRONIUM BAILEY,
a.k.a. Petro Bailey,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (August 6, 2012)

Before CARNES, WILSON, and FAY, Circuit Judges.

PER CURIAM:

         Petronium Bailey appeals his 120-month sentence for possession with intent
              Case: 11-10187    Date Filed: 08/06/2012   Page: 2 of 3

to distribute five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a). On appeal, he argues that the Fair Sentencing Act of 2010 (“FSA”)

should apply because he was sentenced after the Act’s effective date. For the

reasons set forth below, we vacate Bailey’s sentence and remand for resentencing

under the FSA.

                                         I.

      On July 8, 2010, Bailey was indicted for distributing five grams or more of

cocaine base, to which he ultimately pleaded guilty. At his sentencing hearing,

held January 6, 2011, Bailey argued that the court should sentence him under the

FSA. The court overruled the objection, applied the pre-FSA version of 21 U.S.C.

§ 841, and sentenced Bailey to the applicable statutory mandatory minimum

sentence of 120 months’ imprisonment.

                                         II.

      We review de novo the application of law to a sentencing issue. United

States v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010). Prior to August 3,

2010, a defendant who possessed at least five grams of a mixture and substance

containing cocaine base, and had a prior conviction for a felony drug offense, was

subject to a mandatory minimum sentence of ten years’ imprisonment. 21 U.S.C.

§ 841(b)(1)(B)(iii) (Aug. 2, 2010). The FSA, enacted August 3, 2010, raised the

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              Case: 11-10187      Date Filed: 08/06/2012   Page: 3 of 3

quantity of cocaine base necessary to trigger the 10-year mandatory minimum

sentence for a defendant previously convicted of a felony drug offense from 5

grams to 28 grams. Pub. L. No. 111–220, 124 Stat. 2372 (2010), codified at 21

U.S.C. § 841(b)(1)(B)(iii). No mandatory minimum sentence exists where a

defendant possessed less than 28 grams of cocaine base. Dorsey v. United States,

567 U.S. ___, ___, 132 S.Ct. 2321, 2330, 183 L.Ed.2d 250 (2012). In Dorsey, the

Supreme Court held that the FSA applied to offenders who committed their

offenses before August 3, 2010, but who were sentenced after that date. 567 U.S.

at ___, 132 S.Ct. at 2326.

      The district court erred in not applying the FSA when sentencing Bailey.

Defendants who were sentenced after the FSA’s enactment on August 3, 2010, are

to be sentenced under the FSA even if they committed their offense before that

date. See id. Bailey was sentenced after August 3, 2010, on January 6, 2011.

Therefore, the district court erred in refusing to sentence him under the FSA. See

id.

      For the foregoing reasons, we vacate Bailey’s sentence and remand the case

for resentencing under the FSA.

      VACATED AND REMANDED.




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