                    Case: 11-11019          Date Filed: 09/21/2012   Page: 1 of 3

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-11019
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 8:10-cr-00041-JDW-AEP-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff-Appellee,

                                                  versus

CEDRIC WILLIAMS,
a.k.a. Pain,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                     ________________________

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

                                           (September 21, 2012)

Before PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 11-11019     Date Filed: 09/21/2012   Page: 2 of 3

      Cedric Williams appeals his sentence of 60 months of imprisonment

imposed following his pleas of guilty for two counts of distributing a quantity of a

mixture or substance containing a detectable amount of cocaine base within 1,000

feet of a school, 21 U.S.C. §§ 841(a)(1), 860(a), and four counts of distributing 5

grams or more of a mixture or substance containing a detectable amount of

cocaine base within 1,000 feet of a school, id. Williams challenges the addition of

two points to his criminal history category for his convictions in a Florida court

that are under appeal. Williams also challenges the denial of his request for

sentencing under the Fair Sentencing Act of 2010, which increased from 5 to 28

grams the minimum amount of cocaine base required to impose a mandatory

minimum sentence of five years of imprisonment. We affirm the calculation of

Williams’s history category, but the recent decision of the Supreme Court in

Dorsey v. United States, 567 U.S. ____, 132 S. Ct. 2321, 2331 (2012), requires

that we vacate Williams’s sentence and remand for resentencing consistent with

the Act.

      The district court did not err in increasing Williams’s criminal history

category for his prior sentence of 115 days of imprisonment for possessing cocaine

and possessing less than 20 grams of cannabis. The Sentencing Guidelines

provide that “[p]rior sentences under appeal are counted” in computing the

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              Case: 11-11019     Date Filed: 09/21/2012   Page: 3 of 3

criminal history category. U.S.S.G. § 4A1.2(l). If Williams succeeds in having

his conviction vacated, he may move the district court to set aside or correct his

sentence. See 28 U.S.C. § 2255; United States v. Walker, 198 F.3d 811, 813–14

(11th Cir. 1999).

      As the government concedes, the district court erred by failing to sentence

Williams under the Fair Sentencing Act. After Williams appealed, the Supreme

Court held in Dorsey, 132 S. Ct. at 2331, that “Congress intended the . . . more

lenient penalties [under the Act] to apply to those offenders whose crimes

preceded August 3, 2010, but who are sentenced after that date.” Williams was

sentenced on February 28, 2011. Williams is entitled to the more lenient penalties

provided in the Act.

       We AFFIRM in part the calculation of Williams’s criminal history

category, but we VACATE Williams’s sentence and REMAND for resentencing.

      AFFIRMED IN PART, VACATED, AND REMANDED.




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