              Case: 11-12679     Date Filed: 11/28/2012   Page: 1 of 3

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 11-12679
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 3:09-cr-00091-TJC-JRK-1

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                       versus

JUSTIN CHRISTOPHER TURNER,

                                                           Defendant-Appellant.

                           ________________________

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

                               (November 28, 2012)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Justin Turner appeals his 120-month sentence, which the district court

imposed after he pled guilty to distributing cocaine base, in violation of 21 U.S.C.
              Case: 11-12679     Date Filed: 11/28/2012    Page: 2 of 3

§ 841(a)(1). Turner, who had a prior conviction for selling or delivering cocaine,

sold 15.2 grams of cocaine base to a cooperating individual on December 12, 2008,

but the district court did not sentence him until March 22, 2011. He now argues

that the district court erred by not retroactively applying the Fair Sentencing Act of

2010 (“FSA”), under which he would not be subject to a statutory-minimum

sentence of 120 months’ imprisonment.

      We review de novo the application of the law to sentencing issues. See

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

FSA, a defendant that distributed 5 or more grams of cocaine base was subject to

5 to 40 years’ imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii) (Aug. 2, 2010). This

range was enhanced to 10 years’ to life imprisonment if the defendant committed

his offense after a prior conviction for a felony drug offense became final. Id.

Congress enacted the FSA on August 3, 2010, and changed the

crack-to-powder-cocaine ratio from 100-to-1 to about 18-to-1. Pub. L. No.

111-220, 124 Stat. 2372 (2010); See also United States v. Gomes, 621 F.3d 1343,

1346 (11th Cir. 2010). The FSA amended § 841(b)’s sentencing provisions, and

raised from 5 to 28 grams the amount of cocaine base necessary to trigger the

5-year statutory minimum. Gomes, 621 F.3d at 1346; Compare 21 U.S.C.

§ 841(b)(1)(B)(iii) (Aug. 2, 2010), with 21 U.S.C. § 841(b)(1)(B)(iii) (2011).

Currently, a defendant that distributed less than 28 grams of cocaine base is subject


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to a statutory-maximum penalty of 20 years’ imprisonment, or 30 years’

imprisonment if he committed his offense after a prior conviction for a felony drug

offense became final. 21 U.S.C. § 841(b)(1)(C) (2011). Such a defendant is not

subject to a statutory-minimum sentence of imprisonment. Id.

       The U.S. Supreme Court, on June 21, 2012, held that the FSA applies to

those defendants who committed their offense prior to the FSA’s enactment, but

who were sentenced after the date of its enactment. Dorsey v. United States, 567

U.S.    , 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012). Accordingly, the district

court erred by not sentencing Turner pursuant to the FSA’s provisions, and this

error was not harmless, requiring that we vacate Turner’s sentence and remand for

resentencing.

       VACATED AND REMANDED.




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