     Case: 10-30697 Document: 00511504724 Page: 1 Date Filed: 06/10/2011




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

                                                 FILED
                                                                            June 10, 2011
                                     No. 10-30697
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTHONY BENJAMIN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CR-105-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Anthony Benjamin pleaded guilty to possession with the intent to
distribute 50 grams or more of cocaine base, possession with the intent to
distribute 500 grams or more of cocaine hydrochloride, and possession of a
firearm by a convicted felon. As part of the plea agreement, Benjamin waived
his right to appeal his conviction and sentence or to contest his conviction and
sentence in any collateral proceeding, reserving the right to appeal a sentence
exceeding the statutory maximum punishment and the right to bring a collateral

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30697 Document: 00511504724 Page: 2 Date Filed: 06/10/2011

                                 No. 10-30697

challenge based on ineffective assistance of counsel bearing on the voluntariness
of his plea.
      On appeal, Benjamin argues that the Fair Sentencing Act of 2010 (FSA)
should be applied to cases on direct appeal and seeks to have his sentence
vacated and remanded for resentencing in accordance with the provisions of the
FSA. The Government argues that Benjamin’s appeal of this issue is precluded
by the appeal waiver. This court reviews the validity of an appeal waiver de
novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
      A defendant may waive his right to appeal if the waiver is made knowingly
and voluntarily. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Benjamin does not argue that the waiver was not made knowingly or
voluntarily. Benjamin argues that the waiver should not be enforced because it
would be against public policy to sentence a defendant based on a sentencing
system that was changed by the FSA. This argument is not persuasive because,
subsequent to the filing of Benjamin’s brief, this court issued a published
decision holding that the FSA does not apply to defendants who, like Benjamin,
were sentenced prior to its enactment. See United States v. Doggins, 633 F.3d
379, 384 (5th Cir. 2011).
      Benjamin argues that the appeal waiver does not apply because his
current appeal is analogous to an 18 U.S.C. § 3582(c)(2) motion and does not
challenge the legality of the sentence as imposed. See United States v. Cooley,
590 F.3d 293, 297 (5th Cir. 2009). This argument is incorrect factually as
Benjamin is not seeking a reduction in his sentence, but is seeking to have his
judgment of conviction vacated and the matter remanded for resentencing.
      Benjamin’s argument that he should have been sentenced in accordance
with the FSA is precluded by his waiver of his right to appeal his sentence.
      AFFIRMED.




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