     Case: 11-51050   Document: 00512062649     Page: 1   Date Filed: 11/26/2012




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

                                                                   FILED
                                                                November 26, 2012

                                 No. 11-51050                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

JONATHAN BERRY

                                           Defendant-Appellant



             Appeal from the United States District Court for the
                          Western District of Texas


Before JOLLY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:
      On August 3, 2011, Defendant-Appellant Jonathan Berry (“Berry”) pleaded
guilty to possession of more than five grams of cocaine base, in violation of 21
U.S.C. § 844(a). The conduct giving rise to the offense took place before August
19, 2008, the date of Berry’s initial indictment. On October 21, 2011, Berry was
sentenced to sixty months imprisonment, three years of supervised release, a
$3,000 fine, and a $100 special assessment. Berry appealed his sentence.
                                 ANALYSIS
      Under the version of 21 U.S.C. § 844(a) in place until August 2, 2010,
possession of more than five grams of cocaine base was punishable by a sentence
of five to twenty years imprisonment. However, the Fair Sentencing Act of 2010
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                                 No. 11-51050

(“FSA”) modified 21 U.S.C. § 844(a) to remove the provision specific to cocaine
base. Under the current version of 21 U.S.C. § 844(a), possession of any
controlled substance other than flunitrazepam is punishable by imprisonment
for up to one year with no prior drug convictions; up to two years with one prior
drug conviction; and up to three years with two prior drug convictions.
      Berry appealed his sentence, arguing that he should have been sentenced
under the version of 21 U.S.C. § 844(a) in effect at the time of his sentencing
rather than under the earlier version in effect at the time of his offense. Berry
recognized that his argument was foreclosed by this court’s decision in United
States v. Tickles, 661 F.3d 212, 215 (5th Cir. 2011), which held that “the
penalties prescribed by the FSA do not apply to federal criminal sentencing for
illegal conduct that preceded the FSA’s enactment.” However, on June 21, 2012,
the Supreme Court overruled Tickles, holding that the FSA’s “more lenient
mandatory minimum provisions do apply to . . . pre-Act offenders.” Dorsey v.
United States, 132 S. Ct. 2321, 2326 (2012).
      In Dorsey, the Supreme Court dealt only with 21 U.S.C. § 841, which
prohibits possession of controlled substances with intent to distribute, and did
not specifically address the FSA’s changes to the simple possession statute, §
844. Nevertheless, this court has no difficulty in concluding, based on Dorsey,
that the more lenient post-FSA version of 21 U.S.C. § 844 applies to offenders
sentenced after the FSA’s enactment. To hold otherwise would lead to the
anomalous result of simple possession being punished more severely than
possession with intent to distribute: possession of more than five grams of
cocaine base would carry a five-year mandatory minimum sentence, whereas
possession with intent to distribute of up to twenty-eight grams of cocaine base
carries no mandatory minimum. Our holding is consistent with those of the
other two circuit courts to consider the issue. See United States v. Duncan, 684



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                                 No. 11-51050

F.3d 1363, 1364 (8th Cir. 2012); United States v. Smith, 2012 WL 2864409 at *3
(11th Cir. July 12, 2012).
                               CONCLUSION
      Berry’s five-year term of imprisonment exceeds the maximum term of
imprisonment authorized by the post-FSA version of 21 U.S.C. § 844(a).
Furthermore, Berry’s three-year term of supervised release exceeds the
maximum authorized term of supervised release. See 18 U.S.C. 3583(b)(3),
3559(a)(5) & 3559(a)(6).     Accordingly, we VACATE Berry’s sentence and
REMAND the case to the district court for resentencing.




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