     Case: 11-60272     Document: 00511823930         Page: 1     Date Filed: 04/17/2012




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

                                                                            FILED
                                                                           April 17, 2012
                                     No. 11-60272
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DESMOND BURNETT,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-CR-22-1


Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
        Desmond Burnett pleaded guilty to distributing methamphetamine and
possessing with intent to distribute in excess of 5 grams of cocaine base. In his
sole issue on appeal, he contends that the district court erred by refusing to
apply the Fair Sentencing Act of 2010 (FSA) to his sentence. His argument is
foreclosed by our decision in United States v. Tickles, 661 F.3d 212, 215 (5th Cir.
2011), petitions for cert. filed (Dec. 15, 2011) (No. 11-8023) and (Dec. 27, 2011)
(No. 11-8268), which held that the FSA does not apply retroactively to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60272    Document: 00511823930     Page: 2   Date Filed: 04/17/2012

                                 No. 11-60272

defendants whose sentencing occurred after the FSA’s effective date but whose
offenses occurred before the effective date. Although the Supreme Court has
recently granted certiorari in two Seventh Circuit cases that held that the FSA
does not apply retroactively, our precedent is nevertheless binding. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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