     Case: 11-40516       Document: 00512085673         Page: 1     Date Filed: 12/17/2012




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

                                                                            FILED
                                                                        December 17, 2012

                                     No. 11-40516                          Lyle W. Cayce
                                  Conference Calendar                           Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MALONE BURNS,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-135-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
       On April 17, 2012, we affirmed Burns’s sentence because we were bound
by our precedent which held that the Fair Sentencing Act of 2010 (FSA) does not
apply retroactively to a defendant who is sentenced after the effective date of the
FSA but whose offense preceded the FSA’s effective date. United States v.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40516     Document: 00512085673     Page: 2   Date Filed: 12/17/2012



                                  No. 11-40516

Burns, 467 F. App’x 265 (5th Cir. 2012) (citing United States v. Tickles, 661 F.3d
212, 214-15 (5th Cir. 2011)).
      After our opinion was issued, the Supreme Court held in Dorsey v. United
States, 132 S. Ct. 2321 (2012), that the more lenient penalties of the FSA apply
to offenders who committed offenses before the effective date of the FSA, but who
were sentenced after that date. The Supreme Court granted certiorari, vacated
the judgment, and remanded for further consideration in the light of Dorsey.
Burns v. United States, 2012 WL 3018574 (U.S. Oct. 1, 2012). We therefore
VACATE Burns’s sentence and REMAND this case for resentencing consistent
with Dorsey.
                                                  VACATED and REMANDED.




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