                   Case: 11-11791           Date Filed: 07/26/2012      Page: 1 of 2

                                                                            [DO NOT PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE ELEVENTH CIRCUIT
                                   ________________________

                                              No. 11-11791
                                          Non-Argument Calendar
                                        ________________________

                          D.C. Docket No. 6:10-cr-00139-GAP-DAB-1

UNITED STATES OF AMERICA,

llllllllllllll                                             llllllllllllllllllllllllllPlaintiff-Appellee,

                                                  versus

ANTHONY L. AVERY, JR.,
a.k.a. Ricky,

lllllllllllllllllllllllllllllllll lll                                        Defendant-Appellant.

                                    ________________________

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

                                             (July 26, 2012)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

         Anthony Avery appeals his sentence of 120 months of imprisonment
              Case: 11-11791     Date Filed: 07/26/2012   Page: 2 of 2

following his plea of guilty for conspiring to possess with intent to distribute and

to distribute 50 grams or more of crack cocaine. 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(iii), 846. Avery argues that the district court erred by sentencing

him to the mandatory minimum in effect at the time of his crime under the Anti-

Drug Abuse Act, instead of the mandatory minimum provided in the Fair

Sentencing Act, which took effect before Avery’s sentencing hearing. The

government confesses error. At sentencing, the district court stated that a 120-

month sentence was “rather harsh,” but the district court ruled that its “hands

[were] tied” and it had “no alternative” but to sentence Avery to the mandatory

term of imprisonment. After Avery appealed, the United States Supreme Court

held in Dorsey v. United States, 567 U.S. ____, 132 S. Ct. 2321, 2331 (2012), that

“Congress intended the . . . more lenient penalties [under the Fair Sentencing Act]

to apply to those offenders whose crimes preceded August 3, 2010, but who are

sentenced after that date.” Dorsey instructs that the Fair Sentencing Act applies to

Avery. We vacate Avery’s sentence and remand for resentencing.

      VACATED AND REMANDED.




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