     Case: 10-30920     Document: 00511952763         Page: 1     Date Filed: 08/10/2012




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

                                                                            FILED
                                                                          August 10, 2012

                                       No. 10-30920                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

LANCE BENNETT,

                                                  Defendant–Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-177-2


                  ON REMAND FROM THE SUPREME COURT
                        OF THE UNITED STATES

Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
        This court affirmed the life sentence imposed on Defendant–Appellant
Lance Bennett by the district court. United States v. Bennett, 664 F.3d 997,
1014–15 (5th Cir. 2011).         The Supreme Court vacated and remanded the
judgment of this court, instructing that we reconsider the case in light of Dorsey
v. United States, 132 S. Ct. 2321 (2012). Bennett v. United States, ___ S. Ct. ___,


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30920      Document: 00511952763         Page: 2    Date Filed: 08/10/2012



                                      No. 10-30920

2012 WL 1190577 (June 29, 2012). In Dorsey, the Supreme Court held that the
Fair Sentencing Act of 2010 (“FSA”) applies “to the post-Act sentencing of pre-
Act offenders,” id. at 2335, abrogating this court’s opinion in United States v.
Tickles, 661 F.3d 212, 215 (5th Cir. 2011). In our prior opinion in this case, we
relied on Tickles in rejecting Bennett’s challenge to his sentence under the FSA.1
Bennett, 664 F.3d at 1015.
       The jury convicted Bennett of participating in a drug conspiracy involving
at least 50 grams of cocaine base. Under the version of 21 U.S.C. § 841 in effect
before the FSA was enacted, any person convicted of such a conspiracy who also
had been convicted of two prior felony drug offenses—like Bennett—was subject
to a mandatory term of life imprisonment. The district court sentenced Bennett
pursuant to that provision. The FSA increased the quantity of cocaine base
necessary to trigger that mandatory life provision to 280 grams. Because Dorsey
mandates that the FSA apply to Bennett, his conviction for a conspiracy
involving at least 50 grams of cocaine base is insufficient to trigger the
mandatory life provision.
       Despite our prior reliance on now-abrogated Tickles, we can dispose of this
case without remanding for resentencing. Although the district court sentenced
Bennett to a term of life imprisonment pursuant to the mandatory life provision,
it explained that, considering the 18 U.S.C. § 3553(a) factors, it would have
departed from the Guidelines and imposed the same sentence even if the FSA
applied. Under the FSA, Bennett’s statutorily authorized sentencing range is
10 years to life. 21 U.S.C. § 841(b)(1)(B). And under the Sentencing Guidelines




       1
         The other two defendants involved in this case, Dalton Bennett and Danquell Miller,
did not challenge their sentences under the FSA, and therefore Dorsey does not disturb our
prior opinion affirming their convictions and sentences.

                                             2
   Case: 10-30920        Document: 00511952763            Page: 3   Date Filed: 08/10/2012



                                        No. 10-30920

promulgated pursuant to the FSA, the applicable Guidelines range would have
been 188–235 months.2
       We review sentences for procedural error and substantive reasonableness.
See United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). Bennett argues
that his life sentence was excessive, and therefore substantively unreasonable.
“Appellate review for substantive reasonableness is highly deferential, because
the sentencing court is in a better position to find facts and judge their import
under the § 3553(a) factors with respect to a particular defendant.” Id. (internal
quotation marks omitted). Our review is for an abuse of discretion. Id.
       The district court justified Bennett’s life sentence during his sentencing
hearing by stating:
       Lance Bennett was tried and convicted in Federal Court as an adult
       for participating in a drug conspiracy and a conspiracy to obstruct
       justice. Not only did Lance Bennett do these acts after he had
       already pled guilty to two separate felony drug convictions, he
       continued his criminal behavior while he was in prison. Indeed,
       while in jail, he directed his girlfriend to sell crack cocaine so that
       she could raise enough money to bond him out of jail. Based on the
       tape recorded telephone calls that were introduced into evidence
       during the trial, Lance Bennett planned on going right back to
       selling crack cocaine when he got out of prison. The recidivist
       statute, such as Section 851 of Title 21, was designed to remove
       offenders such as this from society. Thus, . . . the Court finds that
       a life sentence for an adult recidivist is not a cruel or unusual
       punishment.
                                          .     .     .
       In imposing this sentence, the Court has considered under 18,
       United States Code, Section 3553(a)(4), the sentencing range under
       the U.S. Sentencing Guidelines applicable to this defendant, as well
       as the other statutory concerns found in Section 3553(a). . . .


       2
        Bennett would have had a base offense level of 26, U.S. Sentencing Guidelines Manual
§ 2D1.1(c), with enhancements for being a leader, id. at § 3B1.1(a), and obstructing justice, id.
at § 3C1.1, for a total offense level of 32. With his level V criminal history category, Bennett’s
Guidelines range would have been 188–235 months. Id. at ch. 5, pt. A.

                                                3
   Case: 10-30920   Document: 00511952763      Page: 4   Date Filed: 08/10/2012



                                  No. 10-30920

      The instant offense represents the defendant’s fourth felony
      conviction. He has prior felony convictions for possession of crack,
      possession of hydrocodone, and illegal possession of stolen firearms.
      The defendant was adjudicated delinquent, as a juvenile. The
      defendant has an extensive criminal history, which began when he
      was only 15 years old. His criminal history reflects a pattern of
      escalating criminal activity involving guns and drugs. Further,
      because he has at least two prior felony convictions for a controlled
      substance offense, he is subject to an enhanced sentence under Title
      21. . . .
      The Court finds that the sentence imposed, which commits Lance
      Bennett to life imprisonment, reflects the nature and specific
      circumstances of the offense, the seriousness of the offense, and the
      defendant’s extensive criminal history. This sentence promotes
      respect for the law, provides just punishment, affords adequate
      deterrence, and protects the public. The Court further notes that,
      for the reasons previously stated, this would be Lance Bennett’s
      sentence regardless of whether the FSA applies retroactively and
      regardless of any impact on the defendant’s guideline range.
Given the district court’s due consideration of the § 3553(a) factors, the serious
nature of Bennett’s offense, and his extensive criminal history, we conclude that
the district court did not abuse its discretion in imposing a term of life
imprisonment.
      For the foregoing reasons we affirm the district court’s judgment of
conviction and sentence.
      AFFIRMED.




                                        4
