            Case: 10-13769    Date Filed: 09/10/2012   Page: 1 of 7

                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 10-13769
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 2:09-cr-00271-LSC-HGD-1



UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

                                    versus

MICHAEL DONNELL SUMERLIN,

                                                       Defendant - Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                             (September 10, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

     Michael Donnell Sumerlin was convicted in January 2010 for distributing
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50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a) and

(b)(1)(A) (2009). The probation officer’s presentence investigation report (PSI)

attributed to Sumerlin 126 grams of crack cocaine and noted his status as a career

offender. Accordingly, the PSI indicated that Sumerlin faced a mandatory life

sentence under the then-current version of § 841(b)(1)(A).

      Congress enacted the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-

120, 124 Stat. 2372, 2372 (2010), in order to decrease the sentencing disparity

between crack and powder cocaine offenses. The Act, which lowered the

mandatory minimum sentences that applied to crack-cocaine offenses, including

those under § 841(b)(1)(A), became effective on August 3, 2010. At Sumerlin’s

sentencing hearing two days later, however, the district court did not sentence

Sumerlin under the FSA’s new sentencing structure, instead imposing the

mandatory life sentence under the old version of § 841(b)(1)(A).

      Sumerlin appealed, arguing that, because the FSA went into effect before he

was sentenced, he was entitled to a sentence in accordance with the Act. Sumerlin

contended that, under the new law, he would be subject to only a 10-year

mandatory minimum, rather than a mandatory life sentence. Compare 21 U.S.C.

§ 841(b)(1)(A) (2006) with 21 U.S.C. § 841(b)(1)(B) (2006 & Supp. V 2012).

      In April 2011, this court issued an unpublished opinion affirming

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Sumerlin’s mandatory life sentence. United States v. Sumerlin, 424 F. App’x 904

(11th Cir. 2011) (unpublished). In that opinion, this court stated:

      Prior to enactment of the FSA, defendants who had two prior felony
      drug convictions when they committed an offense involving 50 grams
      or more of crack cocaine faced a mandatory term of life imprisonment.
      21 U.S.C. § 841(b)(1)(A)(2009). The FSA did not amend the
      requirement that, once triggered, statutory mandatory-minimum
      sentences apply. See United States v. Gomes, 621 F.3d 1343, 1346 (11th
      Cir. 2010). The FSA contains no language indicating its application to
      offenses committed before its enactment. See generally 124 Stat. 2372.
             The general savings statute provides in relevant part that “[t]he
      repeal of any statute shall not have the effect to release or extinguish any
      penalty . . . incurred under such statute, unless the repealing Act shall so
      expressly provide.” 1 U.S.C. § 109. In Gomes, we held that § 109
      barred the FSA from applying retroactively to the defendant’s
      punishment because he committed his crimes before the FSA took
      effect. Gomes, 621 F.3d at 1346.
             ....
             Under the prior precedent rule, we are bound to follow prior
      precedent “unless and until it is over-ruled by this court en banc or by
      the Supreme Court.” United States v. Vega–Castillo, 540 F.3d 1235,
      1236 (11th Cir. 2008) (quoting United States v. Brown, 342 F.3d 1245,
      1246 (11th Cir. 2003)). Therefore, the district court did not plainly err
      in sentencing Sumerlin under the pre-FSA version of 21 U.S.C.
      § 841(b)(1)(A).

Id. at 905-06. We denied his petition for rehearing on June 22, but the mandate

was held.

      On July 6, this court decided in a published opinion that the FSA applies to

those, like Sumerlin, who committed their offenses prior to the FSA’s effective

date but were sentenced after that date. United States v. Rojas, 645 F.3d 1234,

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1236 (11th Cir. 2011), reh’g en banc granted, 659 F.3d 1055 (11th Cir. 2011).

Then, on October 4, 2011, this court vacated Rojas for rehearing en banc. Rojas,

659 F.3d at 1055.

      Before this court could hear the Rojas case en banc, however, the Supreme

Court granted certiorari in two cases to address whether the FSA should apply to

defendants convicted before, but sentenced after, it took effect. See Hill v. United

States, 132 S. Ct. 759 (2011); Dorsey v. United States, 132 S. Ct. 759 (2011).

      The Supreme Court has now resolved the issue, holding that the FSA’s

reduced sentences apply to defendants who committed their offenses before the

Act’s effective date, August 3, 2010, but were sentenced thereafter. Dorsey v.

United States, __ S. Ct. __, No. 11-5683, 2012 WL 2344463, at *14 (U.S. June 21,

2012). We now address Sumerlin’s appeal in light of the Supreme Court’s

decision.

      At the sentencing hearing, Sumerlin’s counsel did not object to the district

court’s sentence based on the FSA, so we review only for plain error. United

States v. Olano, 507 U.S. 725, 733-34 (1993). “Under that test, . . . there must be

(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v.

United States, 520 U.S. 461, 466-67 (1997) (internal quotation marks omitted). If

these conditions are met, we may then exercise our discretion to recognize the

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error, but only if it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007) (internal quotation marks omitted).

      Because the mandate has not yet issued, Sumerlin’s appeal remains pending

in this court. Thus, the Supreme Court’s decision in Dorsey, decided while

Sumerlin’s case remained under our consideration, makes plain that it was error to

sentence Sumerlin under the pre-FSA crack-cocaine sentence structure. Dorsey,

2012 WL 2344463, at *14-15. In prior cases, we have held that “[a]lthough the

error was not ‘plain’ at the time of sentencing, ‘where the law at the time of trial

was settled and clearly contrary to the law at the time of appeal–it is enough that

the error be ‘plain’ at the time of appellate consideration.’” United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (quoting Johnson v. United

States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997)). Although the error was

not plain at the time of the first Sumerlin opinion, the error is plain now and the

second prong is met.

      And there can be no dispute that this error affects Sumerlin’s substantial

rights: under the FSA, Sumerlin was subject only to a mandatory 10-year

minimum sentence, rather than the mandatory life sentence he received. See 21

U.S.C. § 841(b)(1)(A); United States v. Rodriguez, 406 F.3d 1261, 1262-63 (11th

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Cir. 2005) (explaining that an error affects substantial rights when it “affected the

outcome of district court proceedings” (internal quotation marks omitted)). But, at

Sumerlin’s sentencing hearing, the district court remarked, “the only sentence

that’s provided by law for your situation is life in prison, and there is no lower

sentence that I am permitted by law to give you.” Had Sumerlin been sentenced

under the FSA’s new sentencing structure, however, the district court could in fact

have considered a substantially lower sentence.

      Finally, we conclude that the error in this case seriously affects the fairness,

integrity, and public reputation of judicial proceedings. As the Court in Dorsey

made clear, failure to apply the FSA to defendants in Sumerlin’s situation “would

seriously undermine basic Federal Sentencing Guidelines objectives such as

uniformity and proportionality in sentencing.” Dorsey, 2012 WL 2344463, at *4.

In this case, Sumerlin received a mandatory sentence far above what he was

required to receive under the FSA. If we fail to recognize the error, Sumerlin’s

mandatory life sentence, imposed under a sentencing scheme that Congress had

already rejected, would deeply offend our shared notions of justice. We therefore

hold that Sumerlin has satisfied each element of our plain error standard, and we

exercise our discretion to recognize the error.

      Accordingly, we vacate the prior opinion of this panel. We also vacate

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Sumerlin’s sentence and remand for re-sentencing consistent with the Supreme

Court’s holding in Dorsey.1

      VACATED AND REMANDED.




      1
          Sumerlin’s motion to remand is therefore denied as moot.

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