                    Case: 10-14865         Date Filed: 07/30/2012   Page: 1 of 4


                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 10-14865
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 3:10-cr-00031-MCR-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

KEISHAUN D. IRBY,
a.k.a. Keezy,
a.k.a. Key,
a.k.a. "B",

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (July 30, 2012)

Before CARNES, KRAVITCH, and EDMONDSON, Circuit Judges.

PER CURIAM:
                Case: 10-14865   Date Filed: 07/30/2012   Page: 2 of 4

      Keishaun Irby pleaded guilty to possession with intent to distribute 50

grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii) (Count 1); possession of a firearm in furtherance of a drug-

trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 2); possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 3);

possession with intent to distribute cocaine base in violation of § 841(a)(1) and

(b)(1)(C) (Count 4); and possession of a firearm in furtherance of a

drug-trafficking crime in violation of § 924(c)(1) (Count 5). The district court

sentenced Dorsey to 114 months in prison on Counts 1, 3, and 4; a consecutive 30

months in prison on Count 2; and a consecutive 120 months in prison on Count 5.

He appeals his sentence for Counts 1, 3, and 4, contending that the district court

erred by concluding that the Fair Sentencing Act of 2010 did not apply

retroactively to his case. He also appeals his sentence for Count 5, contending that

Count 5 does not constitute a second or subsequent conviction under §

924(c)(1)(C).

                                          I.

      We turn first to Irby’s contention that the Fair Sentencing Act applied

retroactively to his case. In Dorsey v. United States, 567 U.S. —, — S.Ct —, Nos.

11-5683, 11-5721, 2012 WL 2344463, at *3 (U.S. June 21, 2012), the Supreme

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Court held that the Fair Sentencing Act’s “new, more lenient mandatory minimum

provisions . . . apply” to defendants who committed a crack cocaine crime before

the Act went into effect but whom the district court did not sentence until after it

went into effect. Dorsey committed his crack cocaine crimes before the Act went

into effect but was not sentenced until after it was effective. The district court

faithfully followed our precedent holding that the Fair Sentencing Act was not

applicable to cases like this one, but in light of Dorsey, we vacate Irby’s sentence

for Counts 1, 3, and 4, and remand for resentencing.1

                                               II.

       We next turn to Irby’s contention that Count 5 is not second or subsequent

conviction under § 924(c)(1)(C). If a defendant receives a “second or subsequent”

conviction under § 924(c), he is subject to a mandatory consecutive sentence of 25

years for that second conviction. 18 U.S.C. § 924(c)(1)(C). A district court may

deem one of two § 924(c) convictions charged in the same indictment as a “second

or subsequent” conviction under § 924(c)(1)(C). United States v. Phaknikone, 605

F.3d 1099, 1111–12 (11th Cir. 2010) (noting that we “long ago rejected” the

argument that a district court cannot impose a 25-year sentence under


       1
          Because we vacate Irby’s sentence for Counts 1, 3, and 4, we do not reach his contention
that the district court erred by concluding that two of his prior convictions constituted separate
offenses for the purpose of his sentence enhancement under § 841(b)(1)(A).

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§ 924(c)(1)(C) for a conviction contained in the same indictment as the other

§ 924(c) conviction); Deal v. United States, 508 U.S. 129, 134–35, 113 S.Ct.

1993, 1997–98 (1993). Thus, the district court did not err in considering one of

Irby’s two § 924(c) convictions a second or subsequent conviction under §

924(c)(1)(C) even though the two § 924(c) convictions were charged in the same

indictment.

                                        III.

      For the foregoing reasons, we VACATE Irby’s sentence on Counts 1, 3,

and 4, and REMAND for resentencing. We AFFIRM Irby’s sentence on Count 5.




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