USA v. Anthony L. Avery, Jr., No. 11-11791 (11th Cir. 2012)

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Case: 11-11791 Date Filed: 07/26/2012 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-11791 Non-Argument Calendar ________________________ D.C.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. ยงยง 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 AntiDrug 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 120month 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. 2

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