USA v. Joseph Benitez, No. 11-20419 (5th Cir. 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 4, 2012.
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Case: 11-20419 Document: 00511956491 Page: 1 Date Filed: 08/14/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 14, 2012 No. 11-20419 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOSEPH JOSE BENITEZ, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-97-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, JOLLY, and SMITH, Circuit Judges. PER CURIAM:* On January 4, 2012, we granted the Government s motion for summary affirmance, because we were bound by our precedent which held that the Fair Sentencing Act of 2010 (FSA) does not apply retroactively to a defendant who is * 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20419 Document: 00511956491 Page: 2 Date Filed: 08/14/2012 No. 11-30366 sentenced after the effective date of the FSA but whose offense preceded the FSA s effective date. United States v. Benitez, 456 F. App x 446 (5th Cir. 2012) (citing United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011)). After our opinion was issued, the Supreme Court held in Dorsey v. United States, 132 S. Ct. 2321 (2012), that the more lenient penalties of the FSA apply to offenders who committed offenses before the effective date of the FSA, but who were sentenced after that date. We therefore VACATE Benitez s sentence and REMAND this case for resentencing consistent with Dorsey. VACATED and REMANDED. 2
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