United States v. Desmond Burnett

Case: 11-60272 Document: 00512081812 Page: 1 Date Filed: 12/12/2012

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

FILED December 12, 2012 No. 11-60272 Conference Calendar Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

DESMOND BURNETT,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi No. 2:10-CR-22-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES, and SMITH, Circuit Judges. PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60272 Document: 00512081812 Page: 2 Date Filed: 12/12/2012

No. 11-60272

This court affirmed the judgment of sentence, United States v. Burnett, 466 F. App’x 381 (5th Cir. 2012) (per curiam), bound by United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011) (per curiam), which held that the Fair Sen- tencing Act of 2010 (“FSA”) does not apply retroactively to a defendant who is sentenced after the effective date of the FSA but whose offense preceded that effective date. The Supreme Court granted a writ of certiorari, vacated, and remanded for further consideration in light of Dorsey v. United States, 132 S. Ct. 2321 (2012). Burnett v. United States, 133 S. Ct. 323 (2012). In United States v. Berry, No. 11-51050, 2012 U.S. App. LEXIS 24615, at *2 (5th Cir. Nov. 26, 2012) (per curiam), this court announced that Tickles had been overruled by Dor- sey, which held 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 the judgment of sentence and REMAND for resen- tencing in accordance with Dorsey.