Case: 11-11019 Date Filed: 09/21/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11019
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00041-JDW-AEP-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CEDRIC WILLIAMS,
a.k.a. Pain,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 21, 2012)
Before PRYOR, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-11019 Date Filed: 09/21/2012 Page: 2 of 3
Cedric Williams appeals his sentence of 60 months of imprisonment
imposed following his pleas of guilty for two counts of distributing a quantity of a
mixture or substance containing a detectable amount of cocaine base within 1,000
feet of a school, 21 U.S.C. §§ 841(a)(1), 860(a), and four counts of distributing 5
grams or more of a mixture or substance containing a detectable amount of
cocaine base within 1,000 feet of a school, id. Williams challenges the addition of
two points to his criminal history category for his convictions in a Florida court
that are under appeal. Williams also challenges the denial of his request for
sentencing under the Fair Sentencing Act of 2010, which increased from 5 to 28
grams the minimum amount of cocaine base required to impose a mandatory
minimum sentence of five years of imprisonment. We affirm the calculation of
Williams’s history category, but the recent decision of the Supreme Court in
Dorsey v. United States, 567 U.S. ____, 132 S. Ct. 2321, 2331 (2012), requires
that we vacate Williams’s sentence and remand for resentencing consistent with
the Act.
The district court did not err in increasing Williams’s criminal history
category for his prior sentence of 115 days of imprisonment for possessing cocaine
and possessing less than 20 grams of cannabis. The Sentencing Guidelines
provide that “[p]rior sentences under appeal are counted” in computing the
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Case: 11-11019 Date Filed: 09/21/2012 Page: 3 of 3
criminal history category. U.S.S.G. § 4A1.2(l). If Williams succeeds in having
his conviction vacated, he may move the district court to set aside or correct his
sentence. See 28 U.S.C. § 2255; United States v. Walker, 198 F.3d 811, 813–14
(11th Cir. 1999).
As the government concedes, the district court erred by failing to sentence
Williams under the Fair Sentencing Act. After Williams appealed, the Supreme
Court held in Dorsey, 132 S. Ct. at 2331, that “Congress intended the . . . more
lenient penalties [under the Act] to apply to those offenders whose crimes
preceded August 3, 2010, but who are sentenced after that date.” Williams was
sentenced on February 28, 2011. Williams is entitled to the more lenient penalties
provided in the Act.
We AFFIRM in part the calculation of Williams’s criminal history
category, but we VACATE Williams’s sentence and REMAND for resentencing.
AFFIRMED IN PART, VACATED, AND REMANDED.
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