Case: 11-40516 Document: 00512085673 Page: 1 Date Filed: 12/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2012
No. 11-40516 Lyle W. Cayce
Conference Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MALONE BURNS,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-135-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
On April 17, 2012, we affirmed Burns’s sentence 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 sentenced after the effective date of the
FSA but whose offense preceded the FSA’s effective date. United States v.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40516 Document: 00512085673 Page: 2 Date Filed: 12/17/2012
No. 11-40516
Burns, 467 F. App’x 265 (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. The Supreme Court granted certiorari, vacated
the judgment, and remanded for further consideration in the light of Dorsey.
Burns v. United States, 2012 WL 3018574 (U.S. Oct. 1, 2012). We therefore
VACATE Burns’s sentence and REMAND this case for resentencing consistent
with Dorsey.
VACATED and REMANDED.
2