United States v. Joseph Benitez , 456 F. App'x 446 ( 2012 )

Case: 11-20419 Document: 00511712747 Page: 1 Date Filed: 01/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 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
Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
Joseph Jose Benitez presents arguments that he concedes are foreclosed
by United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011), 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. Benitez raises his arguments solely to
preserve them for further review. The Government has moved for summary
affirmance, or for an extension of time to file a brief.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 00511712747 Page: 2 Date Filed: 01/04/2012
No. 11-20419
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.
2