USA v. Anthony Avery, Jr.

Filing

Opinion issued by court as to Appellant Anthony L. Avery, Jr.. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam.--[Edited 07/27/2012 by JRP]

Case: 11-11791

Date Filed: 07/26/2012

Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11791
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cr-00139-GAP-DAB-1
UNITED STATES OF AMERICA,
llllllllllllll

llllllllllllllllllllllllllPlaintiff-Appellee,
versus

ANTHONY L. AVERY, JR.,
a.k.a. Ricky,
lllllllllllllllllllllllllllllllll lll

Defendant-Appellant.

________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 26, 2012)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Anthony Avery appeals his sentence of 120 months of imprisonment

Case: 11-11791

Date Filed: 07/26/2012

Page: 2 of 2

following his plea of guilty for conspiring to possess with intent to distribute and
to distribute 50 grams or more of crack cocaine. 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), 846. Avery argues that the district court erred by sentencing
him to the mandatory minimum in effect at the time of his crime under the AntiDrug Abuse Act, instead of the mandatory minimum provided in the Fair
Sentencing Act, which took effect before Avery’s sentencing hearing. The
government confesses error. At sentencing, the district court stated that a 120month sentence was “rather harsh,” but the district court ruled that its “hands
[were] tied” and it had “no alternative” but to sentence Avery to the mandatory
term of imprisonment. After Avery appealed, the United States Supreme Court
held in Dorsey v. United States, 567 U.S. ____, 132 S. Ct. 2321, 2331 (2012), that
“Congress intended the . . . more lenient penalties [under the Fair Sentencing Act]
to apply to those offenders whose crimes preceded August 3, 2010, but who are
sentenced after that date.” Dorsey instructs that the Fair Sentencing Act applies to
Avery. We vacate Avery’s sentence and remand for resentencing.
VACATED AND REMANDED.

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