USA v. Joseph Benitez


UNPUBLISHED OPINION FILED. [11-20419 Affirmed ] Judge: CDK , Judge: EGJ , Judge: JES Mandate pull date is 01/25/2012 for Appellant Joseph Jose Benitez; granting motion for summary affirmance filed by Appellee USA [6956016-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6956016-3] [11-20419]

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Case: 11-20419 Document: 00511712747 Page: 1 Date Filed: 01/04/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-20419 Summary Calendar January 4, 2012 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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