IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30697

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTHONY BENJAMIN,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CR-105-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Anthony Benjamin pleaded guilty to possession with the intent to

distribute 50 grams or more of cocaine base, possession with the intent to

distribute 500 grams or more of cocaine hydrochloride, and possession of a

firearm by a convicted felon. As part of the plea agreement, Benjamin waived

his right to appeal his conviction and sentence or to contest his conviction and

sentence in any collateral proceeding, reserving the right to appeal a sentence

exceeding the statutory maximum punishment and the right to bring a collateral

United States Court of Appeals

Fifth Circuit

F I L E D

June 10, 2011

Lyle W. Cayce

Clerk

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: 10-30697 Document: 00511504724 Page: 1 Date Filed: 06/10/2011
No. 10-30697

challenge based on ineffective assistance of counsel bearing on the voluntariness

of his plea.

On appeal, Benjamin argues that the Fair Sentencing Act of 2010 (FSA)

should be applied to cases on direct appeal and seeks to have his sentence

vacated and remanded for resentencing in accordance with the provisions of the

FSA. The Government argues that Benjamin’s appeal of this issue is precluded

by the appeal waiver. This court reviews the validity of an appeal waiver de

novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).

A defendant may waive his right to appeal if the waiver is made knowingly

and voluntarily. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).

Benjamin does not argue that the waiver was not made knowingly or

voluntarily. Benjamin argues that the waiver should not be enforced because it

would be against public policy to sentence a defendant based on a sentencing

system that was changed by the FSA. This argument is not persuasive because,

subsequent to the filing of Benjamin’s brief, this court issued a published

decision holding that the FSA does not apply to defendants who, like Benjamin,

were sentenced prior to its enactment. See United States v. Doggins, 633 F.3d

379, 384 (5th Cir. 2011).

Benjamin argues that the appeal waiver does not apply because his

current appeal is analogous to an 18 U.S.C. § 3582(c)(2) motion and does not

challenge the legality of the sentence as imposed. See United States v. Cooley,

590 F.3d 293, 297 (5th Cir. 2009). This argument is incorrect factually as

Benjamin is not seeking a reduction in his sentence, but is seeking to have his

judgment of conviction vacated and the matter remanded for resentencing.

Benjamin’s argument that he should have been sentenced in accordance

with the FSA is precluded by his waiver of his right to appeal his sentence.

AFFIRMED.

2

Case: 10-30697 Document: 00511504724 Page: 2 Date Filed: 06/10/2011