United States of America v. JOHN TYLER McKINNEY, SR.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0647n.06
No. 09-2212
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN TYLER McKINNEY, SR.,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
O P I N I O N
BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.
PER CURIAM. Defendant John McKinney, Sr., pleaded guilty to one count of distributing
five or more grams of cocaine base in violation of 21 U.S.C. § 841(a). His plea agreement preserved
his right to appeal a penalty enhancement that he received for a prior felony drug offense. He also
contends that the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (Aug.
3, 2010), should be applied retroactively to his sentence.
The panel has had the opportunity to consider the arguments advanced by the parties and to
conduct our own independent review of the record on appeal. In this case, the district court entered
an Order on April 29, 2009, which explains in detail why defendant’s prior conviction in Michigan
state court for possession of dihydrocodeinone qualifies as a prior “felony drug offense” under 21
U.S.C. § 841(b)(1)(B). We agree with the reasoning of the district court and affirm on that basis.
With respect to the second issue raised by defendant, a prior panel of this court has decided
that the FSA does not apply retroactively to cases on direct appeal. United States v. Carradine, 621

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No. 09-2212
United States v. McKinney
F.3d 575 (6th Cir. 2010). A panel of this court cannot overrule a published decision of another
panel. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Defendant
recognizes that Carradine is controlling authority but raises the issue to preserve it for possible en
banc review, which he is entitled to pursue.
The judgment of the district court is affirmed.
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