NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1812
_____________
UNITED STATES OF AMERICA
v.
RICHARD REEVEY,
also known as Richard Reavey,
Richard Reevey,
Appellant
_____________
Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 3-08-527-1)
District Judge: Honorable Joel A. Pisano
_____________
No. 10-1834
_____________
UNITED STATES OF AMERICA
v.
ANTHONY WILLIAMS,
a/k/a CHICK,
Anthony Williams,
Appellant
______________
Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 3-08-445-2)
District Judge: Honorable Joel A. Pisano
_____________
Submitted Pursuant to LAR 34.1(a)
November 19, 2010
Before: BARRY, CHAGARES, and VANASKIE, Circuit Judges
(Filed December 14, 2010)
______________
OPINION OF THE COURT
______________
VANASKIE, Circuit Judge.
These consolidated appeals present the question of whether the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (“FSA”), may be applied
retroactively to authorize the District Court to impose a sentence below the prescribed
mandatory minimum prison term in effect at the time the Appellants were sentenced. We
answer the question in the negative, and thus affirm the sentences imposed by the District
Court.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our analysis.
On December 7, 2009, Appellant Richard Reevey pled guilty to a charge of
conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§
841(a), 841(b)(1)(B), and 846. Section 841(b)(1)(B) of Title 21 U.S.C. prescribes a
mandatory minimum prison term of five years and a maximum prison term of forty
2
years.1 Reevey stipulated in his plea agreement that his offense conduct, which occurred
in March of 2007, included 10.8 grams of cocaine base. On March 11, 2010, the District
Court sentenced Reevey to the mandatory minimum term of five years.
On August 26, 2009, Appellant Anthony Williams entered a plea of guilty to a
superseding Information charging him with conspiracy to distribute and possess with
intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 846. Williams‟ criminal conduct took place between August
of 2007 and January of 2008. In his plea agreement, Williams stipulated that “the offense
and relevant conduct involved between 5 and 20 grams of cocaine base.” (A. 42.)
Hence, Williams was also subject to the mandatory minimum prison term. On March 11,
2010, Williams was sentenced to the five-year mandatory minimum sentence.
Responding to Williams‟ request for a downward departure based on the disparity in
treatment between crack and powder cocaine offenders, the District Court, after noting
that the “issue has been taken up by Congress,” declined to grant a downward departure.
(A. 93.)
Both Reevey and Williams appealed their sentences, arguing that the District
Court erred in refusing to impose a sentence below the statutory mandatory prison term
1
Section 846 of Title 21 U.S.C. provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the attempt
or conspiracy.” Thus, a conspiracy to distribute the minimum quantity of crack cocaine
triggering a mandatory prison term of at least five years carries with it the same sentence
as the substantive drug trafficking crime delineated in 21 U.S.C. § 841(b)(1)(B).
3
of five years.2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We
have jurisdiction under 18 U.S.C. § 3742(a).
II.
Ordinarily, district court sentences are reviewed under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Where, however, the
challenge to the sentence concerns the interpretation of a statute, we exercise plenary
review. See United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008).3
Reevey argues on appeal that the District Court failed to adequately consider the
18 U.S.C. § 3553(a) factors when imposing the mandatory minimum sentence. Williams
claims on appeal that his sentence was unreasonable because the District Court did not
recognize the “scientific and constitutional flaws” in the crack cocaine sentencing
guidelines, and “[i]n the event that the [FSA is passed] during the pendency of this
appeal, the sentence that was imposed will be an illegal sentence.” (Williams‟ Br. at 18.)
Appellants‟ arguments presuppose the existence of discretionary authority to
impose a prison term of less than five years in these cases. As the government notes,
however, statutory mandatory minimum sentences are binding law and are to be enforced
except in limited circumstances which are inapplicable here.
2
We consolidated the appeals of Reevey, No. 10-1812, and Williams, No. 10-1834, by
order dated August 30, 2010.
3
The government asserts that Reevey and Williams failed to preserve challenges to their
sentences so that our review must be limited to plain error. See United States v. Hawes,
523 F.3d 245, 249 (3d Cir. 2008). Because we discern no error by the District Court,
plain or otherwise, there is no need to determine whether Appellants‟ present arguments
were sufficiently preserved in the District Court.
4
Reevey‟s invocation of the § 3553(a) factors is foreclosed by United States v.
Kellum, 356 F.3d 285, 289-90 (3d Cir. 2004), where, in affirming the District Court‟s
sentence, we held that “it is now clear that § 3553(a) did not give the district court the
authority to sentence [appellant] below the statutorily mandated minimum sentence[.]”
Indeed, “it is clear that Congress intended that mandatory minimum sentences are not to
be affected by the general considerations of § 3553(a)(2) because that statute provides the
authority for the district court to depart below the statutorily mandated minimum
sentence.” Id. at 289. Under 18 U.S.C. § 3553(e), upon a substantial assistance motion
by the government, “the court shall have the authority to impose a sentence below a level
established by statute as a minimum sentence . . . .” Additionally, under § 3553(f), a
court “shall impose a sentence . . . without regard to any statutory minimum sentence” if
the “safety valve” factors are satisfied.4 18 U.S.C. § 3553(f); see Kellum, 356 F.3d at
4
The factors include:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant
to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and
was not engaged in a continuing criminal enterprise, as defined in section
408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan, but the fact that the
defendant has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a
5
289. “These two narrow exceptions are the only authority a district court has to depart
below a mandatory minimum sentence . . . .” Kellum, 356 F.3d at 289 (citing United
States v. Santiago, 201 F.3d 185, 187 (3d Cir. 1999); United States v. Villar, 184 F.3d
801, 803 (8th Cir. 1999)). It is undisputed that the government did not file substantial
assistance motions in either case and neither Reevey nor Williams qualify for application
of the § 3553(f) “safety valve.” Therefore, the two narrow exceptions to imposing the
statutory mandatory minimum sentence are inapplicable.
As we recognized in United States v. Gunter, 462 F.3d 237, 248 (3d Cir. 2006),
unlike the advisory sentencing guidelines range, “the statutory minimum drug trafficking
penalty in 21 U.S.C. § 841(b) . . . is mandatory . . . .” See also Kimbrough v. United
States, 552 U.S. 85, 102-03 (2007) (“A person convicted of possession with intent to
distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years. .
. .”) (emphasis added). Thus, the District Court was obligated to impose five-year prison
terms in these cases.
III.
On August 3, 2010, approximately four months after Appellants were sentenced,
the President signed the FSA into law. Pertinent to these consolidated appeals, the FSA
amended the minimum amount of crack cocaine necessary to trigger the five-year
mandatory minimum prison term from five grams to twenty eight grams. FSA § 2(a)(2).
determination by the court that the defendant has complied with this
requirement.
18 U.S.C. § 3553(f). In light of their prior convictions, neither Reevey nor Williams
qualified for application of the safety valve.
6
Reevey‟s acknowledged distribution of 10.8 grams of crack and Williams‟ stipulation to
responsibility for between five and twenty grams of cocaine base would not trigger the
five-year mandatory minimum sentence under the FSA. Reevey and Williams argue that
the FSA should be applied to them.
The government asserts that retroactive application of the FSA is precluded by the
general “Savings Statute” found at 1 U.S.C. § 109. The Savings Statute, in pertinent part,
provides:
The repeal of any statute shall not have the effect to release or extinguish
any penalty, forfeiture, or liability incurred under such statute, unless the
repealing Act shall so expressly provide, and such statute shall be treated as
still remaining in force for the purpose of sustaining any proper action or
prosecution for the enforcement of such penalty, forfeiture, or liability.
1 U.S.C. § 109. In effect, the Savings Statute mandates that a court apply the penalties in
place at the time the crime was committed unless the new law expressly provides
otherwise. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974). As
the Court in Marrero observed, the Savings Statute “has been held to bar application of
ameliorative criminal sentencing laws repealing harsher ones in force at the time of the
commission of an offense.” Id. (citations omitted). Moreover, the Savings Statute is
applicable to statutory amendments. United States v. Jacobs, 919 F.2d 10, 12-13 (3d Cir.
1990). In Jacobs, we held that the District Court could not apply a statutory amendment
in effect at the time of the defendant‟s sentencing that made her eligible for probation
because the statute in effect at the time of the commission of her crime precluded
eligibility for probation and Congress had not expressed an intention to give retroactive
effect to the statutory change. Id. at 13. It has also been held that courts must apply the
7
statutory law in effect at the time of the commission of the offense even where a statute is
repealed while the case is on appeal. See Pipefitters Local Union No. 562 v. United
States, 407 U.S. 385, 434-35 (1972). Consequently, we have recognized that:
it is possible that sometime in the future two defendants may receive
different penalties for having committed essentially the same crimes—
although at different times. Such a result may be considered anomalous,
but it is Congress that has drawn the line. If penalties are to differ because
of an arbitrarily selected date, it seems fairer that the severity of the penalty
depend upon the voluntary act of a defendant in choosing the date of his
criminal conduct than upon the date of sentencing, which could vary with
the fortuities of criminal proceedings.
United States v. Caldwell, 463 F.2d 590, 594 (3d Cir. 1972) (citation omitted); see also
Marrero, 417 U.S. at 664 (explaining that defendant‟s argument for leniency was
“addressed to the wrong governmental branch. Punishment for federal crimes is a matter
for Congress, subject to judicial veto only when the legislative judgment oversteps
constitutional bounds.”).
The general Savings Statute requires that any intent to “release or extinguish any
penalty” under an existing statute be “expressly provide[d]” in the subsequent
congressional enactment. The FSA does not contain an express statement that the
increase in the amount of crack cocaine triggering the five-year mandatory minimum is to
be applied to crimes committed before the FSA‟s effective date. Nor does it provide that
those sentenced before the FSA‟s effective date are to be re-sentenced. Therefore, the
FSA cannot be applied to Reevey and Williams.
Our conclusion is consistent with the decision of every Court of Appeals to have
addressed this issue. See United States v. Lewis, ---F.3d---, No. 09-3329, 2010 WL
8
4262020, at *3 (10th Cir. Oct. 29, 2010) (FSA “is not . . . retroactive and thus does not
apply to this case”); United States v. Brewer, ---F.3d---, No. 09-3909, 2010 WL 4117368,
at *7 n.7 (8th Cir. Oct. 21, 2010) (“[T]he Fair Sentencing Act contains no express
statement that it is retroactive, and thus the „general savings statute,‟ 1 U.S.C. § 109,
requires us to apply the penalties in place at the time the crime was committed.”); United
States v. Bell, --- F.3d ---, Nos. 09-3908, 09-3914, 2010 WL 4103700, at *10 (7th Cir.
Oct. 20, 2010) (“Like our sister circuits that have considered this issue, [] we conclude
that the savings statute operates to bar the retroactive application of the FSA.”); United
States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam) (affirming ten-year
mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in
August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act
from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.
2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains
no express statement that it is retroactive nor can we infer any such express intent from
its plain language”). We find this consistent line of authority to be compelling.5
5
The Appellants‟ reliance on United States v. Douglas, Crim. No. 09-202, 2010 WL
4260221 (D. Me. Oct. 27, 2010), is misplaced and unpersuasive. In Douglas, the court
held that the FSA retroactively applied to a defendant who had yet to be “sentenced, but
who engaged in crack cocaine trafficking and pleaded guilty under the previous harsher
regime.” Id. at *1. Douglas is easily distinguishable from the present appeals. Here,
both Reevey and Williams committed their crimes and were sentenced before the FSA
was signed into law. As the authoring Judge of Douglas acknowledged in another
opinion issued that same day, the FSA does not apply to those who, like Reevey and
Williams, have already been sentenced. United States v. Butterworth, Crim. No. 06-62,
2010 WL 4362859, at *1 (D. Me. Oct. 27, 2010) (“Thus, this case is unlike United States
v. Douglas, Case No. 09-202 (D. Me. Oct. 27, 2010), where today I . . . ruled that for
9
IV.
In conclusion, Appellants‟ crimes are governed by the five-year statutory
mandatory minimum sentence that was in effect at the time the crimes were committed.
See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). Accordingly, the sentences imposed by the
District Court will be affirmed.
sentences going forward the provisions of the Fair Sentencing Act do apply, even if the
criminal conduct occurred before its enactment . . . .”).
10
United States v. Richard Reevey
Combined Opinion