PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5214
WILLIAM LEWIS BULLARD, II,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Thomas D. Schroeder, District Judge.
(1:08-cr-00240-TDS-1)
Argued: March 25, 2011
Decided: May 6, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Niemeyer and Judge Agee joined.
COUNSEL
ARGUED: Matthew McGavock Robinson, ROBINSON &
BRANDT, PSC, Covington, Kentucky, for Appellant. Gra-
ham Tod Green, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
2 UNITED STATES v. BULLARD
ON BRIEF: John W. Stone, Jr., Acting United States Attor-
ney, Greensboro, North Carolina, for Appellee.
OPINION
DUNCAN, Circuit Judge:
William Bullard ("Bullard") appeals his conviction and
sentence for possession with intent to distribute cocaine base
("crack") under 21 U.S.C. § 841(a)-(b). Bullard challenges the
district court’s denial of his motion to suppress, argues that
the disparities in sentencing between crack and powder
cocaine offenses violate the Equal Protection and Due Process
Clauses of the Constitution, and contends that the Fair Sen-
tencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat.
2372, should be applied to him. For the reasons that follow,
we affirm the district court’s denial of Bullard’s motion to
suppress, reject his constitutional challenges, and join all of
our sister circuits to have addressed the issue in holding that
the FSA does not apply retroactively.
I.
A.
The following facts, which appear to be undisputed, are
drawn from the testimony of Greensboro Police Department
Detective Mike Montalvo ("Detective Montalvo") and the
general manager of the Greensboro Extended Stay America
Hotel, Tammy Parrish ("Parrish").
On March 10, 2008, James Burgess ("Burgess") checked
into Room 318 of the Greensboro Extended Stay America
Hotel (the "hotel"). He filled out a guest registration card indi-
cating that he would be the sole occupant of Room 318, and
initialed a statement providing that "I am aware that failure to
UNITED STATES v. BULLARD 3
register all occupants and pets in above room could result in
immediate termination of our stay." J.A. 75. Burgess’s sched-
uled departure date was April 9, 2008.
The following day, March 11, Jawann Bradford
("Bradford") registered and paid for a one-night stay in Room
303 of the hotel. After checking out the following morning,
Bradford returned to the hotel office and told Parrish that he
had left a piece of luggage in Room 303. Parrish gave him a
key to the room so that he could retrieve it.
During the afternoon of March 12, while checking to
ensure that Room 303 had been satisfactorily cleaned, Parrish
discovered a grocery bag underneath the bed. When she
opened the bag, she smelled a strong chemical odor and iden-
tified a "[c]reamy white substance" that she took to be drugs.
J.A. 68. Parrish called Greensboro police, who sent seven
members of their Vice Narcotics Unit, including Detective
Montalvo, to the hotel. The officers confirmed that the bag
contained approximately two kilograms of cocaine.
The officers set up surveillance around the hotel and ques-
tioned all individuals in the parking lot, including three men
standing by a parked car. Parrish responded negatively when
asked if Bradford was in the group; she indicated that she did
not recognize any of them. She did, however, identify a key
taken from one of the men as the key to Room 318. The offi-
cers then allowed the men to leave the premises with the key,
a decision to which Parrish later objected because none of the
men was the registered occupant of Room 318. Police
remained at the hotel until 7:00 pm on March 12, at which
point they determined that no one was likely to return for the
drugs. They left after instructing the hotel staff to notify them
of anything suspicious.
The following day, March 13, Bradford returned to the
hotel, entered the lobby, and approached the front desk. Par-
rish, who was sitting around the corner in the hotel office, rec-
4 UNITED STATES v. BULLARD
ognized Bradford and motioned to the desk clerk. When
Bradford noticed this communication, he told Parrish he "for-
got something outside" that he needed to get. J.A. 70. As
Bradford was exiting, Parrish saw him reaching down into his
pocket in a move she interpreted as possibly reaching for a
gun. Once Bradford left the lobby, Parrish locked the door
and called 911.
Parrish then noticed a second man, later identified as Bul-
lard, walking around the corner of the hotel from the direction
of Room 318. Parrish recognized him as one of the three men
questioned in the parking lot the day before.1 Together, Brad-
ford and Bullard tried to shove their way inside the lobby
door. When the effort proved unsuccessful, they left.
Detective Montalvo and several additional officers arrived
shortly thereafter and Parrish explained what had happened.
She informed them of her belief that one of the men had the
key to Room 318 and that Bradford might be in that room.
She asked the officers to please "check the room to make sure
he wasn’t in that room and to have all the occupants that were
in the room that weren’t registered to leave [sic] the room."
J.A. 76. She further explained that several guests had com-
plained to her the day before of an unusual number of people
coming and going from Room 318, that she had not seen the
registered occupant since the day he checked in, and that she
feared for the safety of nearby guests and hotel employees.
Parrish gave Detective Montalvo the room key.
When the officers reached Room 318 they found a hand-
made "Do Not Disturb" sign on the door. J.A. 85. They
1
Although Parrish had not seen Bullard before March 12, she had previ-
ously spoken to him on the phone. At some point prior to the March 12
incident, Bullard had called Parrish, identified himself, and spoken to her
about the possibility of changing locations from the Extended Stay Amer-
ica hotel at which he was then staying to the Greensboro location. How-
ever, there is no indication that Bullard ever registered as a guest at the
Greensboro location.
UNITED STATES v. BULLARD 5
knocked several times but no one answered, so they used their
key to enter. The officers immediately noticed a "harsh chem-
ical smell" that suggested to Detective Montalvo that the
occupants "were cooking up some type of narcotic." J.A. 86.
As he walked a few feet into the room, Detective Montalvo
noticed what appeared to be cocaine residue and cocaine
packaging equipment on a table. He testified that he then told
the other officers: "Listen, let’s just do a quick protective
sweep of this place, lock it down. I am going to go ahead and
apply for a search warrant. Make sure there are no weapons,
no chemicals for us to inhale, or any booby traps, and so
forth." Id.
The officers conducted an extensive search, looking in and
around the beds and under clothing and opening a zipped suit-
case, the refrigerator, and cabinets. Inside the suitcase, which
Bullard later acknowledged was his,2 officers found a child’s
lunchbox containing cocaine. At this point, Detective Mon-
talvo requested back-up and positioned additional officers
around the hotel, while he and another detective remained in
the room.
Shortly thereafter, Bullard arrived at the hotel accompanied
by his two children, ages five and two, and another man,
Quinton Covington ("Covington"). The group went up to
Room 318, with Bullard carrying his two-year-old and a plas-
tic bag. When Bullard inserted the key into the lock, the
detectives opened the door and announced themselves. Cov-
ington ran but was quickly apprehended. Bullard tried to run
but was encumbered by his children and stopped. Officers
searched him and found $2,000 of currency in his pocket and
one and one-half ounces of cocaine in the plastic bag he was
carrying. Once Bullard and Covington were secured in Room
318, Detective Montalvo left to obtain a search warrant for
the room.
2
The parties have also stipulated that Bullard had been staying in the
hotel room for several nights, although he was not a registered guest.
6 UNITED STATES v. BULLARD
Detective Montalvo based the search warrant application
on the information he received from Parrish, the cocaine resi-
due and packing materials he saw on the table in Room 318,
and the items found on Bullard’s person. The warrant applica-
tion did not describe the items found in Bullard’s suitcase.
Detective Montalvo obtained a search warrant and returned
to the hotel to execute it. Officers found paraphernalia used
to cook and package drugs and seized the approximately 300
grams of cocaine previously identified in Bullard’s luggage
and an additional $20,000-$25,000 of United States currency.
B.
On July 28, 2008, Bullard was indicted on two counts of
possession with intent to distribute crack in violation of 21
U.S.C. §§ 812 and 841. Count One charged Bullard with pos-
sessing approximately 47 grams of a mixture containing
crack; Count Two charged Bullard with possession of approx-
imately 332 grams of a mixture containing crack. In Novem-
ber 2008, Bullard filed a motion to suppress the evidence
"obtained during and flowing from" the search of Room 318,
arguing that the search was conducted "without a valid war-
rant and in the absence of any exception to the warrant
requirement." J.A. 28.
After an evidentiary hearing at which Parrish and Detective
Montalvo testified, the district court denied Bullard’s motion
to suppress. The district court based its denial of Bullard’s
motion on two alternative grounds: first, it determined that, as
an unregistered guest occupying Room 318 in contravention
of hotel policy and North Carolina law, Bullard had no legiti-
mate expectation of privacy in Room 318 and thus could not
challenge the search. Second, the district court found that
even if Bullard did have a reasonable expectation of privacy
in Room 318, the search did not violate his Fourth Amend-
ment rights. Specifically, the district court found that officers
reasonably relied on Parrish’s consent to enter Room 318,
UNITED STATES v. BULLARD 7
and, once in the room, saw evidence in plain view that sup-
ported their later application for a search warrant. The district
court further explained that the constitutionality of officers’
initial search of Bullard’s luggage during their protective
sweep of Room 318 was not relevant because the officers "did
not rely on any evidence from the protective sweep to obtain
the warrant." J.A. 166. The district court also found the search
of Bullard’s person permissible as a search incident to arrest.
Bullard entered into a plea agreement in which he pleaded
conditionally guilty to Count Two of the indictment, reserving
the right to appeal the denial of his motion to suppress. He
was sentenced to 240 months’ imprisonment, the statutory
minimum for his offense. This appeal followed.
II.
Bullard makes three arguments on appeal. He first chal-
lenges the district court’s denial of his motion to suppress,
contending that the search of Room 318 violated his Fourth
Amendment rights. Bullard next argues that his sentence is
unconstitutional because the disparities between crack and
powder cocaine sentences violate equal protection and due
process. Finally, Bullard claims that the FSA, which went into
effect during the pendency of his appeal, should be applied
retroactively. We address each argument in turn.
A.
Bullard first challenges the district court’s denial of his
motion to suppress. When reviewing a district court’s denial
of a motion to suppress, "we review factual findings for clear
error and legal determinations de novo," and view the evi-
dence "in the light most favorable to the Government." United
States v. Green, 599 F.3d 360, 375 (4th Cir. 2010).
1.
The parties first disagree over whether the district court
properly concluded that Bullard lacked a legitimate expecta-
8 UNITED STATES v. BULLARD
tion of privacy in Room 318. Without such an expectation,
Bullard would be unable to assert a Fourth Amendment chal-
lenge to the search of that room.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV. "Fourth Amendment rights are personal rights
which . . . may not be vicariously asserted." United States v.
Quinn, 475 U.S. 791, 794 (1986) (quoting Rakas v. Illinois,
439 U.S. 128, 133-34 (1978)) (emphasis in Quinn). In order
to challenge a search under the Fourth Amendment, a defen-
dant bears the burden of proving that he had a "legitimate
expectation of privacy" in the invaded place. United States v.
Bynum, 604 F.3d 161, 164 (4th Cir. 2010). For an expectation
of privacy to be legitimate, it must be objectively reasonable;
in other words, it must be an expectation "that society is pre-
pared to recognize as reasonable." Bond v. United States, 529
U.S. 334, 338 (2000) (internal quotations omitted); see also
Doe v. Broderick, 225 F.3d 440, 450 (4th Cir. 2000).
The government argues that the district court correctly con-
cluded that as an unregistered hotel guest, Bullard had no
legitimate expectation of privacy in Room 318. The govern-
ment points to the fact that the hotel required all guests to reg-
ister and that North Carolina law requires that "[a]ny person
occupying any room or rooms in any lodging house or hotel
shall register or cause himself to be registered where registra-
tion is required by such lodging house or hotel." N.C. Gen.
Stat. § 72-30. And, it contends, even though a registered hotel
guest clearly has a reasonable expectation of privacy in his
hotel room, see Stoner v. California, 376 U.S. 483, 490
(1964), an unregistered guest not legitimately on hotel prem-
ises cannot enjoy the same expectation. Bullard counters by
asserting that even though the hotel had a nominal "no regis-
tered guests" policy, he nevertheless had developed a reason-
able expectation of privacy in Room 318 because he had
stayed there for three days without anyone at the hotel object-
UNITED STATES v. BULLARD 9
ing to his presence. Cf. United States v. Kitchens, 114 F.3d
29, 32 (4th Cir. 1997) ("A guest may still have a legitimate
expectation of privacy even after his rental period has termi-
nated, if there is a pattern or practice which would make that
expectation reasonable.").
We find it unnecessary to decide, on the facts presented,
whether Bullard had a reasonable expectation of privacy in
Room 318. Assuming without deciding that Bullard may have
had such an expectation, we conclude, for the reasons
explained below, that the search of Room 318 did not violate
his Fourth Amendment rights.
2.
Bullard’s Fourth Amendment challenge focuses on the
search of his closed luggage in Room 318, in which officers
found approximately 330 grams of crack. Bullard argues that
the officers’ search of this luggage violated his Fourth
Amendment rights and requires suppression of all the evi-
dence later uncovered against him.
For purposes of Bullard’s argument, the chronology of
events leading up to the luggage search is important. Signifi-
cantly, Bullard does not challenge the officers’ entry into
Room 318. He concedes that they had valid third-party con-
sent from Parrish to enter the room and remove unregistered
guests. See United States v. Buckner, 473 F.3d 551, 555-56
(4th Cir. 2007) (holding that officers’ search was valid where
they had "an objectively reasonable belief" that a third party
"had authority to consent to a search"); see also Illinois v.
Rodriguez, 497 U.S. 177, 179 (1990). This concession is ulti-
mately fatal to Bullard’s claim because, as we explain below,
evidence in plain view upon the officers’ entry supported their
later application for a search warrant and established probable
cause for Bullard’s arrest.
Once the officers properly entered Room 318, the smell of
narcotics was immediately apparent and drug paraphernalia as
10 UNITED STATES v. BULLARD
well as what appeared to be cocaine residue were in plain
view. The seizure of such obviously incriminating evidence
was thus authorized by the plain view doctrine. See United
States v. Rumley, 588 F.3d 202, 205 (4th Cir. 2009)
("Pursuant to th[e] plain-view doctrine, an officer may, with-
out a warrant, seize incriminating evidence when (1) the offi-
cer is lawfully in a place from which the object may be
plainly viewed; (2) the officer has a lawful right of access to
the object itself; and (3) the object’s incriminating character
is immediately apparent." (internal quotations omitted)).
Apparently recognizing this fact, Bullard does not challenge
the admissibility of this evidence.
Bullard argues, however, that officers went beyond the
scope of Parrish’s consent to evict unregistered guests by
searching cabinets and closed luggage. And, he reasons, this
illegal search tainted the evidence later recovered from his
luggage and his person, which would include all of the crack
he was charged with possessing.
Opening luggage and cabinets under these circumstances
appears to exceed the scope of a protective sweep, and the
government at oral argument conceded as much. But such a
search requires suppression only if the illegal search tainted
the later recovery of the same evidence pursuant to a valid war-
rant.3 See Murray v. United States, 487 U.S. 533, 536-37
(1988). Bullard argues that the search here tainted the offi-
cers’ later recovery of cocaine from his luggage for two rea-
sons: first, he asserts that it was improper for detectives to
omit from their warrant application the fact that they had
already searched Bullard’s luggage and found cocaine within
it; and second, he contends that detectives would not have
sought a search warrant for the room absent the evidence they
discovered in Bullard’s luggage. Accordingly, Bullard
believes that the evidence found within his luggage and the
3
Bullard does not argue that the search warrant lacked probable cause
to issue.
UNITED STATES v. BULLARD 11
evidence found on his person incident to arrest should be
excluded as "fruit of the poisonous tree." See Wong Sun v.
United States, 371 U.S. 471, 484-88 (1963).
The government contends that the problematic search of
Bullard’s luggage is saved by the independent source doc-
trine, which provides for the admissibility of evidence if it
would have been obtained even absent an illegal search. See
Murray, 487 U.S. at 542. In Murray, the Supreme Court
explained that to conclude that a later search conducted pursu-
ant to a warrant was independent of an earlier, unlawful
search, two findings must be made: first, that officers "did not
include in their application for a warrant any recitation of
[their earlier unlawful observations]"; and second, that they
"would have sought a warrant" even if they had not conducted
the unlawful search. Id. at 543; see also United States v.
Mowatt, 513 F.3d 395, 404 (4th Cir. 2008).
The first criterion is indisputably met. Bullard agrees that
officers did not include in their warrant application any of the
information that they discovered during their initial search of
Bullard’s luggage. Although Bullard challenges the omission
as deceptive, in fact this omission is critical to saving the war-
rant here from the taint of the earlier search. See Murray, 487
U.S. at 543.
The second criterion for the applicability of the indepen-
dent source doctrine is also met on these facts, as the record
reflects the officers’ intent to seek a search warrant from the
outset. When the officers approached 318, they had ample
reason to suspect drug activity, based on the cocaine found in
Bradford’s room (Room 303) the day before, Bullard’s asso-
ciation with Bradford on March 13 and with persons possess-
ing a key to Room 318 the day before, and Parrish’s statement
that an unusual number of persons had been seen going in and
out of Room 318. Upon entry into Room 318, officers saw
evidence of drug activity in plain view and smelled a strong
chemical odor. Detective Montalvo testified that at this point,
12 UNITED STATES v. BULLARD
he told the officers accompanying him that he was planning
to "go ahead and apply for a search warrant" as soon as they
finished a protective sweep. J.A. 86.
On these facts, the independent source doctrine saves any
overreaching during the officers’ initial search of Bullard’s
luggage from tainting the evidence later obtained pursuant to
a valid search warrant. The record reflects that the officers did
not rely on any information obtained during the search of Bul-
lard’s suitcase in obtaining a search warrant, and that they
intended to obtain a warrant before they found this additional
evidence.
Officers’ initial search of Bullard’s luggage also did not
taint the later search of his person incident to arrest. In order
for a search incident to arrest to be valid, the arrest itself must
have been supported by probable cause. See United States v.
Han, 74 F.3d 537, 541 (4th Cir. 1996). We have defined prob-
able cause to arrest as "facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the cir-
cumstances shown, that the suspect has committed, is com-
mitting, or is about to commit an offense." Id. (internal
quotations omitted).
Here, the same observations that supported the officers’
decision to apply for a search warrant—Room 318’s harsh
chemical smell, the evidence in plain view, the officers’
knowledge of recent suspicious activities at the hotel, and
Bullard’s possession of a key to Room 318—also gave them
sufficient reason to believe that Bullard had committed an
offense and created probable cause for Bullard’s arrest. See,
e.g., United States v. Humphries, 372 F.3d 653, 659-60 (4th
Cir. 2004) (finding that strong odor of marijuana emanating
from a particular man was sufficient to create probable cause
for his arrest). Bullard does not contest the conclusion that
once he was placed under arrest, officers properly searched
his "person and the area within his immediate control." United
UNITED STATES v. BULLARD 13
States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (quot-
ing Chimel v. California, 395 U.S. 752, 763 (1969)). Accord-
ingly, the search of Bullard’s person was not tainted by the
officers’ initial search of his luggage because even without
considering the evidence discovered in Bullard’s luggage,
officers had probable cause to arrest Bullard and properly
searched him incident to his arrest.
For these reasons, we affirm the district court’s denial of
Bullard’s motion to suppress.
B.
Bullard next argues that his sentence is unconstitutional
because the statute under which he was sentenced, 21 U.S.C.
§ 841(b), "is based on the inherently discriminatory disparity
in punishment between crack and powder cocaine offenses,
resulting in Bullard receiving a longer sentence based on his
race." Appellant’s Br. at 33. Under the version of § 841 in
place at the time Bullard was sentenced, "one unit of cocaine
base [was] equated with 100 units of cocaine powder; thus,
possessing a much smaller quantity of cocaine base result[ed]
in a lengthier sentence than possessing the same quantity of
cocaine powder."4 United States v. Burgos, 94 F.3d 849, 876
(4th Cir. 1996). Bullard argues that because these harsh crack
penalties disproportionately impact African Americans, the
penalties violate equal protection and due process.
We are not unsympathetic to the concerns Bullard articu-
lates. As he acknowledges, however, "we have consistently
sustained the constitutionality of sentencing disparity between
cocaine base and cocaine powder based on an equal protec-
tion challenge, rejecting repeatedly the argument that [Bul-
4
Through passage of the FSA, Congress has since amended § 841 by
reducing, but not eliminating, these disparities in sentencing between
crack and powder cocaine offenses. See Pub. L. No. 111-220, 124 Stat.
2372.
14 UNITED STATES v. BULLARD
lard] now seeks to advance." Id. at 876-77 (collecting cases).
Bullard asks us to reevaluate our precedent based on "15
years of additional data and findings concerning the disparity
in punishment between crack and powder cocaine offenses."
Appellant’s Br. at 36. But a "panel of this court cannot over-
rule, explicitly or implicitly, the precedent set by a prior panel
of this court. Only the Supreme Court or this court sitting en
banc can do that." United States v. Rivers, 595 F.3d 558, 564
n.3 (4th Cir. 2010) (internal quotations omitted). Bullard has
not identified any subsequent controlling precedent compel-
ling the conclusion that our prior decisions upholding the sen-
tencing disparities have been overruled. We must therefore
conclude that the disparities between crack and cocaine sen-
tences contained in 21 U.S.C. § 841 do not violate equal pro-
tection or due process.
C.
Bullard’s final argument is that the FSA, which was signed
into law August 3, 2010, during the pendency of his appeal,
should be interpreted to apply retroactively, entitling him to
resentencing. The FSA increased the quantity of crack
cocaine necessary to trigger certain mandatory minimum sen-
tences under 21 U.S.C. § 841(b)(1). See Pub. L. No. 111-220,
124 Stat. 2372 (amending, inter alia, 21 U.S.C. § 841). Under
the previous version of § 841(b)(1), a defendant who, like
Bullard, had been convicted of a prior felony drug offense,
faced a mandatory minimum ten-year sentence for possession
of at least five grams of crack cocaine, and a minimum
twenty-year sentence for possession of at least fifty grams of
crack cocaine. See 21 U.S.C. § 841(b)(1)(A)-(B) (2006). The
FSA raised the amounts necessary to trigger these ten- and
twenty-year mandatory minimum sentences from 5 grams to
28 grams, and 50 grams to 280 grams, respectively, such that
those defendants convicted of possessing smaller amounts of
crack cocaine now face shorter required sentences. See Pub.
L. No. 111-220, 124 Stat. 2372.
UNITED STATES v. BULLARD 15
We first take up the issue of whether Bullard has standing
to assert this FSA claim. Finding that he does, we conclude
that the claim fails on its merits, as there is no indication that
Congress intended for the FSA to apply retroactively.
1.
Bullard’s standing to assert the retroactivity of the FSA is
not immediately apparent. Although the government did not
raise the issue of standing, we address it under our indepen-
dent obligation to satisfy ourselves of our jurisdiction. See
Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1223 (4th Cir
1980) ("[W]hether raised or not, jurisdictional standing is an
issue to be considered sua sponte by the court.").
Standing requires injury-in-fact, causation, and redressa-
bility. McBurney v. Cuccinelli, 616 F.3d 393, 402 (4th Cir.
2010). When a defendant seeks to challenge a sentencing stat-
ute, the inquiry focuses on whether the defendant’s sentence
might change if he prevailed on his statutory claim. If not,
courts typically decline to recognize standing, as the defen-
dant lacks any redressable injury. See, e.g., United States v.
Gray, 577 F.3d 947, 950-51 (8th Cir. 2009) (holding that the
defendant lacked standing to challenge a statutory minimum
sentence where the district court’s sentence was not based on
the challenged provision); United States v. Johnson, 886 F.2d
1120, 1122 (9th Cir. 1989) (finding that the defendants lacked
standing to challenge the constitutionality of § 841(b)(1)(B)’s
mandatory minimum because their sentences "were not
affected by the mandatory minimum provision of the stat-
ute").
Bullard’s potential standing problem arises because he was
charged with possessing an amount of crack cocaine for
which the mandatory minimum sentence remains unaffected
by the FSA. Bullard pleaded guilty to Count Two of his
indictment, which charged him with possessing 332 grams of
crack cocaine—an amount that would confer a 20-year mini-
16 UNITED STATES v. BULLARD
mum sentence under both the old and new versions of
§ 841(b)(1).
Bullard argues that he nevertheless has standing because
the version of § 841(b)(1)(A) to which he pleaded guilty
penalized possession of as little as 50 grams of crack. After
close consideration, we are inclined to agree. Although his
argument is not artfully elucidated, the logical extension to
Bullard’s point that he pleaded to a statute that criminalized
only 50 grams is that if he were granted resentencing, he
could still raise a challenge to the quantity of drugs attributed
to him above 50 grams, for sentencing purposes. Even after
pleading guilty, a defendant retains the right during sentenc-
ing to challenge alleged drug quantities for sentencing pur-
poses. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th
Cir. 1993).
Of course, certain admissions made by a defendant during
his guilty plea might foreclose his ability to mount a viable
challenge at sentencing to the quantity of drugs he possessed.
For example, we have explained that the government can
meet its burden of proving quantity at sentencing through
pointing to "a defendant’s acknowledgment during the Rule
11 colloquy or sentencing proceedings that the amount set
forth in the indictment or alleged by the Government is cor-
rect." Id. Similarly, if a defendant pleads guilty to an indict-
ment that charges him with a specific quantity of drugs
"without reserving his right to challenge the amount for sen-
tencing purposes," the court may find "that the alleged quan-
tity should in fact be attributed." Id. at 1013 & n.3.
In the instant case, however, we believe there might be
some room for Bullard to challenge the quantity of drugs
attributable to him. At some places in Bullard’s plea agree-
ment and in his plea colloquy, Bullard appears to admit to
having possessed the full 332 grams charged in his indict-
ment. For example, at his plea hearing, the district court
observed that Bullard was "pleading guilty to Count Two . . .
UNITED STATES v. BULLARD 17
[involving] approximately 332 grams," just before Bullard
entered his guilty plea to that count. J.A. 199. However, Bul-
lard’s plea agreement and plea colloquy also both contain
explicit acknowledgements by Bullard that he "agrees that the
substance involved in the offense alleged in Count Two of the
Indictment for which he is accountable is at least 50 grams
of a mixture and substance containing a detectable amount of
cocaine base (‘crack’)." J.A. 173 (emphasis added); see also
J.A. 200. On this record, Bullard might contest at resentenc-
ing whether he affirmatively admitted to possession of 332
grams, or should be found instead to have possessed some
amount less than 280 grams, which would entitle him to a
lower minimum sentence under the FSA.
Accordingly, if Bullard were to prevail on his argument
that the FSA applies retroactively, he might ultimately suc-
ceed in obtaining a lesser sentence under the FSA. For this
reason, we find that Bullard has standing to assert this claim.
2.
Having satisfied ourselves of our jurisdiction to hear Bul-
lard’s claim, we turn to its merits. Bullard contends that the
FSA should be interpreted to apply retroactively to cases
pending on direct appeal. The government responds that
application of the General Savings Statute (the "Savings Stat-
ute"), 1 U.S.C. § 109, bars the FSA’s retroactive application.
We agree and join all of our sister circuits to have addressed
the issue in holding that the Savings Statute does indeed pre-
clude retroactive application of the FSA.
The Savings Statute provides:
The repeal of any statute shall not have the effect to
release or extinguish any penalty . . . 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
18 UNITED STATES v. BULLARD
any proper action or prosecution for the enforcement
of such penalty . . . .
1 U.S.C. § 109 (emphasis added). This rule fully applies in
the sentencing context and bars "application of ameliorative
criminal sentencing laws repealing harsher ones in force at the
time of the commission of an offense," absent an express
statement that the law is intended to be applied retroactively.
Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,
661 (1974). We agree with all eight circuits that have ruled on
the issue that the FSA contains no express statement of retro-
activity, nor can any such intent be inferred from its language.
See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.
2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.
2010); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.
2010) (per curiam); United States v. Gomes, 621 F.3d 1343,
1346 (11th Cir. 2010); United States v. Bell, 624 F.3d 803,
814-15 (7th Cir. 2010); United States v. Carradine, 621 F.3d
575, 580 (6th Cir. 2010); United States v. Lewis, 625 F.3d
1224, 1228 (10th Cir. 2010); United States v. Brewer, 624
F.3d 900, 909 n.7 (8th Cir. 2010).
Bullard argues that Congress’s instruction in the FSA to the
Sentencing Commission to "promulgate the guidelines, policy
statements, or amendments provided for in this Act as soon as
practicable . . . ," Pub. L. No. 111-220, evinces its intent to
have the law apply retroactively. We disagree. Congress’s
desire to have the FSA implemented quickly in no way sug-
gests that it also intended to have the Act apply retroactively
to defendants sentenced before it was passed.5 Congress
knows how to explicitly provide for retroactive application
when it so desires. See, e.g., Velasquez-Gabriel v. Crocetti,
263 F.3d 102, 106-07 (4th Cir. 2001) (collecting certain statu-
5
We do not address the issue of whether the FSA could be found to
apply to defendants whose offenses were committed before August 3,
2010, but who have not yet been sentenced, as that question is not pres-
ented here.
UNITED STATES v. BULLARD 19
tory provisions that Congress expressly stated should be
applied retroactively).
Bullard also argues that the Savings Statute should not
apply here, as by its terms it applies only to the "repeal" of
a statute, not to an amendment. But we have squarely held
that "although § 109 specifically refers only to repealed stat-
utes, it also applies to statutes changed by amendment." Kor-
shin v. C.I.R., 91 F.3d 670, 673 n.5 (4th Cir. 1996). We find
similarly unpersuasive Bullard’s argument that the FSA is a
"remedial," "error-correcting statute" that can apply on direct
review even if not explicitly made retroactive. See Appel-
lant’s Supp. Br. at 7; Rep. Br. at 14. The "error-correcting"
exception to the Savings Statute is a "narrow" one, confined
to those situations where a "provision . . . must be read to
apply to pending cases because a contrary reading would ren-
der it ineffective." Rivers v. Roadway Exp., Inc., 511 U.S.
298, 311 (1994) (internal quotations omitted). The FSA
plainly will not be rendered ineffective if it applies only pro-
spectively. Moreover, as the government persuasively points
out, every statutory amendment corrects what has come to be
perceived by Congress as an "error," such that a broad excep-
tion to the Savings Statute on this ground would swallow the
rule.
For these reasons, we hold that the FSA does not apply
retroactively and reject Bullard’s claim that he is entitled to
resentencing.
III.
The judgment of the district court is hereby
AFFIRMED.