UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISAAC NOREL STURDIVANT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00123-WO-1)
Submitted: July 12, 2012 Decided: August 17, 2012
Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jenifer Wicks, LAW OFFICES OF JENIFER WICKS, Washington, D.C.,
for Appellant. Ripley Rand, United States Attorney, Paul A.
Weinman, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In March 2011, Isaac Norel Sturdivant pled guilty
pursuant to a written plea agreement to possession with intent
to distribute 12.7 grams of crack cocaine, in violation of 21
U.S.C. § 841(b)(1)(B) (2006). According to the indictment, the
offense conduct occurred in January 2009. The district court
sentenced Sturdivant to 168 months’ imprisonment in July 2011.
On appeal, Sturdivant asks us to vacate his sentence
and to remand his case for resentencing under the Fair
Sentencing Act of 2010 (“FSA”). As the Supreme Court recently
held in the consolidated cases of Dorsey v. United States and
Hill v. United States, 132 S. Ct. 2321, 2331 (2012), the FSA’s
“more lenient penalties” apply retroactively to crack cocaine
offenders like Sturdivant, who committed their crimes before
passage of the FSA, but who were sentenced after its August 3,
2010 effective date.
In its response, the Government asserts that
Sturdivant lacks standing to raise this claim. According to the
Government, there is no redressable injury here because the
district court did not impose the mandatory minimum five-year
sentence and because the court rejected Sturdivant’s challenge
to the drug quantity attributable to him. We agree and thus
dismiss this appeal for lack of standing. See United States v.
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Phillips, 185 F.3d 183 (4th Cir. 1999) (dismissing appeal for
lack of standing).
To have standing to challenge a sentencing statute, a
defendant must show that his “sentence might change if he
prevailed on his statutory claim.” United States v. Bullard,
645 F.3d 237, 246 (4th Cir.), cert. denied, 132 S. Ct. 356
(2011). But there is no possibility for such a change in
Sturdivant’s sentence. Our review of the record convinces us
that the then-applicable five-year mandatory minimum did not
influence the district court’s sentencing decision. Rather, the
district court sentenced Sturdivant to 168 months’ imprisonment,
at the bottom of his advisory Guidelines range, based on its
determination of the drug quantity attributable to him. * Thus,
because Sturdivant suffered no injury-in-fact from the improper
application of this mandatory minimum, he lacks standing to
challenge it based on the FSA.
Because the five-year mandatory minimum simply did not
affect the sentence ultimately imposed on Sturdivant, he lacks
standing to raise this FSA claim. Accordingly, we dismiss
Sturdivant’s appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
*
Although the subject of extensive argument at sentencing,
Sturdivant does not appeal the calculation of the attributable
drug quantity.
3
materials before the court and argument would not aid the
decisional process.
DISMISSED
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