11-48-cr
United States v. Highsmith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Submitted: March 23, 2012 Decided: August 8, 2012)
Docket No. 11-48-cr
UNITED STATES OF AMERICA,
Appellee,
— v. —
JOHN HIGHSMITH,
Defendant-Appellant.
B e f o r e:
LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.
__________________
Defendant appeals from his sentence, following his plea of guilty, in the United
States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge),
to one count of conspiracy to distribute at least 50 grams of crack cocaine and one count
of weapons possession in furtherance of a drug-trafficking crime. After he committed the
crimes for which he was convicted, but before he was sentenced, Congress passed the
Fair Sentencing Act (“FSA”), which reduced the incarceration penalties applicable to the
first conviction. While this appeal was pending, the Supreme Court decided Dorsey v.
United States, 132 S. Ct. 2321 (2012), which applied the lesser penalties created under the
FSA retroactively to those defendants sentenced after the Act became law. Dorsey
controls the outcome of this case. We therefore vacate the sentence and remand for
resentencing.
Vacated and remanded.
Nicholas J. Pinto, New York, N.Y., for Defendant-Appellant.
Daniel S. Silver, Susan Corkery, Assistant United States Attorneys, for
Loretta E. Lynch, United States Attorney for the Eastern District of New
York, Brooklyn, N.Y., for Appellee.
PER CURIAM:
Defendant-appellant John Highsmith pled guilty to one count of conspiracy to
distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii), and one
count of weapons possession in furtherance of a drug-trafficking crime in violation of 18
U.S.C. § 924(c). He appealed, arguing that the district court erred by failing to make a
specific finding of fact as to whether the firearm, which he admits to having possessed in
furtherance of a drug-trafficking crime, “[was] discharged” in violation of 18 U.S.C. §
924(c)(1)(A)(iii). While the appeal was pending, the Supreme Court decided Dorsey v.
United States, 132 S. Ct. 2321 (2012), which held that the more lenient sentences
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Congress created under the Fair Sentencing Act (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372 (Aug. 3, 2010), applied to those defendants who were to be sentenced after the FSA
became law for crimes committed before that event. Pursuant to our order, the parties
briefed Dorsey’s effect on Highsmith’s sentence, and agree that we must vacate the
sentence and remand for resentencing consistent with Dorsey. We write to make clear
that Dorsey abrogates our decision in United States v. Acoff, 634 F.3d 200 (2d Cir. 2011),
and to reject Highsmith’s remaining argument that the district court plainly erred by
adopting the presentence investigation report (“PSR”) without making further fact-
findings. We therefore vacate the sentence and remand for resentencing consistent with
Dorsey and whatever additional fact-finding the district court deems necessary in light of
this opinion.
BACKGROUND
On April 15, 2004, pursuant to a plea agreement, Highsmith pled guilty to a two-
count superseding information. By that agreement, Highsmith acknowledged his
participation in a drug conspiracy in the Gowanus Housing Development in Brooklyn,
New York, from 1997 through June 1999.1 Highsmith pled guilty to conspiring to
distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(iii). Under the law at the time of the events of the conspiracy and at the
1
The overall Gowanus drug conspiracy – including events and transactions in
which Highsmith had no role – lasted from 1992 through 2003, and primarily involved
the retail sale of large quantities of crack cocaine and heroin, enforced by violence.
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time of the plea, the quantity of crack which Highsmith admitted he conspired to sell
triggered a mandatory minimum sentence of ten years of incarceration. Id.
§ 841(b)(1)(A).
Highsmith also pled guilty to Count Two of the information, which alleged a
violation of an unspecified subsection of 18 U.S.C. § 924(c). Section 924(c) generally
prohibits a person from using or carrying a firearm in furtherance of “any crime of
violence or drug trafficking crime.” Id. The statute provides for mandatory minimum
sentences, which must be served consecutively to sentences for the underlying “crime of
violence or drug trafficking crime,” for different uses of firearms: five years for
possession, id. § 924(c)(1)(A)(i), seven years if the “firearm is brandished,” id. §
924(c)(1)(A)(ii), and ten years “if the firearm is discharged,” id. § 924(c)(1)(A)(iii).
During the allocution regarding Count Two, Highsmith and the district court had
the following colloquy:
THE COURT: Now with respect to the second count,
which is the firearm count, tell me what
you did to commit that crime.
DEFENDANT: When I was distributing a controlled
substance, I carried a firearm for
protection.
THE COURT: I see. And this was between 1997 and
June 1999?
DEFENDANT: Yes, sir.
...
THE COURT: And did you [carry a firearm] knowingly
and intentionally in furtherance of the
drug trafficking crime?
DEFENDANT: Yes.
4
The parties agreed to other details not relevant to this appeal, but did not specify the use
to which the firearm was put, beyond the explanation Highsmith gave in the allocution
quoted above.
The Probation Department’s PSR included additional information about
Highsmith’s use of firearms. “In the early 2000’s,” according to the PSR, Highsmith used
a weapon in the furtherance of a drug transaction. PSR ¶ 25. He brandished the weapon
during that transaction and used it to “hit a drug user on the head,” which caused the
weapon to “fire[] a round.” Id. There is no other evidence in the record regarding
Highsmith’s brandishing or discharging a firearm.
On November 18, 2010, the district court sentenced Highsmith. It concluded, and
the parties agreed, that the applicable Guidelines range was 360 months to life. The
district court imposed a below-Guidelines sentence of ten years on each count, to be
served consecutively, and five years supervised release. For Count Two, while the
district court did not cite any specific subsection of § 924(c), it did note that “Count
[T]wo, which is the gun offense, carries a statutory minimum of ten years.” Because
§ 924(c)(1)(A)(iii) is the only subsection cited in the superseding information that carries
a mandatory minimum of ten years, we infer that the district court concluded that
Highsmith’s “firearm [was] discharged,” id. While the district court did not orally
acknowledge its adoption of the facts as described in the PSR, it did issue a Statement of
Reasons, which indicated that the district court “adopt[ed] the presentence investigation
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without change.” Highsmith did not object to the manner in which the district court
adopted the findings of the PSR, nor did he dispute the applicability of the ten-year
mandatory sentence on Count Two.
Highsmith timely appealed.
DISCUSSION
I. Retroactive Application of the Fair Sentencing Act
On appeal, Highsmith argues that the district court committed procedural error by
failing to expressly recite the factual finding necessary to support the application of the
ten-year mandatory consecutive sentence in 18 U.S.C. § 924(c)(1)(A)(iii). After the
appeal was submitted, however, we ordered the parties to submit supplemental briefing
regarding the potential application of the Supreme Court’s then-pending decision in
Dorsey, which was issued on June 21, 2012. 132 S. Ct. 2321. Highsmith argued
thereafter that Dorsey required the vacatur of his sentence and remand for resentencing.
The government conceded the correctness of Highsmith’s argument.
We agree with the parties that Dorsey requires that we vacate Highsmith’s
sentence and remand for resentencing consistent with that opinion. In the FSA, Congress
reduced the disparity in penalties imposed upon offenders who dealt in powder cocaine
and those who dealt in crack cocaine. The previous statutory scheme “imposed, for
example, the same 5-year minimum term upon (1) an offender convicted of possessing
with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted
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of possessing 5 grams of crack.” Dorsey, 132 S. Ct. at 2326. In the FSA, which became
law on August 3, 2010, Congress reduced that disparity from 100-to-1 to 18-to-1. Id.
Dorsey addressed whether the FSA’s more lenient mandatory minimums applied
retroactively to a specific group of defendants: those who, prior to the FSA’s passage,
committed crack-related crimes subject to the pre-FSA mandatory minimums, but who
were not sentenced until after the FSA became law. Highsmith is such a defendant. We
and our sister circuit courts had previously addressed the issue, and come to divergent
conclusions. Compare, e.g., Acoff, 634 F.3d at 202 (FSA does not apply to such
defendants) and United States v. Fisher, 635 F.3d 336, 339-40 (7th Cir. 2011) (same),
with United States v. Douglas, 644 F.3d 39, 42-44 (1st Cir. 2011) (FSA applies to such
defendants) and United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011) (same).
In Dorsey, the Supreme Court determined that the FSA’s reduced mandatory
minimum sentences for crack-related crimes apply to such defendants. After
acknowledging that the “relevant language in different statutes argues in opposite
directions,” the Court held that Congress intended, by the FSA, to apply with respect to
the mandatory minimum sentences the well-established principle that “sentencing judges
[are] to use the Guidelines Manual in effect on the date that the defendant is sentenced,
regardless of when the defendant committed the offense, unless doing so would violate
the ex post facto clause” of the Constitution. Dorsey, 132 S. Ct. at 2330, 2332 (internal
quotation marks omitted).
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The parties agree that Highsmith’s case is indistinguishable from Dorsey. We
reach the same conclusion. Dorsey abrogates our previous contrary holding in Acoff, 634
F.3d at 202, and requires that we vacate Highsmith’s sentence and remand the case for
resentencing.
II. Highsmith’s Sentence under § 924(c)
It remains for us to address Highsmith’s original argument on appeal. Highsmith
argues that the district court committed procedural error by failing to expressly and
specifically adopt the factual predicate necessary for a conviction under
§ 924(c)(1)(A)(iii), the weapons offense that carries a ten-year mandatory minimum.
Because he did not raise this issue below, we review the question for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993). If we determine that the district court plainly
erred, and that the error affects substantial rights, we may, at our discretion, correct the
forfeited error, but only if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks and brackets omitted).
In addition to our plain-error review, we review all district court sentencing decisions for
both procedural and substantive errors. See United States v. Cavera, 550 F.3d 180, 189
(2d Cir. 2008) (en banc).
Highsmith contends that the district court must specifically and expressly adopt
facts from the PSR relevant to determining the appropriate sentence. That argument is
without merit. We have repeatedly held that “[a] district court satisfies its obligation to
8
make the requisite factual findings when it indicates in its written judgment that it is
adopting the findings set forth in the PSR.” United States v. Eyman, 313 F.3d 741, 745
(2d Cir. 2002); see also United States v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000)
(affirming the district court’s imposition of a Guidelines sentence where “the district
court adopted the factual findings of the [PSR], which provided an ample basis to
support” the sentence). Thus, by adopting the facts as outlined in the PSR the district
court did not commit error, plain or otherwise, that would affect the sentence’s procedural
or substantive fairness.2
CONCLUSION
In light of the foregoing, we VACATE Highsmith’s sentence and REMAND the
case for resentencing consistent with this opinion and the Supreme Court’s opinion in
Dorsey.
2
We note, however, that the PSR’s only reference to the discharge of a firearm
described an event that occurred “[i]n the early 2000’s,” outside the 1997 to 1999 period
charged in Count One, during which Highsmith admitted to involvement in the
conspiracy and carrying a weapon in furtherance thereof. On the remand required by the
Supreme Court’s decision in Dorsey, the district court should address this incongruity,
and determine whether there is a factual basis for imposing a ten-year mandatory
minimum on Count Two, and if not, whether it nevertheless wishes to impose a total
sentence of twenty years’ imprisonment for other reasons.
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