11-153-cr
United States v. Draughn
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of January, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Plaintiff-Appellee,
15
16 -v.- 11-153-cr
17
18 JOHN DRAUGHN,
19 Defendant-Appellant,
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Joseph A. Vita, Law Office of
23 Joseph A. Vita, Port Chester,
24 New York.
25
26 FOR APPELLEE: Kathryn M. Martin, Katherine
27 Polk Failla, for Preet Bharara,
28 United States Attorney for the
29 Southern District of New York,
30 New York, New York.
1
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Seibel, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 John Draughn appeals from the judgment of the United
9 States District Court for the Southern District of New York
10 (Seibel, J.) sentencing him principally to 188 months’
11 imprisonment after he pleaded guilty to distributing fifty
12 grams and more of crack cocaine (Count I), five grams and
13 more of crack cocaine (Count II), and five hundred grams and
14 more of powder cocaine (Count III). After the plea but
15 before sentencing, Congress passed the Fair Sentencing Act
16 of 2010 (“FSA”), substantially lowering the statutory
17 maximum penalties for offenses involving crack cocaine.
18 Consistent with Second Circuit case law on the date of
19 sentencing, December 14, 2010, the district court concluded
20 that the FSA did not apply retroactively. See United States
21 v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011), abrogated by
22 Dorsey v. United States, 132 S. Ct. 2321 (2012). On June
23 21, 2012, the United States Supreme Court held that the FSA
24 applies retroactively to offenders who, like Draughn, were
25 sentenced after the FSA was enacted on August 3, 2010. See
26 Dorsey, 132 S. Ct. at 2335. We assume the parties’
27 familiarity with the underlying facts, the procedural
28 history, and the issues presented for review.
29
30 In the Plea Agreement, Draughn agreed not to file a
31 direct appeal challenging any sentence within or below the
32 stipulated range of 262 to 327 months. Since the 188-month
33 sentence imposed is below the stipulated range of 262 to 327
34 months’ imprisonment, Draughn has waived his right to
35 appeal. See United States v. Harrison, 699 F.3d 158 (2d
36 Cir. 2012) (per curiam).
37
38 For the foregoing reasons, and finding no merit in
39 Draughn’s other arguments, we hereby AFFIRM the judgment of
40 the district court.
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
45
46
2