UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ACIENTO TYRONE WILLIAMS, a/k/a "Dante",
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00050-JPB-DJJ-1)
Submitted: August 9, 2012 Decided: May 28, 2013
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Kirk H. Bottner, BOTTNER & SKILLMAN, ATTORNEYS AT LAW, Charles
Town, West Virginia, for Appellant. William J. Ihlenfeld, II,
United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aciento Tyrone Williams appeals his sixty-month sentence
imposed after he pled guilty pursuant to a plea agreement to one
count of distributing cocaine base, in violation of 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2012). Williams’
sole assertion is that the district court erred when it
sentenced him to the statutory mandatory minimum sentence
applicable to his crime before the Fair Sentencing Act (“FSA”)
became effective. We vacate and remand for resentencing.
Because Williams did not argue that he should be sentenced
under the FSA in the district court, we review for plain error.
See United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010)
(holding that “plain-error review applies when a party lodges an
objection to the sort of procedural sentencing error at issue
here for the first time on appeal”). Under that standard of
review, Williams must establish that “an error occurred, that
the error was plain, and that the error affected his substantial
rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). “[I]t is enough that an error be ‘plain’ at the time of
appellate consideration for the second part of the . . . test to
be satisfied.” Henderson v. United States, 133 S. Ct. 1121,
1130-31 (2013) (internal quotation marks and alterations
2
omitted). 1 Even if Williams satisfies these requirements, we
retain discretion to correct the error, which we will not
exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Muhammad, 478 F.3d at 249.
Under Dorsey v. United States, 132 S. Ct. 2321 (2012), it
is now clear that the FSA is retroactively applicable to a
defendant who, like Williams, committed his offense prior to
August 3, 2010, but whose sentencing took place after the FSA’s
effective date. Dorsey, 132 S. Ct. at 2335. It is also clear
that because Williams pled guilty to distributing 12.2 grams of
cocaine base, under the FSA, there is no longer a statutory
mandatory minimum sentence applicable to his crime. See 21
U.S.C.A. § 841(b)(1)(B)(iii) (West Supp. 2012) (imposing five-
year statutory mandatory minimum sentence for crime involving
twenty-eight or more grams of cocaine base).
Because the district court plainly erred by failing to
retroactively apply the FSA to Williams’s sentencing, we must
assess whether this error affected his substantial rights. “To
satisfy this requirement in the sentencing context, the
1
This appeal was placed in abeyance for Henderson, which
concerned itself with whether an error satisfies the plain error
test only if it was clearly error under current law at the time
of trial. Henderson, 133 S. Ct. at 1124.
3
defendant must show that he would have received a lower sentence
had the error not occurred.” United States v. Knight, 606 F.3d
171, 178 (4th Cir. 2010). In this case, Williams’s status as a
career offender under USSG § 4B1.1 produced a Guidelines Range
of 188–235 months’ imprisonment. After granting the
government’s USSG § 5K1.1 motion for substantial assistance, the
district court lowered the range to 140–175 months’
imprisonment. The imposed sentence of sixty months, therefore,
entailed a dramatic downward departure from the advisory
Guidelines Range.
Even though the district court would have departed from the
same baseline absent the error, the record reflects that--absent
the floor of the statutory minimum--the district court would
have gone even lower. The district court noted that Williams
presented “one of the difficult cases,” and that Williams had
“made a sincere effort to change his life, hold a job,
[and] . . . to seek further education.” J.A. 33-34. The
district court then remarked: “But this is a mandatory minimum
case. And by statute, the least I can give is 60 months. And I
have given 60 months.” J.A. 34.
On this record, there is a “non-speculative basis” for us
to conclude that the district court’s error restricted its
sentencing discretion to impose a lower sentence. See Knight,
606 F.3d at 178. Because we conclude such an error “seriously
4
affected” the fairness of the judicial process, we exercise our
discretion to correct it and remand the matter to the district
court for resentencing under the FSA. 2 We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
2
We, of course, intimate no view as to whether the district
court should impose a different sentence on remand.
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