Filed: Nov. 09, 2012
Latest Update: Feb. 12, 2020
Summary: 11-5254-cr United States v. Anderson 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
Summary: 11-5254-cr United States v. Anderson 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 O..
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11-5254-cr
United States v. Anderson
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of November, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 DENNY CHIN,
8 Circuit Judges,
9 DAVID G. LARIMER,
10 District Judge.*
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 11-5254-cr
19
20 TOUSSAINT HUMPHRIES, AKA TOO, LEVON
21 AVINGER, AKA ALLEN LOW, FELIX LABOY,
22 AKA FLIP, RONNIE JAMES, AKA OFFICE
23 CLYDE, KAREEM FRANCIS, AKA RIKO, ROBERT
24 SINGLETON, AKA ROBERT VILLANUEVA, AKA
25 BASE, ERIC LOWE, AKA E-BO, HASSAN GILLEY,
26 BARRY WILLIAMS, AKA BISTRO, DESMOND
27 ROBINSON, AKA PENZ, EMILIANO GORDON,
28 AKA VITO,
29 Defendants,
*
The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
1 TRACY ANDERSON, AKA TRE BAG,
2
3 Defendant-Appellant.
4
5
6 FOR APPELLEE: Katherine Polk Failla, John J. O’Donnell,
7 Jr., Assistant United States Attorneys,
8 for Preet Bharara, United States Attorney
9 for the Southern District of New York,
10 New York, NY.
11
12 FOR APPELLANT: Darrell B. Fields, Assistant Federal
13 Public Defender, Federal Defenders of New
14 York, Inc., Appeals Bureau, New York, NY.
15
16 Appeal from the United States District Court for the
17 Southern District of New York (Scheindlin, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the United States District
21 Court for the Southern District of New York is AFFIRMED.
22 Defendant-Appellant Tracy Anderson (“Anderson”) appeals
23 from a December 14, 2011 order of the United States District
24 Court for the Southern District of New York (Scheindlin, J.)
25 reducing Anderson’s sentence to the statutory mandatory
26 minimum of 120 months. The panel has reviewed the briefs
27 and the record in this appeal and agrees unanimously that
28 oral argument is unnecessary because “the facts and legal
29 arguments [have been] adequately presented in the briefs and
30 record, and the decisional process would not be
31 significantly aided by oral argument.” Fed. R. App. P.
2
1 34(a)(2)(C). We assume the parties’ familiarity with the
2 underlying facts, the procedural history, and the issues
3 presented for review.
4 Anderson challenges his sentence on the grounds that
5 the Fair Sentencing Act (“FSA”), Amendment 750 to the
6 Sentencing Guidelines, U.S.S.G. § 1B1.10, and 18 U.S.C. §
7 3582(c)(2), should apply retroactively to enable the court
8 to sentence him below the statutory mandatory minimum in
9 effect at the time of his original conviction and
10 sentencing. We review a district court’s interpretation of
11 a statute de novo. See United States v. Williams, 551 F.3d
12 182, 185 (2d Cir. 2009).
13 In 2005, Anderson pled guilty to conspiracy to
14 distribute 50 grams or more of a substance containing
15 cocaine base (crack) and distribution and possession with
16 intent to distribute more than fourteen grams of crack; the
17 district court sentenced Anderson to 168 months’
18 imprisonment. In 2009, after the 2007 amendments to the
19 Guidelines, the district court granted Anderson’s motion for
20 a reduction in sentence and sentenced him to 135 months’
21 imprisonment. In 2011, after enactment of the FSA, Anderson
22 filed a second motion under 18 U.S.C. § 3582(c)(2) seeking
23 to have the district court reduce his sentence to the low
3
1 end of the revised Guidelines range of 87 to 108 months’
2 imprisonment. The district court reduced Anderson’s
3 sentence to 120 months’ imprisonment, but determined that
4 the court could not sentence Anderson to a term of
5 imprisonment below the statutory mandatory minimum in effect
6 at the time of his conviction and sentencing. We affirm.
7 The FSA does not apply retroactively to defendants who
8 were convicted and sentenced prior to August 3, 2010. See
9 United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010) (per
10 curiam). The Supreme Court’s decision in Dorsey v. United
11 States does not compel a different result.
132 S. Ct. 2321
12 (2012). In Dorsey, the Supreme Court determined that the
13 FSA’s “new, lower mandatory minimums [] apply to the post-
14 Act sentencing of pre-Act offenders.”
Id. at 2335. The
15 Court’s holding does not affect offenders who were sentenced
16 before the FSA took effect. See
id. (acknowledging that
17 application of the new mandatory minimums to pre-Act
18 offenders sentenced after the FSA’s enactment but not those
19 sentenced before that date “will create a new set of
20 disparities” but concluding that “this particular new
21 disparity . . . cannot make a critical difference”). As a
22 result, the revised Guidelines range has no bearing on
23 Anderson’s sentence; the court could not sentence him to a
4
1 term less than the statutory mandatory minimum of 120
2 months’ imprisonment in effect at the time of his conviction
3 and sentencing. See Williams, 551 F.3d at 185-86.
4 For the foregoing reasons, the judgment of the district
5 court is hereby AFFIRMED.
6
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5
