United States v. Black

• Decision Date: 06 December 2013
• Docket Number: No. 13–6228.,13–6228.
• Citation: 737 F.3d 280
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Darnell BLACK, a/k/a Chuck, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

737 F.3d 280

UNITED STATES of America, Plaintiff–Appellee,

v.Darnell BLACK, a/k/a Chuck, Defendant–Appellant.

No. 13–6228.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 30, 2013.

Decided: Dec. 6, 2013.

ARGUED: G. Alan DuBois, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Yvonne Victoria Watford–McKinney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge DUNCAN joined. Judge KING wrote a separate concurring opinion.

NIEMEYER, Circuit Judge:

Darnell Black was sentenced in January 2007 to the statutory minimum of 120 months' imprisonment for conspiracy to traffic in more than 50 grams of crack cocaine. See21 U.S.C. § 841(b)(1). The Fair Sentencing Act, which was enacted in 2010, more than three years after Black was sentenced, reduced the statutory minimum sentence applicable to his circumstances from 120 months' imprisonment to 60 months' imprisonment. Black filed a motion under 18 U.S.C. § 3582(c)(2) to modify his sentence, contending that the reduced minimum sentences in the Fair Sentencing Act should apply to him. The district court denied his motion, relying on our decision in United States v. Bullard, 645 F.3d 237 (4th Cir.2011), in which we held that the Fair Sentencing Act does not apply retroactively.

For the reasons given herein, we affirm. We conclude that the statutory minimum sentences in the Fair Sentencing Act do not apply to a defendant sentenced before the Act's effective date. Moreover, we reject Black's argument that a § 3582(c)(2) proceeding conducted after the effective date of the Fair Sentencing Act provides a vehicle by which to apply the reduced minimum sentences in the Fair Sentencing Act to him.

I

Black pleaded guilty on September 14, 2006, to conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1). In the presentence report prepared for Black's sentencing, the probation officer recommended that Black be held accountable for 84.2 grams of crack cocaine and 26.8 grams of powder cocaine, yielding, after other adjustments not relevant here, a Sentencing Guidelines range of 97 to 121 months' imprisonment. Because the underlying drug trafficking offense involved more than 50 grams of crack cocaine, however, Black was subject to a statutory minimum sentence of 120 months' imprisonment, id. § 841(b)(1)(A) (2006), and therefore his sentencing range became 120 to 121 months' imprisonment. On January 23, 2007, the district court sentenced Black to 120 months' imprisonment, the statutory minimum.

More than three years later, Congress enacted the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111–220, 124 Stat. 2372, in response to extensive criticism about the disparity in sentences between crack cocaine offenses and powder cocaine offenses. See Dorsey v. United States, ––– U.S. ––––, 132 S.Ct. 2321, 2328–29, 183 L.Ed.2d 250 (2012). Among other things, the FSA reduced the statutory minimum sentences for crack cocaine offenses by increasing the quantity of crack cocaine necessary to trigger the minimums—raising the amount from 15 grams to 28 grams for the 5–year minimum sentence, and from 50 grams to 280 grams for the 10–year minimum sentence. See FSA § (2)(a). The Act left the statutory minimum sentences for powder cocaine in place. The effect of the changes was to reduce the sentencing disparity between crack cocaine offenses and powder cocaine offenses by lowering the crack-to-powder ratio from 100–to–1 to 18–to–1. The FSA also directed the Sentencing Commission to conform the Sentencing Guidelines to the new statutory minimums “as soon practicable.” Id. § 8. The Sentencing Commission thereafter promulgated amendments to the Guidelines, reducing the recommended sentencing ranges to levels consistent with the FSA, to be applied retroactively. See U.S.S.G.App. C Amends. 750, 759 (2011). Comments to the Guidelines, however, explain that retroactive amendments do not alter statutory minimum terms of imprisonment. SeeU.S.S.G. § 1B1.10, cmt. n. 1(A).

On October 18, 2012, Black filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Black claimed that because the FSA had lowered the statutory minimum for the amount of crack cocaine for which he was accountable from 120 months' imprisonment to 60 months' imprisonment and the Sentencing Commission had, as required by the FSA, reduced its recommended sentencing ranges for crack cocaine to the same extent, his sentence should be reduced accordingly.

The district court denied Black's motion, relying on our decision in Bullard to state that “[t]he Fourth Circuit, like most others, has held that the FSA mandatory minimums do not apply retroactively.” The court therefore concluded that while “application of the retroactive FSA guidelines to this matter results in a new guideline range of fifty-one to sixty-three months ... [the] defendant still faces a pre-FSA mandatory minimum of 120 months' imprisonment.”

Black filed this appeal, arguing primarily that even though the Supreme Court's decision in Dorsey may not have directly overruled Bullard, it nonetheless provides the rationale for applying the FSA to his § 3582(c)(2) proceeding and thereby for modifying his 120–month sentence, which had been imposed in 2007 before the effective date of the Act.

II

Black contends that the Supreme Court's decision in Dorsey, while not holding that the FSA applies to a § 3582(c)(2) proceeding, implies such a result through its reasoning. He recognizes Dorsey's narrow holding that persons sentenced after the effective date of the FSA for an offense committed before the effective date should be sentenced pursuant to the FSA. To apply that holding, he reasons that a § 3582(c)(2) proceeding is a sentencing proceeding, and therefore, because his § 3582(c)(2) proceeding took place after the FSA's effective date, he should be sentenced under the FSA, which establishes a reduced statutory minimum sentence of 60 months' imprisonment for the amount of drugs involved in his crime.

To reach this conclusion, he relies on the reasons the Dorsey Court gave for concluding that a defendant who commits a crime before the effective date of the FSA but was sentenced after the effective date should have the benefit of the FSA. He argues that just as Dorsey's holding did no violence to the basic principles governing the retroactivity of legislation, a holding applying the FSA to § 3582(c)(2) proceedings would similarly do no such violence. This is because, he explains, a sentencing court generally applies the Sentencing Guidelines in effect on the date of sentencing,18 U.S.C. § 3553(a)(4)(A)(ii), and the FSA was enacted against that statutory background. He contends that his construction is confirmed by the FSA's directive to the Sentencing Commission to conform its Guidelines to the FSA “as soon as practicable” and by the Sentencing Commission's response in promulgating reduced Guidelines ranges, to be applied retroactively. Moreover, he argues, as a policy consideration, the Supreme Court in Dorsey recognized that the FSA was enacted to eliminate disparities and application of the FSA through § 3582(c)(2) would eliminate disparities. As he states:

It follows from the reasoning of Dorsey that Congress intended that the Fair Sentencing Act's more lenient mandatory minimums also apply in § 3582(c)(2) proceedings based on the retroactive FSA guideline amendments.

While Black's logical development is neat, it overlooks and therefore fails to address legal realities. First, there is no language in the FSA explicitly providing or even suggesting that it be applied retroactively. Second, Dorsey resolved a tension between 1 U.S.C. § 109 and 18 U.S.C. § 3553(a)(4) with reasoning that would not apply to a sentence-modification proceeding under § 3582(c)(2). Third, without precedential support from Dorsey, Black is bound by our decision in Bullard, which held that the FSA is not retroactive. And fourth, a § 3582(c)(2) proceeding is not a sentencing proceeding as addressed in Dorsey, and, moreover, the language of § 3582(c)(2) itself limits its applicability to the situation where the defendant was sentenced based on a sentencing range that subsequently was reduced by the Sentencing Commission. We address the second, third, and fourth points in further detail.

A

In construing the FSA, the Dorsey Court was faced with the task of resolving the tension between the principles inherent in two statutes that seemed to pull in opposite directions. Section 109 of Title 1, which is a statute of general applicability, provides, as the Dorsey Court described it, that “a new criminal statute that repeals an older criminal statute shall not change the penalties incurred under that older statute unless the repealing Act shall so expressly provide.” Dorsey, 132 S.Ct. at 2330 (internal quotation marks and alterations omitted). Section 3553(a)(4)(A)(ii) of Title 18, on the other hand, provides, again as the Dorsey Court described it, that “regardless of when the offender's conduct occurs, the applicable Guidelines are the ones in effect on the date the defendant is sentenced.” Id. at 2331 (internal quotation marks omitted). The Court observed that the language of these...