         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




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