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United States of America v. Joshua Acoff

February 9, 2011

UNITED STATES OF AMERICA, APPELLANT,
v.
JOSHUA ACOFF, APPELLEE.



Per curiam.

10-285-cr

United States of America v. Joshua Acoff

Submitted on: January 31, 2011

Before: CALABRESI, and LYNCH, Circuit Judges, MURTHA, District Judge.*fn1

Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court accepted Acoff's plea of guilty to that offense, it declined to sentence him pursuant to Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and admitted to by Acoff. The government appealed. We find that the district court acted unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum. Accordingly, we vacate the judgment of the district court and remand the case so that Acoff can be resentenced consistent with the statutory mandate.

VACATED and REMANDED.

19 Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine 20 base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court 21 accepted Acoff's plea of guilty to that offense, it declined to sentence him pursuant to 22 Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the 23 indictment and admitted to by Acoff. In lieu of the sixty-month sentence mandated by the 24 statute, the district court sentenced Acoff to fifteen months in prison, over the 25 government's objection. The district court justified its decision by observing that the 1 100-to-1 ratio between crack and powder cocaine sentences established by the statute then 2 in force "does not make sense at all." The government appealed.

3 The district court manifestly erred in sentencing Acoff to a term below the 4 statutory minimum. As the Supreme Court has explained, "the scope of judicial 5 discretion with respect to a sentence is subject to congressional control." Mistretta v. 6 United States, 488 U.S. 361, 364 (1989). Accordingly, except in circumstances not 7 applicable here,*fn2 district courts lack the authority to impose a sentence below the statutory 8 minimum. See Kimbrough v. United States, 552 U.S. 85, 108 (2007).

9 Acoff contends that the mandatory minimum sentence no longer applies to him in 10 light of intervening congressional legislation that reduced sentences for certain crack 11 cocaine offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 12 2372 (amending 21 U.S.C. § 841) ("FSA"). This argument is unavailing. Under the 13 general savings statute, 1 U.S.C. § 109, "[t]he repeal of any statute shall not have the 14 effect to release or extinguish any penalty . . . incurred under such statute, unless the 15 repealing Act shall so expressly provide, and such statute shall be treated as still 16 remaining in force for the purpose of sustaining any proper action or prosecution for the 1 enforcement of such penalty." Although Acoff argues that the savings statute does not 2 foreclose retroactive application of the FSA, we have recently held otherwise. See United 3 States v. Diaz, 627 F.3d 930 (2d Cir. 2010).

4 The fact that Acoff, unlike the defendant in Diaz, had not yet exhausted his appeals 5 when the FSA came into force does not change our analysis. Relying on Griffith v. 6 Kentucky, 479 U.S. 314 (1987), Acoff argues that principles of equal protection require 7 us to read the FSA as applying not only to future offenders, but also to those who violated 8 the statute before it was amended but whose sentences were not yet final when the FSA 9 was enacted. That is not correct. The constitutional concern that occupied the court in 10 Griffith was "the actual inequity that results when the Court chooses which of many 11 similarly situated defendants should be the chance beneficiary of a new rule." Id. at 323 12 (internal quotation marks and emphasis omitted). The Court's holding, which required 13 lower courts to apply new constitutional rules of criminal procedure to all cases not yet 14 final, was intended to account for the injustice that would result if the Court were to grant 15 certiorari and reverse one defendant's conviction, while otherwise applying the new rule 16 only prospectively. There is no suggestion in Griffith that similar constitutional concerns 17 would apply to a new rule announced by Congress. To the contrary, the Court found it 18 necessary to adopt the rule that it did precisely because "[u]nlike a legislature, we do not 19 promulgate new rules of constitutional criminal procedure on a broad basis." Id. at 322.

20 It is not irrational for Congress to impose a penalty on those who committed their 1 offenses at a time when they knew or should have known the severity of the applicable 2 penalty, even while reducing the penalty as to future offenders. Accordingly, "because 3 the FSA took effect . . . after [the defendant] committed his crimes 1 U.S.C. § 109 bars 4 the Act from affecting his punishment." Diaz, 627 F.3d at 391, quoting United States v. 5 Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (omission in the original).

6 Acoff next contends that the mandatory sentencing scheme in former 21 U.S.C. 7 § 841(b) violates the Equal Protection Clause of the Fourteenth Amendment, because 8 there is no rational basis for the disparity between sentences for crack and powder 9 cocaine. We have repeatedly rejected this argument. See United States v. Regalado, 518 10 F.3d 143, 149 n. 3 (2d Cir. 2008) (per curiam); United States v. Then, 56 F.3d 464, 466 11 (2d Cir. 1995); United States v. Moore, 54 F.3d 92, 97-99 (2d Cir. 1995); United States v. 12 Stevens, 19 F.3d 93, 96-97 (2d Cir. 1994). Nothing in the text or legislative history of the 13 Fair Sentencing Act undermines the validity of these prior decisions. As we have noted 14 in another context, "[a] congressional decision that a statute is unfair, outdated, and in 15 need of improvement does not mean that the statute when enacted was wholly irrational 16 or, for purposes of rational basis review, unconstitutional." Smart v. Ashcroft, 401 F.3d 17 119, 123 (2d Cir. 2005).

18 We have considered Acoff's remaining arguments and find them to be without 19 merit. Because we reject Acoff's arguments on the merits, we need not address the 20 government's argument that Acoff waived his right to ...

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