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United States of America v. John Highsmith

August 8, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN HIGHSMITH, DEFENDANT-APPELLANT.



Per curiam.

11-48-cr

United States v. Highsmith

(Submitted: March 23, 2012

Before:

LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.

Defendant appeals from his sentence, following his plea of guilty, in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge), to one count of conspiracy to distribute at least 50 grams of crack cocaine and one count of weapons possession in furtherance of a drug-trafficking crime. After he committed the crimes for which he was convicted, but before he was sentenced, Congress passed the Fair Sentencing Act ("FSA"), which reduced the incarceration penalties applicable to the first conviction. While this appeal was pending, the Supreme Court decided Dorsey v.

United States, 132 S. Ct. 2321 (2012), which applied the lesser penalties created under the FSA retroactively to those defendants sentenced after the Act became law. Dorsey controls the outcome of this case. We therefore vacate the sentence and remand for resentencing.

Vacated and remanded.

Defendant-appellant John Highsmith pled guilty to one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii), and one count of weapons possession in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c). He appealed, arguing that the district court erred by failing to make a specific finding of fact as to whether the firearm, which he admits to having possessed in furtherance of a drug-trafficking crime, "[was] discharged" in violation of 18 U.S.C. § 924(c)(1)(A)(iii). While the appeal was pending, the Supreme Court decided Dorsey v. United States, 132 S. Ct. 2321 (2012), which held that the more lenient sentences Congress created under the Fair Sentencing Act ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010), applied to those defendants who were to be sentenced after the FSA became law for crimes committed before that event. Pursuant to our order, the parties briefed Dorsey's effect on Highsmith's sentence, and agree that we must vacate the sentence and remand for resentencing consistent with Dorsey. We write to make clear that Dorsey abrogates our decision in United States v. Acoff, 634 F.3d 200 (2d Cir. 2011), and to reject Highsmith's remaining argument that the district court plainly erred by adopting the presentence investigation report ("PSR") without making further fact- findings. We therefore vacate the sentence and remand for resentencing consistent with Dorsey and whatever additional fact-finding the district court deems necessary in light of this opinion.

BACKGROUND

On April 15, 2004, pursuant to a plea agreement, Highsmith pled guilty to a two- count superseding information. By that agreement, Highsmith acknowledged his participation in a drug conspiracy in the Gowanus Housing Development in Brooklyn, New York, from 1997 through June 1999.*fn1 Highsmith pled guilty to conspiring to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). Under the law at the time of the events of the conspiracy and at the time of the plea, the quantity of crack which Highsmith admitted he conspired to sell triggered a mandatory minimum sentence of ten years of incarceration. Id. § 841(b)(1)(A).

Highsmith also pled guilty to Count Two of the information, which alleged a violation of an unspecified subsection of 18 U.S.C. § 924(c). Section 924(c) generally prohibits a person from using or carrying a firearm in furtherance of "any crime of violence or drug trafficking crime." Id. The statute provides for mandatory minimum sentences, which must be served consecutively to sentences for the underlying "crime of violence or drug trafficking crime," for different uses of firearms: five years for possession, id. § 924(c)(1)(A)(i), seven years if the "firearm is brandished," id. § 924(c)(1)(A)(ii), and ten years "if the firearm is discharged," id. § 924(c)(1)(A)(iii). During the allocution regarding Count Two, Highsmith and the district court had the following colloquy:

THE COURT: Now with respect to the second count,

which is the firearm count, tell me what you did to ...


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