Opinion
No. 10-30057 Summary Calendar.
June 8, 2011.
Camille Ann Domingue, Assistant U.S. Attorney, Brett L. Grayson, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, Todd S. Clemons, Todd demons Associates, Lake Charles, LA, for Plaintiff-Appellee.
George Frazier, New Orleans, LA for Defendants-Appellants.
Jonathan Jermaine Guillory, Beaumont, TX, pro se.
Appeals from the United States District Court for the Western District of Louisiana, USDC No. 2:06-CR-20098-4.
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
James Marcus LeBlanc and Howard Ronald Guillory, Sr., appeal their mandatory minimum sentences, imposed pursuant to 21 U.S.C. § 841(b)(1)(A), (B), for their cocaine-distribution and conspiracy convictions. They contend: their sentences must be vacated; and they must be resentenced under the Fair Sentencing Act of 2010(FSA), Pub.L. No. 111-220, 124 Stat. 2372, enacted during the pendency of these appeals.
Because appellants raise issues based upon legislation enacted post-sentencing, our review is de novo. See United States v. Salazar, 542 F.3d 139, 144 (5th Cir. 2008) (interpretation of sentencing statute reviewed de novo); see also United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir. 2002) (plain-error review inapplicable where defendant had no opportunity to object).
FSA, signed into law on 3 August 2010, reset the amount of crack cocaine required to trigger mandatory-minimum sentences. After appellants filed their briefs on appeal, our court decided United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011), which held: FSA does not apply retroactively; and, because FSA does not impose a procedural or remedial change, it does not fall within an exception to the savings statute, 1 U.S.C. § 109 (repeal of penal statute does not have retroactive effect unless repealing statute expressly so provides).
Doggins forecloses most of appellants' contentions; to the extent it does not, the remaining contentions are without merit. Congress directed the Sentencing Commission to promulgate guidelines, policy statements, or amendments provided for in FSA "as soon as practicable", but it did not direct that any retroactive effect be given. See Pub.L. No. 111-220 § 8. Additionally, insofar as appellants contend FSA must apply immediately to correct a claimed equal-protection violation caused by the statute under which they were sentenced, our court has never recognized such a violation stemming from the sentencing disparity of the prior law. See, e.g., United States v. Fisher, 22 F.3d 574, 579 n. 21 (5th Cir. 1994) (noting cocaine-base sentencing disparity not unconstitutional).
AFFIRMED.