     05-5213-cr
     USA v. Samas


 1                         UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2008
 6
 7
 8   (Submitted: August 11, 2008                 Decided: March 24, 2009)
 9
10                               Docket No. 05-5213-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                  Appellee,
17
18                  -v.-                                    05-5213-cr
19
20   ROCKY SAMAS,
21
22                  Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x

25          Present:            JACOBS, Chief Judge, WESLEY and HALL,
26                              Circuit Judges.
27
28          Defendant-Appellant Rocky Samas appeals from a judgment

29   of conviction entered by the United States District Court

30   for the District of Connecticut (Hall, J.) on September 29,

31   2005 .     He argues principally that the mandatory sentencing

32   scheme in 21 U.S.C. § 841(b) violates the Equal Protection

33   Clause of the Fourteenth Amendment because there is no

34   rational basis for the disparity between sentences for

35   powder and crack cocaine, and that the introductory language
1    in 18 U.S.C. § 3553(a) conflicts with the mandatory

2    sentencing provisions set forth in § 841(b) .   For the

3    following reasons, we affirm.

 4                               Charles F. Willson, Nevins &
 5                               Nevins LLP, East Hartford, CT,
 6                               for Defendant-Appellant.
 7
 8                               William J. Nardini, Assistant
 9                               United States Attorney, and
10                               Sandra S. Glover, Assistant
11                               United States Attorney (of
12                               counsel), for Nora R. Dannehy,
13                               Acting United States Attorney
14                               for the District of Connecticut,
15                               for Appellee.
16
17   PER CURIAM1 :
18
19        Rocky Samas appeals from a judgment of conviction

20   entered by the United States District Court for the District

21   of Connecticut (Hall, J.) on September 29, 2005.    He argues

22   principally that (1) the mandatory sentencing scheme in 21

23   U.S.C. § 841(b) violates the Equal Protection Clause of the

24   Fourteenth Amendment because there is no rational basis for

25   the disparity between sentences for powder and crack cocaine

26   and (2) that the introductory language in 18 U.S.C.

27   § 3553(a) conflicts with the mandatory sentencing provisions


          1
            We originally affirmed by summary order issued
     December 9, 2008. Upon motion of the government, we now
     withdraw that order and publish this decision in its place.


                                     2
1    set forth in § 841(b).   For the following reasons, we

2    affirm.

3

4                                  I

5        In January 2004, members of the Norwalk Police

6    Department learned from a confidential informant that a man

7    named Rocky Samas was selling large quantities of crack

8    cocaine in the greater Norwalk area.    The confidential

9    informant arranged to purchase crack cocaine from Samas at

10   Samas’ residence on January 6, 7, and 8, 2004.    The first

11   transaction involved 13.5 grams of crack cocaine; the second

12   27.3 grams; and the third 54.6 grams.    Thereafter, FBI

13   agents and police officers searched the homes of Samas and

14   an associate and discovered drugs, cash, and guns connected

15   with Samas’ narcotics business.

16       In November 2004, Samas pleaded guilty to two counts of

17   possession with intent to distribute and distribution of

18   five grams or more of cocaine base in violation of 21 U.S.C.

19   §§ 841(a)(1) and (b)(1)(B) (Counts Two and Three); one count

20   of possession with intent to distribute and distribution of

21   fifty grams or more of cocaine base in violation of 21

22   U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Four); and one



                                   3
1    count of possession with intent to distribute and

2    distribution of 500 grams or more of cocaine and five grams

3    or more of cocaine base in violation of 21 U.S.C.

4    §§ 841(a)(1) and (b)(1)(B) (Count Five).

5        Samas was sentenced principally to the mandatory

6    minimum term of 240 months’ imprisonment on Count Four, and

7    to concurrent sentences of 151 months on Counts Two, Three,

8    and Five.

9        Samas raised no objections at his sentencing.

10   Accordingly, we review his claims for plain error.

11

12                                  II

13       Samas argues that the mandatory sentencing scheme in 21

14   U.S.C. § 841(b) violates the Equal Protection Clause of the

15   Fourteenth Amendment because there is no rational basis for

16   the disparity between sentences for powder and crack

17   cocaine.    We have repeatedly rejected this argument.   See

18   United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir.

19   2008) (per curiam); United States v. Moore, 54 F.3d 92, 97-

20   99 (2d Cir. 1995); United States v. Then, 56 F.3d 464, 466

21   (2d Cir. 1995); United States v. Stevens, 19 F.3d 93, 96-97

22   (2d Cir. 1994).



                                    4
1        Samas contends that the Supreme Court’s recent decision

2    in Kimbrough v. United States, 128 S. Ct. 558 (2007), casts

3    doubt on the continued validity of the 100-to-1 powder to

4    crack cocaine ratio.     We disagree.   Nothing in Kimbrough

5    suggests that the powder to crack cocaine disparity in

6    § 841(b)is unconstitutional.     See United States v. Lee, 523

7    F.3d 104, 106 (2d Cir. 2008) (stating in dicta that “[i]t is

8    not apparent to us that the principles set forth in

9    Kimbrough have any application to mandatory minimum

10   sentences imposed by statute”).

11       The Kimbrough Court explained that the federal

12   narcotics “statute, by its terms, mandates only maximum and

13   minimum sentences . . . .     The statute says nothing about

14   the appropriate sentences within these brackets . . . .”

15   128 S. Ct. at 571.     Thus Kimbrough bears upon the discretion

16   of district judges to sentence within the maximum and

17   minimum sentence “brackets.”     Kimbrough does not disturb our

18   precedents rejecting challenges to the constitutionality of

19   the mandatory sentencing scheme in § 841(b).

20

21

22



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1                                   III

2        Samas contends that the parsimony clause in 18 U.S.C.

3    § 3553(a) conflicts with the mandatory sentencing provisions

4    in § 841(b).   In relevant part, § 3553(a) directs district

5    courts to “impose a sentence sufficient, but not greater

6    than necessary, to comply with the purposes set forth in

7    paragraph (2) of this subsection.”     The balancing required

8    under this provision, Samas contends, is incompatible with a

9    mandatory sentencing scheme.

10       We recently rejected the argument that § 3553(a)

11   conflicts with statutory minimum sentences in reviewing a

12   sentence applying the firearms enhancement in 18 U.S.C.

13   § 924(c).   As we held in United States v. Chavez, a district

14   court must impose a statutorily mandated sentence even if

15   the court would reach a different determination if it

16   considered only § 3553(a).     549 F.3d 119, 135 (2d Cir.

17   2008).   We explained that statutory minimum sentences are in

18   “‘tension with section 3553(a), but that very general

19   statute cannot be understood to authorize courts to sentence

20   below minimums specifically prescribed by Congress . . . .’”

21   Id. (quoting United States v. Roberson, 474 F.3d 432, 436

22   (7th Cir. 2007)); see also United States v. Franklin, 499



                                     6
1    F.3d 578, 585 (6th Cir. 2007) (rejecting argument that

2    mandatory sentences conflict with parsimony clause, because

3    “§ 3553(a) factors do not apply to congressionally mandated

4    sentences”).   We reach the same conclusion with respect to

5    mandatory sentences imposed under § 841(b).

6        The wording of § 3553(a) is not inconsistent with a

7    sentencing floor.   The introductory language of the federal

8    sentencing scheme is qualified: “[e]xcept as otherwise

9    specifically provided, a defendant who has been found guilty

10   of an offense described in any Federal statute . . . shall

11   be sentenced in accordance with the provisions of this

12   chapter so as to achieve the purposes set forth in

13   subparagraphs (A) through (D) of section 3553(a)(2) . . . .”

14   18 U.S.C. § 3551(a) (emphasis added).   In this case,

15   § 841(b)(1)(A) specifically provides for a mandatory minimum

16   sentence of twenty years.   See United States v. Kellum, 356

17   F.3d 285, 289 (3d Cir. 2004) (“[T]he mandatory minimum

18   sentence[] Kellum was exposed to pursuant to . . . 21 U.S.C.

19   § 841(b)(1)(A) clearly fit within the ‘except as otherwise

20   specifically provided’ exclusion of § 3551(a).” (footnotes

21   omitted)).

22



                                   7
1        Further, § 3553(e) and § 3553(f) enumerate limited

2    circumstances in which a district court may depart from a

3    statutory minimum sentence.   See Franklin, 499 F.3d at 585

4    (holding that § 3553(e) and § 3553(f) are sole provisions

5    permitting departure from a mandatory minimum sentence);

6    Kellum, 356 F.3d at 289 (same).    These provisions would be

7    surplusage if we adopted Samas’ interpretation of § 3553(a).

8        Accordingly, we reject Samas’ effort to avoid the

9    mandatory minimum sentence in § 841(b)(1)(A).

10

11                                 IV

12       Samas’ final argument is that we should remand to the

13   district court for resentencing on Counts Two, Three, and

14   Five pursuant to Regalado, 518 F.3d at 149.     Samas is

15   concerned that the district court might not have appreciated

16   its discretion to depart from the sentencing guidelines

17   based on the powder to crack cocaine disparity.     Even if the

18   district court erroneously imposed sentences of 151 months

19   on Counts Two, Three, and Five, Samas cannot show (as he

20   must for plain error review) that the error affected his

21   substantial rights, because those sentences are to run

22   concurrently with the mandatory minimum sentence of 240



                                   8
1    months on Count Four.   See United States v. Outen, 286 F.3d

2    622, 640 (2d Cir. 2002) (“[A]n erroneous sentence on one

3    count of a multiple-count conviction does not affect

4    substantial rights where the total term of imprisonment

5    remains unaffected . . . .”); see also United States v.

6    Ogman, 535 F.3d 108, 111 (2d Cir. 2008) (denying Regalado

7    remand because sentence was driven by guideline provision

8    unrelated to powder to crack cocaine ratio in guidelines).

9

10                             CONCLUSION

11       For the foregoing reasons, the judgment of the district

12   court is affirmed.




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