                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 18a0005p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 EUGENE DOWNS,                                          ┐
                                Petitioner-Appellant,   │
                                                        │
                                                         >               No. 16-5368
        v.                                              │
                                                        │
                                                        │
 UNITED STATES OF AMERICA,                              │
                                Respondent-Appellee.    │
                                                        ┘

                          Appeal from the United States District Court
                      for the Eastern District of Tennessee at Greeneville.
             Nos. 2:09-cr-00117-2; 2:13-cv-00007—J. Ronnie Greer, District Judge.

                                  Argued: October 12, 2017

                             Decided and Filed: January 8, 2018

               Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
                                _________________

                                         COUNSEL

ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Chattanooga, Tennessee, for Appellant. William A. Roach, Jr., UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,
Tennessee, Nikki C. Pierce, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Greeneville, Tennessee, for Appellant. William A. Roach, Jr., UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       KETHLEDGE, Circuit Judge. Eugene Downs argues that the date on which he was
“sentenced” for his drug crime was not the date of his sentencing hearing—at which the court
 No. 16-5368                           Downs v. United States                                 Page 2


orally pronounced his sentence—but the date on which the court entered the criminal judgment
that reflected his sentence. We reject that argument and affirm.

       In 2010 Downs pled guilty to conspiring to distribute 50 grams or more of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. On August 2, 2010, the district court held a
sentencing hearing and orally pronounced a sentence of ten years’ imprisonment, which was then
the mandatory-minimum sentence for Downs’s crime.               The very next day, however, the
President signed the Fair Sentencing Act, which reduced from ten years to five the mandatory-
minimum sentence for distribution of 50 grams of crack. That reduction presumptively did not
apply to crimes (like Downs’s) committed before the Act’s effective date. See 1 U.S.C. § 109.
Another thirteen days later—on August 16, 2010—the district court entered its judgment in
Downs’s case.

       Almost two years later, the Supreme Court found the § 109 presumption rebutted as to
pre-Act offenders who were first sentenced after August 3, 2010 (i.e., the Act’s effective date).
See Dorsey v. United States, 567 U.S. 260, 281 (2012). Hence the Supreme Court held that the
Act did apply to defendants sentenced after August 3, 2010.

       Downs thereafter moved to vacate his sentence under 28 U.S.C. § 2255. Although
Downs’s sentencing hearing took place on August 2, 2010—before the Act’s effective date—
Downs argued that he was not “sentenced” until the district court entered its judgment on August
16, 2010.    The district court disagreed and denied Downs’s motion, holding that he was
sentenced on the date of his sentencing hearing. We review the court’s decision de novo. See
Raybon v. United States, 867 F.3d 625, 628 (6th Cir. 2017).

       The principal question here is whether Downs was sentenced at his sentencing hearing on
August 2 or instead upon the entry of his criminal judgment two weeks later. The answer to that
question is straightforward:     the law uniformly treats the date of the district court’s oral
pronouncement of sentence as the date of sentencing. For example, the federal sentencing statute
provides that the district court, “at the time of sentencing, shall state in open court the reasons for
its imposition of the particular sentence[.]” 18 U.S.C. § 3553(c). That statement of reasons “in
open court” comes at the time of the court’s pronouncement of sentence, not upon entry of
 No. 16-5368                         Downs v. United States                               Page 3


judgment days or weeks later. Similarly, the Federal Rules of Criminal Procedure—which are
themselves law, see 28 U.S.C. § 2072—provide that, “[a]t sentencing,” the district court must
(among other things) ensure that the defendant has discussed his presentence report with his
attorney, and “allow the parties’ attorneys to comment on the probation officer’s determinations
and other matters relating to an appropriate sentence[.]” Fed. R. Crim. P. 32(i)(1). And Rule
43(a)(3) provides that the defendant must be physically present at “sentencing.” All of these
things occur at the sentencing hearing (assuming the court pronounces the sentence then) rather
than when the court enters its judgment later. Thus, “[t]he term ‘sentencing’ in legal as in
ordinary language refers to the pronouncing of sentence by the judge in open court, rather than to
the subsequent recording of the sentence on a docket sheet.” United States v. Evans, 92 F.3d
540, 544 (7th Cir. 1996).

       Downs offers no authority to the contrary. Instead, he points out that his co-defendants
were sentenced under the Act (because their sentencing hearings took place after August 3,
2010); and Downs emphasizes the unfairness of applying the longer pre-Act mandatory
minimum only to him. But again we observe that “[a]s judges—as opposed to, say, legislators—
we can be sympathetic to this argument without being persuaded by it.” United States v.
Hughes, 733 F.3d 642, 647 (6th Cir. 2013). “We need legal grounds, not just equitable ones,” to
apply the Act here. Id. And Downs has provided none. Thus, the date of his sentencing was the
date of his sentencing hearing, which was before the Act’s effective date. Per Dorsey, therefore,
the Act did not apply to his sentencing and his sentence was lawful.

       Downs alternatively argues that his lawyer provided constitutionally ineffective
assistance when he failed to seek a continuance to move his sentencing hearing to a date after the
Act’s effective date. To obtain relief on this ground, Downs must first show that his “counsel’s
representation fell below an objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). To that end, Downs argues—just as a divided panel of the D.C.
Circuit held in a similar case, see United States v. Abney, 812 F.3d 1079, 1088 (D.C. Cir.
2016)—that no strategic purpose supported his counsel’s decision not to seek a continuance. But
we must evaluate that decision based on “counsel’s perspective at the time.” Strickland, 466
U.S. at 689. And from that perspective, unlike the court in Abney, we see the issue as one of
 No. 16-5368                          Downs v. United States                               Page 4


foresight rather than “strategy.” 812 F.3d at 1088. Strategy involves an allocation of resources
based in part on facts already known. Foresight, in contrast, requires an ability to predict things
that have not yet occurred. And Downs’s counsel was not constitutionally incompetent when he
failed to foresee that the Act’s reduced penalties would apply to crimes committed before the
Act’s effective date. To the contrary, under the federal savings statute, 1 U.S.C. § 109, federal
law has long presumed that “the penalties for a crime are those in place when the defendant
commits it.” Hughes, 733 F.3d at 644. Moreover, the Fair Sentencing Act itself said nothing
about having any retroactive effect. Id.

        Prior to the Supreme Court’s decision in Dorsey, therefore, § 109 “pointed like a road
sign towards the conclusion that the FSA did not apply” to crimes committed before the Act’s
effective date. Id. True, two years after the events at issue here, the Supreme Court held that the
Act did apply to pre-Act offenders who were first sentenced after the Act’s effective date.
Dorsey, 567 U.S. at 273. But the Court’s decision in Dorsey presented a notable exception to
Occam’s razor: rather than decide the case on the relatively simple ground of § 109, the Court
found that “[s]ix considerations, taken together” lined up to allow the Act to apply retroactively
to pre-Act offenders who were first sentenced after August 3, 2010. Id. Four dissenting Justices,
in addition to several circuit courts, apparently did not see that decision coming. See Dorsey,
567 U.S. at 290-95 (Scalia, J., dissenting); United States v. Tickles, 661 F.3d 212, 214-15 (5th
Cir. 2011); United States v. Sidney, 648 F.3d 904, 909-10 (8th Cir. 2011); United States v.
Fisher, 635 F.3d 336, 339-40 (7th Cir. 2011). We cannot fault Downs’s counsel for failing to
see it either.

        Finally, Downs suggests that his counsel provided ineffective assistance when he failed
to seek reconsideration of his sentence shortly after it was pronounced. District courts are
generally bound by the sentences they orally pronounce. See 18 U.S.C. § 3582(c); United States
v. Ross, 245 F.3d 577, 585-86 (6th Cir. 2001). Here, as shown above, the sentence was lawful,
which means that such a motion would have been futile. Nor was counsel ineffective when he
chose not to bring a direct appeal, since (for the same reason) an appeal would have been futile.
See United States v. Finley, 487 F. App’x 260, 265 (6th Cir. 2012).
 No. 16-5368                         Downs v. United States                                  Page 5


       In summary, we repeat what we said in Hughes: “Congress with a few keystrokes could
have included a retroactivity provision in the FSA . . . . But as judges we are confined to what
the law says.” 733 F.3d at 647. And here, as there, the law provides no ground for relief.

       The district court’s judgment is affirmed.
