     12-3975
     United States v. Rowley

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               12-3975
16
17       RICARDO ROWLEY, aka Braisy,
18                Defendant-Appellant,
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DEVIN MCLAUGHLIN, Langrock Sperry
22                                             & Wool, LLP, Middlebury,
23                                             Vermont.
24
25       FOR APPELLEE:                         RAJIT S. DOSANJH, for Richard S.
26                                             Hartunian, United States
27                                             Attorney for the Northern
28                                             District of New York, Syracuse,
29                                             New York.

                                                  1
1         Appeal from orders of the United States District Court
2    for the Northern District of New York (Scullin, J.).
3
4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5    AND DECREED that the orders of the district court be
6    AFFIRMED.
7
8        Ricardo Rowley appeals from orders dated September 13

9    and 20, 2013, of the United States District Court for the

10   Northern District of New York (Scullin, J.), denying a

11   reduction in his sentence pursuant to 18 U.S.C. §

12   3582(c)(2).     Rowley seeks resentencing under the Fair

13   Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

14   (2010) (“FSA”).     The district court found him ineligible for

15   resentencing.     We assume the parties’ familiarity with the

16   underlying facts, the procedural history, and the issues

17   presented for review.

18       The FSA does not apply retroactively to defendants,

19   such as Rowley, who were convicted and sentenced prior to

20   August 3, 2010.     United States v. Diaz, 627 F.3d 930, 931

21   (2d Cir. 2010).     The Supreme Court’s decision in Dorsey v.

22   United States, holding that the reduced penalties of the FSA

23   apply to defendants who were convicted before the Act’s

24   enactment, but sentenced afterward, does not compel a

25   different result.     –- U.S. -- , 132 S.Ct. 2321, 183 L.Ed.2d

26   250 (2012).     See also United States v. Johnson, 732 F.3d

                                     2
1    109, 116 (2d Cir. 2013).   Our sister Circuits overwhelmingly

2    support this conclusion.   See United States v. Reeves, 717

3    F.3d 647, 650-51 (8th Cir. 2013) (listing other Circuits

4    addressing this issue).

5        Rowley’s reliance on United States v. Blewett, 719 F.3d

6    482 (6th Cir. 2013), is misplaced.   That decision arguably

7    contradicted binding circuit precedent in United States v.

8    Hammond, 712 F.3d 333 (6th Cir. 2013), and has since been

9    vacated by the Sixth Circuit for a rehearing en banc.     Dicta

10   in Dorsey also support the conclusion that Blewett was

11   wrongly decided.   See Dorsey, 132 S.Ct. at 2335 (“We have

12   explained how in federal sentencing the ordinary practice is

13   to apply new penalties to defendants not yet sentenced,

14   while withholding that change from defendants already

15   sentenced.”).   Since Blewett, every Circuit that has

16   considered this issue has declined to follow its lead.     See,

17   e.g., Reeves, 717 F.3d at 651; United States v. Clement, 723

18   F.3d 1028 (9th Cir. 2013); United States v. Harris, No. 13-

19   2711, 2013 WL 4083300 (3d Cir. Aug. 14, 2013).

20




                                   3
1       For the foregoing reasons, and finding no merit in

2   Rowley’s other arguments, we hereby AFFIRM the orders of the

3   district court.

4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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