                                        NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          _____________

               No. 10-1812
              _____________

    UNITED STATES OF AMERICA

                     v.

           RICHARD REEVEY,
      also known as Richard Reavey,
             Richard Reevey,
                Appellant
             _____________

Appeal from the United States District Court
       for the District of New Jersey
           (Crim. No. 3-08-527-1)
 District Judge: Honorable Joel A. Pisano
               _____________

               No. 10-1834
              _____________

    UNITED STATES OF AMERICA

                     v.

         ANTHONY WILLIAMS,
             a/k/a CHICK,
           Anthony Williams,
               Appellant
           ______________

Appeal from the United States District Court
       for the District of New Jersey
           (Crim. No. 3-08-445-2)
 District Judge: Honorable Joel A. Pisano
               _____________
                             Submitted Pursuant to LAR 34.1(a)
                                    November 19, 2010

              Before: BARRY, CHAGARES, and VANASKIE, Circuit Judges

                                  (Filed December 14, 2010)

                                      ______________

                                 OPINION OF THE COURT
                                     ______________


VANASKIE, Circuit Judge.

         These consolidated appeals present the question of whether the Fair Sentencing

Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (“FSA”), may be applied

retroactively to authorize the District Court to impose a sentence below the prescribed

mandatory minimum prison term in effect at the time the Appellants were sentenced. We

answer the question in the negative, and thus affirm the sentences imposed by the District

Court.

                                               I.

         As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

         On December 7, 2009, Appellant Richard Reevey pled guilty to a charge of

conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§

841(a), 841(b)(1)(B), and 846. Section 841(b)(1)(B) of Title 21 U.S.C. prescribes a

mandatory minimum prison term of five years and a maximum prison term of forty



                                               2
years.1 Reevey stipulated in his plea agreement that his offense conduct, which occurred

in March of 2007, included 10.8 grams of cocaine base. On March 11, 2010, the District

Court sentenced Reevey to the mandatory minimum term of five years.

       On August 26, 2009, Appellant Anthony Williams entered a plea of guilty to a

superseding Information charging him with conspiracy to distribute and possess with

intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B), and 846. Williams‟ criminal conduct took place between August

of 2007 and January of 2008. In his plea agreement, Williams stipulated that “the offense

and relevant conduct involved between 5 and 20 grams of cocaine base.” (A. 42.)

Hence, Williams was also subject to the mandatory minimum prison term. On March 11,

2010, Williams was sentenced to the five-year mandatory minimum sentence.

Responding to Williams‟ request for a downward departure based on the disparity in

treatment between crack and powder cocaine offenders, the District Court, after noting

that the “issue has been taken up by Congress,” declined to grant a downward departure.

(A. 93.)

       Both Reevey and Williams appealed their sentences, arguing that the District

Court erred in refusing to impose a sentence below the statutory mandatory prison term




1
  Section 846 of Title 21 U.S.C. provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the attempt
or conspiracy.” Thus, a conspiracy to distribute the minimum quantity of crack cocaine
triggering a mandatory prison term of at least five years carries with it the same sentence
as the substantive drug trafficking crime delineated in 21 U.S.C. § 841(b)(1)(B).
                                             3
of five years.2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We

have jurisdiction under 18 U.S.C. § 3742(a).

                                            II.

       Ordinarily, district court sentences are reviewed under a “deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Where, however, the

challenge to the sentence concerns the interpretation of a statute, we exercise plenary

review. See United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008).3

       Reevey argues on appeal that the District Court failed to adequately consider the

18 U.S.C. § 3553(a) factors when imposing the mandatory minimum sentence. Williams

claims on appeal that his sentence was unreasonable because the District Court did not

recognize the “scientific and constitutional flaws” in the crack cocaine sentencing

guidelines, and “[i]n the event that the [FSA is passed] during the pendency of this

appeal, the sentence that was imposed will be an illegal sentence.” (Williams‟ Br. at 18.)

       Appellants‟ arguments presuppose the existence of discretionary authority to

impose a prison term of less than five years in these cases. As the government notes,

however, statutory mandatory minimum sentences are binding law and are to be enforced

except in limited circumstances which are inapplicable here.


2
 We consolidated the appeals of Reevey, No. 10-1812, and Williams, No. 10-1834, by
order dated August 30, 2010.
3
 The government asserts that Reevey and Williams failed to preserve challenges to their
sentences so that our review must be limited to plain error. See United States v. Hawes,
523 F.3d 245, 249 (3d Cir. 2008). Because we discern no error by the District Court,
plain or otherwise, there is no need to determine whether Appellants‟ present arguments
were sufficiently preserved in the District Court.
                                               4
         Reevey‟s invocation of the § 3553(a) factors is foreclosed by United States v.

Kellum, 356 F.3d 285, 289-90 (3d Cir. 2004), where, in affirming the District Court‟s

sentence, we held that “it is now clear that § 3553(a) did not give the district court the

authority to sentence [appellant] below the statutorily mandated minimum sentence[.]”

Indeed, “it is clear that Congress intended that mandatory minimum sentences are not to

be affected by the general considerations of § 3553(a)(2) because that statute provides the

authority for the district court to depart below the statutorily mandated minimum

sentence.” Id. at 289. Under 18 U.S.C. § 3553(e), upon a substantial assistance motion

by the government, “the court shall have the authority to impose a sentence below a level

established by statute as a minimum sentence . . . .” Additionally, under § 3553(f), a

court “shall impose a sentence . . . without regard to any statutory minimum sentence” if

the “safety valve” factors are satisfied.4 18 U.S.C. § 3553(f); see Kellum, 356 F.3d at


4
    The factors include:

         (1) the defendant does not have more than 1 criminal history point, as
         determined under the sentencing guidelines;
         (2) the defendant did not use violence or credible threats of violence or
         possess a firearm or other dangerous weapon (or induce another participant
         to do so) in connection with the offense;
         (3) the offense did not result in death or serious bodily injury to any person;
         (4) the defendant was not an organizer, leader, manager, or supervisor of
         others in the offense, as determined under the sentencing guidelines and
         was not engaged in a continuing criminal enterprise, as defined in section
         408 of the Controlled Substances Act; and
         (5) not later than the time of the sentencing hearing, the defendant has
         truthfully provided to the Government all information and evidence the
         defendant has concerning the offense or offenses that were part of the same
         course of conduct or of a common scheme or plan, but the fact that the
         defendant has no relevant or useful other information to provide or that the
         Government is already aware of the information shall not preclude a
                                                5
289. “These two narrow exceptions are the only authority a district court has to depart

below a mandatory minimum sentence . . . .” Kellum, 356 F.3d at 289 (citing United

States v. Santiago, 201 F.3d 185, 187 (3d Cir. 1999); United States v. Villar, 184 F.3d

801, 803 (8th Cir. 1999)). It is undisputed that the government did not file substantial

assistance motions in either case and neither Reevey nor Williams qualify for application

of the § 3553(f) “safety valve.” Therefore, the two narrow exceptions to imposing the

statutory mandatory minimum sentence are inapplicable.

       As we recognized in United States v. Gunter, 462 F.3d 237, 248 (3d Cir. 2006),

unlike the advisory sentencing guidelines range, “the statutory minimum drug trafficking

penalty in 21 U.S.C. § 841(b) . . . is mandatory . . . .” See also Kimbrough v. United

States, 552 U.S. 85, 102-03 (2007) (“A person convicted of possession with intent to

distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years. .

. .”) (emphasis added). Thus, the District Court was obligated to impose five-year prison

terms in these cases.

                                            III.

       On August 3, 2010, approximately four months after Appellants were sentenced,

the President signed the FSA into law. Pertinent to these consolidated appeals, the FSA

amended the minimum amount of crack cocaine necessary to trigger the five-year

mandatory minimum prison term from five grams to twenty eight grams. FSA § 2(a)(2).

       determination by the court that the defendant has complied with this
       requirement.

18 U.S.C. § 3553(f). In light of their prior convictions, neither Reevey nor Williams
qualified for application of the safety valve.
                                             6
Reevey‟s acknowledged distribution of 10.8 grams of crack and Williams‟ stipulation to

responsibility for between five and twenty grams of cocaine base would not trigger the

five-year mandatory minimum sentence under the FSA. Reevey and Williams argue that

the FSA should be applied to them.

       The government asserts that retroactive application of the FSA is precluded by the

general “Savings Statute” found at 1 U.S.C. § 109. The Savings Statute, in pertinent part,

provides:

       The repeal of any statute shall not have the effect to release or extinguish
       any penalty, forfeiture, or liability incurred under such statute, unless the
       repealing Act shall so expressly provide, and such statute shall be treated as
       still remaining in force for the purpose of sustaining any proper action or
       prosecution for the enforcement of such penalty, forfeiture, or liability.

1 U.S.C. § 109. In effect, the Savings Statute mandates that a court apply the penalties in

place at the time the crime was committed unless the new law expressly provides

otherwise. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974). As

the Court in Marrero observed, the Savings Statute “has been held to bar application of

ameliorative criminal sentencing laws repealing harsher ones in force at the time of the

commission of an offense.” Id. (citations omitted). Moreover, the Savings Statute is

applicable to statutory amendments. United States v. Jacobs, 919 F.2d 10, 12-13 (3d Cir.

1990). In Jacobs, we held that the District Court could not apply a statutory amendment

in effect at the time of the defendant‟s sentencing that made her eligible for probation

because the statute in effect at the time of the commission of her crime precluded

eligibility for probation and Congress had not expressed an intention to give retroactive

effect to the statutory change. Id. at 13. It has also been held that courts must apply the

                                              7
statutory law in effect at the time of the commission of the offense even where a statute is

repealed while the case is on appeal. See Pipefitters Local Union No. 562 v. United

States, 407 U.S. 385, 434-35 (1972). Consequently, we have recognized that:

       it is possible that sometime in the future two defendants may receive
       different penalties for having committed essentially the same crimes—
       although at different times. Such a result may be considered anomalous,
       but it is Congress that has drawn the line. If penalties are to differ because
       of an arbitrarily selected date, it seems fairer that the severity of the penalty
       depend upon the voluntary act of a defendant in choosing the date of his
       criminal conduct than upon the date of sentencing, which could vary with
       the fortuities of criminal proceedings.

United States v. Caldwell, 463 F.2d 590, 594 (3d Cir. 1972) (citation omitted); see also

Marrero, 417 U.S. at 664 (explaining that defendant‟s argument for leniency was

“addressed to the wrong governmental branch. Punishment for federal crimes is a matter

for Congress, subject to judicial veto only when the legislative judgment oversteps

constitutional bounds.”).

       The general Savings Statute requires that any intent to “release or extinguish any

penalty” under an existing statute be “expressly provide[d]” in the subsequent

congressional enactment. The FSA does not contain an express statement that the

increase in the amount of crack cocaine triggering the five-year mandatory minimum is to

be applied to crimes committed before the FSA‟s effective date. Nor does it provide that

those sentenced before the FSA‟s effective date are to be re-sentenced. Therefore, the

FSA cannot be applied to Reevey and Williams.

       Our conclusion is consistent with the decision of every Court of Appeals to have

addressed this issue. See United States v. Lewis, ---F.3d---, No. 09-3329, 2010 WL


                                               8
4262020, at *3 (10th Cir. Oct. 29, 2010) (FSA “is not . . . retroactive and thus does not

apply to this case”); United States v. Brewer, ---F.3d---, No. 09-3909, 2010 WL 4117368,

at *7 n.7 (8th Cir. Oct. 21, 2010) (“[T]he Fair Sentencing Act contains no express

statement that it is retroactive, and thus the „general savings statute,‟ 1 U.S.C. § 109,

requires us to apply the penalties in place at the time the crime was committed.”); United

States v. Bell, --- F.3d ---, Nos. 09-3908, 09-3914, 2010 WL 4103700, at *10 (7th Cir.

Oct. 20, 2010) (“Like our sister circuits that have considered this issue, [] we conclude

that the savings statute operates to bar the retroactive application of the FSA.”); United

States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam) (affirming ten-year

mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in

August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act

from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.

2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains

no express statement that it is retroactive nor can we infer any such express intent from

its plain language”). We find this consistent line of authority to be compelling.5



5
 The Appellants‟ reliance on United States v. Douglas, Crim. No. 09-202, 2010 WL
4260221 (D. Me. Oct. 27, 2010), is misplaced and unpersuasive. In Douglas, the court
held that the FSA retroactively applied to a defendant who had yet to be “sentenced, but
who engaged in crack cocaine trafficking and pleaded guilty under the previous harsher
regime.” Id. at *1. Douglas is easily distinguishable from the present appeals. Here,
both Reevey and Williams committed their crimes and were sentenced before the FSA
was signed into law. As the authoring Judge of Douglas acknowledged in another
opinion issued that same day, the FSA does not apply to those who, like Reevey and
Williams, have already been sentenced. United States v. Butterworth, Crim. No. 06-62,
2010 WL 4362859, at *1 (D. Me. Oct. 27, 2010) (“Thus, this case is unlike United States
v. Douglas, Case No. 09-202 (D. Me. Oct. 27, 2010), where today I . . . ruled that for
                                              9
                                                IV.

       In conclusion, Appellants‟ crimes are governed by the five-year statutory

mandatory minimum sentence that was in effect at the time the crimes were committed.

See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). Accordingly, the sentences imposed by the

District Court will be affirmed.




sentences going forward the provisions of the Fair Sentencing Act do apply, even if the
criminal conduct occurred before its enactment . . . .”).

                                           10
