     11-153-cr
     United States v. Draughn

                          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 11th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Plaintiff-Appellee,
15
16                    -v.-                                               11-153-cr
17
18       JOHN DRAUGHN,
19                Defendant-Appellant,
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Joseph A. Vita, Law Office of
23                                             Joseph A. Vita, Port Chester,
24                                             New York.
25
26       FOR APPELLEE:                         Kathryn M. Martin, Katherine
27                                             Polk Failla, for Preet Bharara,
28                                             United States Attorney for the
29                                             Southern District of New York,
30                                             New York, New York.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Seibel, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        John Draughn appeals from the judgment of the United
 9   States District Court for the Southern District of New York
10   (Seibel, J.) sentencing him principally to 188 months’
11   imprisonment after he pleaded guilty to distributing fifty
12   grams and more of crack cocaine (Count I), five grams and
13   more of crack cocaine (Count II), and five hundred grams and
14   more of powder cocaine (Count III). After the plea but
15   before sentencing, Congress passed the Fair Sentencing Act
16   of 2010 (“FSA”), substantially lowering the statutory
17   maximum penalties for offenses involving crack cocaine.
18   Consistent with Second Circuit case law on the date of
19   sentencing, December 14, 2010, the district court concluded
20   that the FSA did not apply retroactively. See United States
21   v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011), abrogated by
22   Dorsey v. United States, 132 S. Ct. 2321 (2012). On June
23   21, 2012, the United States Supreme Court held that the FSA
24   applies retroactively to offenders who, like Draughn, were
25   sentenced after the FSA was enacted on August 3, 2010. See
26   Dorsey, 132 S. Ct. at 2335. We assume the parties’
27   familiarity with the underlying facts, the procedural
28   history, and the issues presented for review.
29
30        In the Plea Agreement, Draughn agreed not to file a
31   direct appeal challenging any sentence within or below the
32   stipulated range of 262 to 327 months. Since the 188-month
33   sentence imposed is below the stipulated range of 262 to 327
34   months’ imprisonment, Draughn has waived his right to
35   appeal. See United States v. Harrison, 699 F.3d 158 (2d
36   Cir. 2012) (per curiam).
37
38        For the foregoing reasons, and finding no merit in
39   Draughn’s other arguments, we hereby AFFIRM the judgment of
40   the district court.
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44
45
46


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