                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       August 21, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-3147
                                               (D.C. Nos. 2:04-CR-20140-CM-1 &
MAURICE TROTTER, a/k/a Mo,                            2:11-CV-02493-CM)
                                                            (D. Kan.)
             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.


      Maurice Trotter appeals from the district court’s decision denying a motion to

suppress items seized from a storage locker and from the district court’s amended

judgment, which resentenced him to 120 months’ imprisonment and a ten-year term

of supervised release. We vacate Mr. Trotter’s sentence and remand for

resentencing. We affirm the denial of the motion to suppress.



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I.

      Mr. Trotter was convicted of distribution and possession with intent to

distribute significant quantities of cocaine powder and crack cocaine as well as

conspiracy to possess with intent to distribute those substances. He was sentenced in

2005 to 168 months’ imprisonment to be followed by ten years of supervised release.

      We affirmed the judgment on direct appeal, but the Supreme Court granted

Mr. Trotter’s petition for certiorari, vacated our decision, and remanded for further

consideration in light of its recent opinion in Kimbrough v. United States, 552 U.S.

85 (2007). This court in turn remanded to the district court to clarify the basis for its

sentencing decision.

      The district court issued an order clarifying its decision. When Mr. Trotter’s

attorney did not file an appeal, he filed a pro se notice of appeal, which this court

dismissed as untimely.

      Mr. Trotter then sought collateral review through a 28 U.S.C. § 2255 motion,

arguing that his attorney was ineffective for failing to file a timely appeal from the

district court’s clarification order. The district court agreed. As a remedy, the

district court entered an amended judgment on May 29, 2013, imposing a sentence of

120 months1, with a ten-year term of supervised release. The district court explained

that this remedy would allow Mr. Trotter to appeal his sentence, as well as other


1
      Mr. Trotter had previously filed two motions for sentence reductions under
18 U.S.C. § 3582(c)(2) and been granted relief in 2011 and then in 2012.


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issues he had identified. Mr. Trotter timely filed a notice of appeal from the

amended judgment.

                                           II.

      Mr. Trotter first argues that the district court erred in sentencing him to ten

years of supervised release because the court sentenced him under the 2005 version

of 21 U.S.C. § 841(b)(1)(A)(iii). He contends that he should have been sentenced

under the Fair Sentencing Act of 2010 (FSA), which applies to all sentences imposed

after its effective date of August 3, 2010. See Dorsey v. United States, 132 S. Ct.

2321 (2012). We agree, as does the government. Under the FSA, his term of

supervised release should be eight years, instead of ten years. We therefore vacate

Mr. Trotter’s sentence and remand for resentencing.

      Mr. Trotter next argues that the district court erred in denying the motion to

suppress evidence seized from a storage unit. We conclude that he has waived this

issue. First, there is some question whether Mr. Trotter properly raised the

suppression issue in district court. The motion to suppress was filed by his brother

and codefendant, Mardell Trotter. Although Mr. Trotter filed a motion to join in

some of Mardell’s other pretrial motions, he did not ask to join in the motion to

suppress. At the hearing on the motion to suppress, however, Mr. Trotter’s attorney

did state that she had “joined in [the motion] basically for the result purposes.” R.,

Vol. 2 at 353. Perhaps this could constitute an adequate request to join in the motion

to suppress, but even assuming that to be the case, Mr. Trotter’s attorney went on to


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concede that her client did not have standing to challenge the search of the locker.

See id. (“Even though I’ve joined in basically for the result purposes, my client

actually doesn’t have standing in this matter. It’s [Mardell Trotter’s counsel’s]

issue.” (emphasis added)). By conceding in the district court that he did not have

standing to move to suppress the evidence seized from the storage locker, Mr. Trotter

has waived any argument on appeal that his Fourth Amendment rights were violated

by the search. We will therefore not disturb the district court’s denial of the motion

to suppress.

                                          III.

      We vacate Mr. Trotter’s sentence and remand for resentencing. We affirm the

denial of the motion to suppress.


                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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