                                 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)

                Scott A. Krasny, Esquire
                    Furlong & Krasny
                 820 Bear Tavern Road
           Mountain View Office Park, Suite 304
                West Trenton, NJ 08628

                                 Counsel for Appellant Reevey

                  Paulette L. Pitt, Esquire
                         Suite 102
                     165 Main Street
                  Woodbridge, NJ 07095

                             Counsel for Appellant Williams

                  Mark E. Coyne, Esquire
               Sabrina G. Comizzoli, Esquire
              Office of United States Attorney
                      970 Broad Street
                         Room 700
                     Newark, NJ 07102

                                         Counsel for Appellee
                     ______________

                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

                             2
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.

        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 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‟

       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
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 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.)


       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
        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.

       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

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
18 U.S.C. § 3553(f); see Kellum, 356 F.3d at 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

      (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 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
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). 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

                              7
also been held that courts must apply the 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, 625 F.3d 1224, 1228 (10th Cir. 2010) (FSA
“is not . . . retroactive and thus does not apply to this case”);

                                8
United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir.
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, 624 F.3d 803, 814 (7th Cir. 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

                             IV.


       5
         The Appellants‟ reliance on United States v. Douglas,
--- F. Supp. 2d ---, 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 sentences going forward the
provisions of the Fair Sentencing Act do apply, even if the
criminal conduct occurred before its enactment . . . .”).

                               9
        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.




                              10
