10-5145
United States v. McGee


                           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.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 11th day of June, two thousand thirteen.

PRESENT:      DENNY CHIN,
              RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
              JOHN F. KEENAN,
                        District Judge.*

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UNITED STATES OF AMERICA,
                    Appellee,

                         -v-                                 10-5145

DARIUS McGEE, AKA D, AKA D SMOOTH,
                    Defendant-Appellant,

LUT MUHAMMAD, AKA LUKE MUHAMMED, AKA LUT
BILLIE, AKA LUT MOHAMMAD, CARIBE BILLIE,
CHRISTOPHER HORTON, SAMUEL LEE, AKA SLICK,
EDGAR LEE POWELL, AKA E LEE, AKA EG, KEVIN
SIMS, AKA GHOST, CLAYTON BENJAMIN, AKA
COMPTON, TERRENCE SPANN, AKA BOAST,
                    Defendants.**
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       *
            The Honorable John F. Keenan, United States District Judge for
the Southern District of New York, sitting by designation.

       **
            The Clerk of the Court is directed to amend the official caption
to conform to the above. Although this appeal was previously consolidated
with the appeals of McGee's co-defendants (Docket Nos. 10-2865 and 10-4109),
those appeals were dismissed in a prior order. Only McGee's appeal remains
pending.
FOR APPELLEE:                JONATHAN S. FREIMANN, Assistant
                             United States Attorney (Robert M.
                             Spector, Assistant United States
                             Attorney, on the brief), for
                             Deirdre Daly, Acting United States
                             Attorney for the District of
                             Connecticut, Hartford,
                             Connecticut, and New Haven,
                             Connecticut.

FOR DEFENDANT-APPELLANT:     ROBERT J. SULLIVAN, JR., Law
                             Offices of Robert Sullivan,
                             Westport, Connecticut.

         Appeal from the United States District Court for the

District of Connecticut (Arterton, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the sentence of the district court is

VACATED and the case is REMANDED for re-sentencing.

         Defendant-appellant Darius McGee appeals from the

district court's December 17, 2010 judgment, entered after he

pled guilty to one count of conspiracy to possess with intent to

distribute and to distribute five grams or more of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846.

Because the district court concluded that the Fair Sentencing

Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372, did

not apply retroactively to conduct committed before the FSA was

enacted, McGee was sentenced to the ten-year mandatory minimum

required by the version of 21 U.S.C. § 841(b)(1)(B) in effect in

2009, when McGee committed the offense.   We assume the parties'


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familiarity with the facts, procedural history, and issues on

appeal.

           In light of Dorsey v. United States, 132 S. Ct. 2321

(2012), the district court erred by not sentencing McGee in

accordance with the FSA.   See Dorsey, 132 S. Ct. at 2335.     The

government argues that we should nonetheless affirm for two

reasons.   First, the government argues that McGee waived his

right to appeal in the plea agreement.    Because the government

previously stipulated to a remand for a full re-sentencing and

acknowledged our ability to hear the appeal and remand, we deem

the government to have waived this argument.

           Second, the government argues that the sentencing

error was harmless because McGee's crime actually involved more

than twenty-eight grams of cocaine base, which would subject him

to the same ten-year statutory minimum under the revised version

of section 841(b)(1)(B).   But if the drug quantity will trigger

the enhanced penalties in that section, that quantity must be

charged in the indictment.   See United States v. Thomas, 274

F.3d 655, 660 (2d Cir. 2001) (en banc).    Here, the grand jury

charged McGee with a crime involving only five grams or more of

cocaine base.   After reviewing the record, we are not convinced

that the government's evidence in this case was so "overwhelming

that the grand jury would have found" that McGee's crime

involved at least twenty-eight grams.    United States v.

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Confredo, 528 F.3d 143, 156 (2d Cir. 2008).    The facts and

circumstances in this case are distinguishable from those in

Confredo and United States v. Cotton, 535 U.S. 625 (2002).

Accordingly, we are not convinced the error here was harmless.

         We have considered the government's remaining

arguments and find them to be without merit.   Accordingly, we

VACATE and REMAND for re-sentencing in accordance with 21 U.S.C.

§ 841(b)(1)(C).

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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