                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-3737
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Larita Duncan,                          *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: October 17, 2011
                                 Filed: December 12, 2011
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Larita Duncan pleaded guilty to possessing five or more grams of crack
cocaine, in violation of 21 U.S.C. § 844(a). On November 22, 2010, the district
court1 sentenced Duncan to 60 months’ imprisonment, the applicable mandatory
minimum for offenses involving more than five grams of cocaine at the time Duncan
committed the offense, declining her request to apply the Fair Sentencing Act of 2010
(“FSA”) retroactively. On appeal, Duncan argues the district court erred in
concluding the FSA, which eliminated the five-year minimum sentence for offenses

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
involving more than five grams of cocaine, does not apply retroactively to her. We
affirm.

       Our precedent forecloses Duncan’s argument the FSA applies retroactively.2
See, e.g., United States v. Sidney, 648 F.3d 904, 906 (8th Cir. 2011) (“[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.”) (quoting United States v. Brewer, 624 F.3d 900,
909 n.7 (8th Cir. 2010)) (internal quotation marks and citation omitted); United
States v. Spires, 628 F.3d 1049, 1055 (8th Cir. 2011) (holding the Fair Sentencing
Act is not retroactive and the defendant is subject to the penalties in place at the time
he committed the crime); United States v. Finch, 630 F.3d 1057, 1063 (8th Cir. 2011)
(same). Relying on United States v. Douglas, 746 F. Supp. 2d 220 (D.Me. 2010),
Duncan argues, however, the district court’s failure to apply the FSA retroactively is
contrary to Congressional intent. As we recently acknowledged in Sidney, the district
court in Douglas, which has now been affirmed by the First Circuit, United States v.
Douglas, 644 F.3d 39 (1st Cir. 2011), held the necessary and fair implication of the
FSA is Congress intended the new mandatory minimums to apply to all defendants
sentenced after the enactment of the Act.3 Sidney, 648 F.3d at 907-08. We rejected
this reasoning in Sidney, explaining: “In the end, the fact remains that Congress
could easily have included a single sentence in the FSA to give it retroactive effect,


      2
        We note the Supreme Court recently granted certiorari on the issue of the
retroactive application of the FSA in two cases, consolidated for one hour of oral
argument: Hill v. United States, 417 F. App’x 560 (7th Cir. 2011), cert. granted, ---
S.Ct. ---, 2011 WL 3472365 (U.S. Nov. 28, 2011) (No. 11-5721), and United States
v. Fisher, 635 F.3d 336 (7th Cir. 2011), cert. granted sub nom Dorsey v. United
States, --- S.Ct. ---, 2011 WL 3422126 (U.S. Nov. 28, 2011) (No. 11-5683).
      3
      President Barack Obama signed the FSA into law on August 3, 2010,
surrounded by bipartisan Congressional leaders and the Attorney General. Pub. L.
No. 111-220, 124 Stat. 2372 (Aug. 3, 2010).

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but for whatever reason, it did not do so. It is beyond the province of this Court to
do so now.” Id. at 908; see also United States v. Orr, 636 F.3d 944, 958 (8th Cir.
2011) (“Thus, as we have previously recognized, Congress expressed no desire in the
FSA that the law be applied retroactively, and consequently the federal Savings
Statute clearly forecloses [defendant’s] argument for retroactive application.”).

      Accordingly, we affirm the district court’s judgment.

BYE, Circuit Judge, concurring in the judgment.

       Because I am bound by Circuit precedent, see United States v. Brewer, 624
F.3d 900, 909 n.7 (8th Cir. 2010), I reluctantly concur in the judgment. I write
separately to express my disagreement with this Court’s conclusion in Brewer the
absence of an express statement of retroactivity in the FSA precludes its retroactive
application to defendants sentenced after its enactment. Currently, the circuits are
split on this issue. Compare United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011)
(holding the FSA requires application of the new mandatory minimums to all
defendants sentenced after the enactment of the Act, irrespective of when the offense
conduct occurred); United States v. Douglas, 644 F.3d 39, 44 (1st Cir. 2011) (same);
and United States v. Rojas, 645 F.3d 1234, 1240 (11th Cir. 2011) (same), rehearing
en banc granted and opinion vacated, -- F.3d --, 2011 WL 4552364 (11th Cir. Oct. 4,
2011) with United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011) (concluding
the absence of an express statement of retroactivity bars the retroactive application
of the FSA); United States v. Acoff, 634 F.3d 200, 201-02 (2d Cir. 2011) (per curiam)
(same); United States v. Edwards, 2011 WL 3419617, at *5 (6th Cir. 2011) (slip
copy) (same). The Ninth Circuit has not yet spoken on this precise issue, see United
States v. Baptist, 646 F.3d 1225, 1227-28 (9th Cir. 2011) (per curiam) (holding the
FSA does not apply retroactively to defendants whose conduct and sentencing
occurred prior to the enactment of the Act) (emphasis added), and the Fourth Circuit
has declined to address it, see United States v. Jones, 2011WL 4098028, at *1 (4th

                                         -3-
Cir. 2011) (slip copy) (expressing no view on the FSA’s retroactive applicability to
defendants whose offenses were committed before the law’s enactment but who were
sentenced after the FSA’s passage). I agree with the circuit courts holding the fair
and necessary implication of the FSA is Congress intended the new mandatory
minimums to apply to all sentences after the Act’s enactment. See, e.g., Dixon, 648
F.3d at 203.

       In Brewer, this Court held “the Fair Sentencing Act contains no express
statement that 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.” 624
F.3d at 909 n.7. But the Supreme Court’s interpretation of the savings statute is not
as narrow as Brewer makes it to be. The Supreme Court has held the savings statute
“cannot justify a disregard of the will of Congress as manifested, either expressly or
by necessary implication, in a subsequent enactment.” Great N. Ry. Co. v. United
States, 208 U.S. 452, 465 (1908) (emphasis added). Thus, the savings statute “must
be enforced unless, either by express declaration or necessary implication, arising
from the terms of the law as a whole, it results that the legislative mind will be set at
naught by giving effect to the provisions of [the statute].” Id.; see also Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 659 n. 10 (1974) (stating “only if
[the statute at issue] can be said by fair implication or expressly to conflict with [the
savings statute] would there be reason to hold [the statute at issue] superseded [the
savings statute]”) (emphasis added). I join in the reasoning of those circuit courts
which have concluded, notwithstanding the absence of an express statement of
retroactivity, the necessary, fair, and only implication of the FSA is Congress
intended for the new mandatory minimums to apply to all defendants sentenced after
the enactment of the Act. See, e.g., Dixon, 648 F.3d at 200-03; Douglas, 644 F.3d at
43-46; see also United States v. Holcomb, -- F.3d --, 2011 WL 3795170, at *10-18
(7th Cir. 2011) (Williams, J., dissenting from denial of rehearing en banc).




                                          -4-
       As stated in its Preamble, Congress passed the FSA to “restore fairness” to
federal cocaine sentencing. It sought to do so by establishing new mandatory
minimums and expecting sentencing courts to begin applying these new mandatory
minimums immediately. To hold otherwise, begs the question others have asked
before me: “[W]hy would Congress want sentencing judges to continue to impose
sentences that it had already declared to be unfair?” Holcomb, 2011 WL 3795170,
at * 13 (Williams, J., dissenting) (emphasis in original); see also United States v.
Douglas, 746 F. Supp. 2d 220, 229 (D.Me. 2010). I cannot find an appropriate
answer to this question in our Circuit precedent. Despite being bound by precedent,
I cannot agree the absence of an express statement of retroactivity in the FSA means
Congress intended for sentencing judges to continue to impose unfair sentences even
after the passage of the Act, for such a practice undoubtedly produces an absurd
result. Therefore, I reluctantly concur in the judgment.
                        ______________________________




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