                                                    NOT PRECEDENTIAL



            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 10-2195


                UNITED STATES OF AMERICA

                                v.

                     SHANE D. WILLIAMS,
                       a/k/a Elijah Williams
                     a/k/a DaShane Williams

                     SHANE D. WILLIAMS,
                                  Appellant


          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                      (D.C. No. 1-09-cr-048)
            District Judge: Hon. William W. Caldwell




            Submitted Under Third Circuit LAR 34.1(a)
                         April 29, 2011

Before: BARRY, HARDIMAN, and TASHIMA,* Circuit Judges

                      (Filed: May 12, 2011)




      *
         Hon. A. Wallace Tashima, Senior Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
                                        OPINION

TASHIMA, Circuit Judge.

       Shane D. Williams appeals his sentence of 151 months’ imprisonment for violation

of 21 U.S.C. § 846 involving conspiracy to distribute cocaine base. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.

                                             I.

       Williams pled guilty to a one-count information charging him with conspiracy to

distribute cocaine base in violation of 21 U.S.C. § 846 on November 9, 2009. Although

the parties stipulated in Williams’ plea agreement that they would make a non-binding

recommendation to the court of the amount of crack cocaine involved in the case for

purposes of the Sentencing Guidelines calculation, no drug quantity was charged in the

superseding information. Accordingly, Williams was exposed to a 20-year statutory

maximum penalty, but no mandatory minimum sentence applied to him. 21 U.S.C.

§ 841(b)(1)(C); see United States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006) (“[T]he

maximum penalty for possession with intent to distribute an unspecified quantity of a

mixture or substance containing cocaine base is 20 years, and the maximum penalty for

possession with intent to distribute five grams or more of a mixture or substance that

contains cocaine base is 40 years[.] Thus, in this case, both the drug type and amount

serve to increase the maximum statutory penalty, and must be treated as ‘elements’ of the

offense.”) (emphasis removed) (footnote and citations omitted).



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       On April 16, 2010, Williams appeared before the District Court for sentencing.

The parties agreed that under the Sentencing Guidelines, Williams’ total Offense Level

was 30 and that he was in Criminal History Category VI, making the advisory Guidelines

range 168 to 210 months. Williams argued, however, that the Guidelines range was too

high for a number of reasons, noting in particular the disparate treatment of quantities of

crack and powder cocaine in the Guidelines, the disproportionate impact of that treatment

on African-American defendants, and that “the Senate has passed a bill that would

substantially reduce this disparity.”

       The District Court noted that it was “aware of the discrepancy between crack and

powder cocaine and the matters that are going on now to try to do away with that,” and

that “there’s some justification” for the Department of Justice’s position that “the law is

the law at the time of sentencing.” The District Court concluded that there was a basis for

“some minor variance” “not . . . on the basis of the [crack-powder cocaine] discrepancy,”

and sentenced the defendant to a 151-month term of imprisonment.

       This appeal followed.

                                             II.

       Although we ordinarily review a district court’s imposition of a sentence for abuse

of discretion, where “the challenge to the sentence concerns the interpretation of a statute,

we exercise plenary review.” United States v. Reevey, 631 F.3d 110, 112 (3d Cir. 2010).

       Williams argues that the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124



                                              3
Stat. 2372 (2010) (“FSA”), must be applied to his case, which was pending on appeal on

August 3, 2010, the date the FSA went into effect. Specifically, Williams contends that

the general “Savings Statute” codified at 1 U.S.C. § 109 does not apply to the FSA

because of congressional findings undermining the previous crack sentencing regime, that

harsher sentences prior to the FSA disproportionately impact African-Americans, and that

the Equal Protection Clause compels the conclusion that the Savings Statute not apply to

individuals sentenced before the FSA went into effect but whose cases were still pending

on appeal.1 These arguments are foreclosed by our recent decision in Reevey, in which

we held that, given the Savings Statute, the FSA “cannot be applied” to defendants whose

appeals were pending when the FSA went into effect because the FSA does not expressly

provide for the release of the prior penalty. Reevey, 631 F.3d 114-15.

       Williams filed his brief before our precedential decision in Reevey. We therefore

directed him to submit a letter explaining the effect of Reevey on this appeal. In his letter

brief, Williams notes that the defendants in Reevey were sentenced pursuant to mandatory

minimum penalties. Williams, by contrast, was sentenced pursuant to the 2009 edition of

the Sentencing Guidelines, not pursuant to any statutory, mandatory minimum term of

imprisonment.




                    1
                          To the extent that Williams argues that the crack-
            powder disparity violates the Equal Protection Clause, that
            argument is foreclosed by United States v. Frazier, 981 F.2d 92, 95
            (3d Cir. 1992).

                                              4
       The United States Sentencing Commission responded to the FSA by promulgating

emergency amendments to the Sentencing Guidelines, for which the commission

established an effective date of November 1, 2010 – after Williams was sentenced. See

U.S. Sentencing Guidelines Manual (2010 Supp.); cf. U.S. Sentencing Guidelines Manual

§ 1B1.11(a) (2009) (“The court shall use the Guidelines Manual in effect on the date that

the defendant is sentenced.”).

       Despite his contention that we should remand for resentencing and direct the

District Court to take account of the disparity, Williams makes no argument that the

Guidelines promulgated pursuant to the statute should apply any differently than the

statute itself, makes no argument that the District Court abused its discretion in

sentencing him according to the Guidelines in effect at the time, and cites no authority for

his contention that the court should remand “to give [him] credit on the sentencing

disparity issue.” Accordingly, he has waived any such argument. See United States v.

Stadtmauer, 620 F.3d 238, 264 n.31 (3d Cir. 2010) (“‘[A]n issue is waived unless a party

raises it in its opening brief, and for those purposes a passing reference to an issue will

not suffice[.]’”) (quoting Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-03 (3d

Cir. 2004)).

                                             III.

       For the reasons set forth above, we will affirm the judgment of the District Court.




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