         10-2017-cr
         United States v. Merisier

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of March, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROSEMARY S. POOLER,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-2017-cr
17
18       ROSHAWN MERISIER, AKA ROCKY, AKA ROCK,
19       AKA ROSCO,
20                Defendant-Apellant,
21
22       and,
23
24       DAMIAN GREEN, EDDIE IGLESIAS, HECTOR
25       MORALES,
26                Defendants.
27       - - - - - - - - - - - - - - - - - - - -X
28

                                                  1
 1   FOR APPELLANT:             Steven Yurowitz, Newman &
 2                              Greenberg, New York, NY.
 3
 4   FOR APPELLEES:             Amy Busa & Matthew S. Amatruda,
 5                              for Loretta E. Lynch, United
 6                              States Attorney for the Eastern
 7                              District of New York, Brooklyn,
 8                              NY.
 9
10        Appeal from a judgment of the United States District
11   Court for the Eastern District of New York (Garaufis, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Defendant Roshawn Merisier appeals from a judgment of
18   conviction entered by the United States District Court for
19   the Eastern District of New York (Garaufis, J.) for
20   conspiracy to distribute and possess with intent to
21   distribute cocaine base, in violation of 21 U.S.C. §§ 846
22   and 841(b)(1)(A)(iii), and illegally dealing firearms, in
23   violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). We
24   assume the parties’ familiarity with the facts, procedural
25   history, and issues presented on appeal.
26
27        Merisier argues that he should be resentenced with the
28   benefit of the Fair Sentencing Act of 2010, Pub. L. No.
29   111-220, 124 Stat. 2372 (2010) (“FSA”), which reduced the
30   mandatory minimum he faced for one of the crimes to which he
31   pled guilty. At least one panel of this Court has already
32   held that the FSA does not apply retroactively to a
33   defendant in Merisier’s position--one sentenced before the
34   FSA was enacted. See United States v. Acoff, 634 F.3d 200,
35   202-03 (2d Cir. 2011) (per curiam). That opinion accords
36   with every circuit’s decision on the issue. See United
37   States v. Goncalves, 642 F.3d 245, 253-54 (1st Cir. 2011);
38   United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.
39   2010); United States v. Bullard, 645 F.3d 237, 248–49 (4th
40   Cir. 2011), United States v. Doggins, 633 F.3d 379, 384 (5th
41   Cir. 2011); United States v. Carradine, 621 F.3d 575, 580
42   (6th Cir. 2010); United States v. Bell, 624 F.3d 803, 814-15
43   (7th Cir. 2010); United States v. Brewer, 624 F.3d 900, 909
44   n.7 (8th Cir. 2010); United States v. Baptist, 646 F.3d
45   1225, 1229 (9th Cir. 2011) (per curiam); United States v.
46   Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States
47   v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam).

                                  2
 1        While mandated by our precedents, nothing inhibits the
 2   executive from extending clemency that would bring this
 3   sentence in line with the FSA, and on the whole, the panel
 4   is of the view that clemency would serve the interests of
 5   justice in this case because even though Merisier was
 6   sentenced prior to the enactment of the FSA, his appeal was
 7   still pending--and thus his conviction was not yet final--at
 8   the time the FSA became effective.
 9
10
11        Finding no merit in defendant’s remaining arguments, we
12   hereby AFFIRM the judgment of the district court.
13
14
15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18




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