     10-1889
     United States v. Gadsden


                           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 29th day of September, two thousand eleven.
 5
 6        PRESENT: DENNIS JACOBS,
 7                               Chief Judge,
 8                 ROBERT A. KATZMANN,
 9                 SUSAN L. CARNEY,
10                               Circuit Judges.
11
12        - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                              10-1889
18
19       DAMONE GADSDEN,
20
21                    Defendant-Appellant.
22
23
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR APPELLANT:           Theodore S. Green,
27                                Green & Willstatter
28                                White Plains, NY

                                                 1
 1
 2
 3
 4   FOR APPELLEE:     Andrew Bauer, Katherine Polk Failla
 5                     Assistant United States Attorneys, for
 6                     Preet Bharara, United States Attorney,
 7                     Southern District of New York,
 8                     New York, NY
 9
10
11        Appeal from an amended judgment of the United States
12   District Court for the Southern District of New York
13   (Robinson, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the district court’s judgment is AFFIRMED.
17
18        Damone Gadsden appeals the district court’s amended
19   judgment, resentencing him to concurrent terms of 262
20   months’ imprisonment, arguing that the district court erred
21   by failing to order an updated presentencing report (“PSR”)
22   in advance of resentencing, and that the Fair Sentencing Act
23   of 2010 (“FSA”) should be applied retroactively to Gadsden’s
24   case. We assume the parties’ familiarity with the underlying
25   facts, the procedural history, and the issues presented for
26   review.
27
28   [1] Gadsden argues that the district court was required to
29   order an updated PSR from the United States Probation Office
30   prior to his resentencing. Because Gadsden did not raise
31   this objection below, we review for plain error. See United
32   States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir. 2002). We
33   find none. Under Federal Rule of Criminal Procedure 32(c),
34   a probation officer need not “conduct a presentence
35   investigation and submit a report to the court before it
36   imposes sentence” if the court finds that it can
37   meaningfully exercise its sentencing authority based on
38   information already in the record, and if “the court
39   explains its finding on the record.” Although Rule 32(c)
40   generally requires a PSR prior to an initial sentencing,
41   “this rule does ‘not [similarly] mandate that the district
42   court in all circumstances require an updated PSR in the
43   event of resentencing.’” United States v. Triestman, 178
44   F.3d 624, 633 (2d Cir. 1999) (alteration in original)

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 1   (quoting United States v. Conhaim, 160 F.3d 893, 896 (2d
 2   Cir. 1998)). In particular, no updated report is required
 3   when “the parties are given a full opportunity to be heard
 4   and to supplement the PSR as needed.” Id.; see also
 5   Quintieri, 306 F.3d at 1234. Gadsden was afforded the
 6   opportunity to supplement the original PSR with information
 7   pertaining to his behavior in prison since his initial
 8   sentencing. Gadsden’s counsel spoke at the resentencing
 9   hearing regarding Gadsden’s vocational and educational
10   training while in prison, and also submitted a presentencing
11   memorandum citing various certificates of achievement that
12   he had been awarded. We find that the district court did
13   not commit plain error in declining to order an updated PSR.
14
15   [2] Gadsden also urges this Court to apply the provisions
16   of the FSA retroactively to his case and remand to the
17   district court in light of the Act’s revisions of the drug
18   weight thresholds necessary to trigger mandatory minimum
19   sentences for certain narcotics offenses. But we have
20   expressly held that the FSA does not apply retroactively to
21   crimes committed prior to its enactment. See United States
22   v. Acoff, 634 F.3d 200, 201-02 (2d Cir. 2011) (per curiam);
23   United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010) (per
24   curiam).
25
26        For the foregoing reasons, the amended judgment of the
27   district court is hereby AFFIRMED.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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