USA v. Samas, No. 05-5213 (2d Cir. 2009)

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05-5213-cr USA v. Samas 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Submitted: August 11, 2008 Decided: March 24, 2009) Docket No. 05-5213-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.- 05-5213-cr ROCKY SAMAS, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Present: JACOBS, Chief Judge, WESLEY and HALL, Circuit Judges. Defendant-Appellant Rocky Samas appeals from a judgment 29 of conviction entered by the United States District Court 30 for the District of Connecticut (Hall, J.) on September 29, 31 2005 . 32 scheme in 21 U.S.C. § 841(b) violates the Equal Protection 33 Clause of the Fourteenth Amendment because there is no 34 rational basis for the disparity between sentences for 35 powder and crack cocaine, and that the introductory language He argues principally that the mandatory sentencing 1 in 18 U.S.C. § 3553(a) conflicts with the mandatory 2 sentencing provisions set forth in § 841(b) . 3 following reasons, we affirm. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 For the Charles F. Willson, Nevins & Nevins LLP, East Hartford, CT, for Defendant-Appellant. William J. Nardini, Assistant United States Attorney, and Sandra S. Glover, Assistant United States Attorney (of counsel), for Nora R. Dannehy, Acting United States Attorney for the District of Connecticut, for Appellee. PER CURIAM1 : Rocky Samas appeals from a judgment of conviction 20 entered by the United States District Court for the District 21 of Connecticut (Hall, J.) on September 29, 2005. 22 principally that (1) the mandatory sentencing scheme in 21 23 U.S.C. § 841(b) violates the Equal Protection Clause of the 24 Fourteenth Amendment because there is no rational basis for 25 the disparity between sentences for powder and crack cocaine 26 and (2) that the introductory language in 18 U.S.C. 27 § 3553(a) conflicts with the mandatory sentencing provisions 1 He argues We originally affirmed by summary order issued December 9, 2008. Upon motion of the government, we now withdraw that order and publish this decision in its place. 2 1 set forth in § 841(b). 2 affirm. For the following reasons, we 3 4 5 I In January 2004, members of the Norwalk Police 6 Department learned from a confidential informant that a man 7 named Rocky Samas was selling large quantities of crack 8 cocaine in the greater Norwalk area. 9 informant arranged to purchase crack cocaine from Samas at The confidential 10 Samas residence on January 6, 7, and 8, 2004. 11 transaction involved 13.5 grams of crack cocaine; the second 12 27.3 grams; and the third 54.6 grams. 13 agents and police officers searched the homes of Samas and 14 an associate and discovered drugs, cash, and guns connected 15 with Samas narcotics business. 16 The first Thereafter, FBI In November 2004, Samas pleaded guilty to two counts of 17 possession with intent to distribute and distribution of 18 five grams or more of cocaine base in violation of 21 U.S.C. 19 §§ 841(a)(1) and (b)(1)(B) (Counts Two and Three); one count 20 of possession with intent to distribute and distribution of 21 fifty grams or more of cocaine base in violation of 21 22 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Four); and one 3 1 count of possession with intent to distribute and 2 distribution of 500 grams or more of cocaine and five grams 3 or more of cocaine base in violation of 21 U.S.C. 4 §§ 841(a)(1) and (b)(1)(B) (Count Five). 5 Samas was sentenced principally to the mandatory 6 minimum term of 240 months imprisonment on Count Four, and 7 to concurrent sentences of 151 months on Counts Two, Three, 8 and Five. 9 Samas raised no objections at his sentencing. 10 Accordingly, we review his claims for plain error. 11 12 13 II Samas argues that the mandatory sentencing scheme in 21 14 U.S.C. § 841(b) violates the Equal Protection Clause of the 15 Fourteenth Amendment because there is no rational basis for 16 the disparity between sentences for powder and crack 17 cocaine. 18 United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 19 2008) (per curiam); United States v. Moore, 54 F.3d 92, 97- 20 99 (2d Cir. 1995); United States v. Then, 56 F.3d 464, 466 21 (2d Cir. 1995); United States v. Stevens, 19 F.3d 93, 96-97 22 (2d Cir. 1994). We have repeatedly rejected this argument. 4 See 1 Samas contends that the Supreme Court s recent decision 2 in Kimbrough v. United States, 128 S. Ct. 558 (2007), casts 3 doubt on the continued validity of the 100-to-1 powder to 4 crack cocaine ratio. 5 suggests that the powder to crack cocaine disparity in 6 § 841(b)is unconstitutional. 7 F.3d 104, 106 (2d Cir. 2008) (stating in dicta that [i]t is 8 not apparent to us that the principles set forth in 9 Kimbrough have any application to mandatory minimum 10 11 We disagree. Nothing in Kimbrough See United States v. Lee, 523 sentences imposed by statute ). The Kimbrough Court explained that the federal 12 narcotics statute, by its terms, mandates only maximum and 13 minimum sentences . . . . 14 the appropriate sentences within these brackets . . . . 15 128 S. Ct. at 571. 16 of district judges to sentence within the maximum and 17 minimum sentence brackets. 18 precedents rejecting challenges to the constitutionality of 19 the mandatory sentencing scheme in § 841(b). The statute says nothing about Thus Kimbrough bears upon the discretion Kimbrough does not disturb our 20 21 22 5 1 2 III Samas contends that the parsimony clause in 18 U.S.C. 3 § 3553(a) conflicts with the mandatory sentencing provisions 4 in § 841(b). 5 courts to impose a sentence sufficient, but not greater 6 than necessary, to comply with the purposes set forth in 7 paragraph (2) of this subsection. 8 under this provision, Samas contends, is incompatible with a 9 mandatory sentencing scheme. In relevant part, § 3553(a) directs district The balancing required 10 We recently rejected the argument that § 3553(a) 11 conflicts with statutory minimum sentences in reviewing a 12 sentence applying the firearms enhancement in 18 U.S.C. 13 § 924(c). 14 court must impose a statutorily mandated sentence even if 15 the court would reach a different determination if it 16 considered only § 3553(a). 17 2008). 18 tension with section 3553(a), but that very general 19 statute cannot be understood to authorize courts to sentence 20 below minimums specifically prescribed by Congress . . . . 21 Id. (quoting United States v. Roberson, 474 F.3d 432, 436 22 (7th Cir. 2007)); see also United States v. Franklin, 499 As we held in United States v. Chavez, a district 549 F.3d 119, 135 (2d Cir. We explained that statutory minimum sentences are in 6 1 F.3d 578, 585 (6th Cir. 2007) (rejecting argument that 2 mandatory sentences conflict with parsimony clause, because 3 § 3553(a) factors do not apply to congressionally mandated 4 sentences ). 5 mandatory sentences imposed under § 841(b). 6 We reach the same conclusion with respect to The wording of § 3553(a) is not inconsistent with a 7 sentencing floor. 8 sentencing scheme is qualified: [e]xcept as otherwise 9 specifically provided, a defendant who has been found guilty The introductory language of the federal 10 of an offense described in any Federal statute . . . shall 11 be sentenced in accordance with the provisions of this 12 chapter so as to achieve the purposes set forth in 13 subparagraphs (A) through (D) of section 3553(a)(2) . . . . 14 18 U.S.C. § 3551(a) (emphasis added). 15 § 841(b)(1)(A) specifically provides for a mandatory minimum 16 sentence of twenty years. 17 F.3d 285, 289 (3d Cir. 2004) ( [T]he mandatory minimum 18 sentence[] Kellum was exposed to pursuant to . . . 21 U.S.C. 19 § 841(b)(1)(A) clearly fit within the except as otherwise 20 specifically provided exclusion of § 3551(a). (footnotes 21 omitted)). In this case, See United States v. Kellum, 356 22 7 1 Further, § 3553(e) and § 3553(f) enumerate limited 2 circumstances in which a district court may depart from a 3 statutory minimum sentence. 4 (holding that § 3553(e) and § 3553(f) are sole provisions 5 permitting departure from a mandatory minimum sentence); 6 Kellum, 356 F.3d at 289 (same). 7 surplusage if we adopted Samas interpretation of § 3553(a). 8 9 See Franklin, 499 F.3d at 585 These provisions would be Accordingly, we reject Samas effort to avoid the mandatory minimum sentence in § 841(b)(1)(A). 10 11 12 IV Samas final argument is that we should remand to the 13 district court for resentencing on Counts Two, Three, and 14 Five pursuant to Regalado, 518 F.3d at 149. 15 concerned that the district court might not have appreciated 16 its discretion to depart from the sentencing guidelines 17 based on the powder to crack cocaine disparity. 18 district court erroneously imposed sentences of 151 months 19 on Counts Two, Three, and Five, Samas cannot show (as he 20 must for plain error review) that the error affected his 21 substantial rights, because those sentences are to run 22 concurrently with the mandatory minimum sentence of 240 8 Samas is Even if the 1 months on Count Four. 2 622, 640 (2d Cir. 2002) ( [A]n erroneous sentence on one 3 count of a multiple-count conviction does not affect 4 substantial rights where the total term of imprisonment 5 remains unaffected . . . . ); see also United States v. 6 Ogman, 535 F.3d 108, 111 (2d Cir. 2008) (denying Regalado 7 remand because sentence was driven by guideline provision 8 unrelated to powder to crack cocaine ratio in guidelines). See United States v. Outen, 286 F.3d 9 10 11 12 CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. 9

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