United States of America v. Diaz, No. 10-317 (2d Cir. 2010)
Annotate this Case
Download PDF
10-317 USA v. Diaz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ August Term, 2010 (Submitted: December 10, 2010 Decided: December 15, 2010) Docket No. 10-317-cr ____________________ UNITED STATES OF AMERICA, Appellee, -v- 10-317-cr STEVEN A. DIAZ, a/k/a Peto, Appellant. ____________________ Before: CABRANES, POOLER, and WESLEY, Circuit Judges. 1 Counsel for Appellant moves for permission to withdraw pursuant to Anders v. California, 2 386 U.S. 738 (1967), and the Government moves for summary affirmance of an order of the district 3 court (Buchwald, J.) denying Appellant s motion for a reduction to his sentence. We grant counsel s 4 Anders motion and the Government s motion for summary affirmance, inter alia, on the ground that 5 Appellant is not entitled to the benefit of the recently enacted Fair Sentencing Act of 2010. 6 7 8 9 10 Appellant was sentenced before the effective date of the Act, and the Act is not retroactive. The Anders motion is GRANTED and the judgment is AFFIRMED. ____________________ 1 2 3 4 5 6 7 8 9 10 11 12 YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, NY, for Appellant. ALVIN BRAGG, Assistant United States Attorney, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. PER CURIAM: Yuanchung Lee, counsel for Appellant, moves for permission to withdraw as counsel 13 pursuant to Anders v. California, 386 U.S. 738 (1967), and the Government moves for summary 14 affirmance of an order of the district court (Buchwald, J.) denying Appellant s motion for a 15 reduction to his sentence. The Government argues, inter alia, that the district court s denial of 16 Appellant s motion for a reduction to his sentence should be affirmed because the Fair 17 Sentencing Act of 2010 ( FSA ), which reduces the disparity between crack and powder cocaine, 18 is not retroactive, and therefore, could not operate to reduce Appellant s sentence, since he was 19 convicted and sentenced before the FSA was signed into law. 20 Pursuant to the general savings statute, 1 U.S.C. § 109, [t]he repeal of any statute shall 21 not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the 22 repealing Act shall so expressly provide, and such statute shall be treated as still remaining in 23 force for the purpose of sustaining any proper action or prosecution for the enforcement of such 24 penalty[.] In this case, the FSA contains no express statement that it is intended to have 25 retroactive effect nor can we infer such intent from its language. As a result, the FSA cannot be 26 applied to reduce Appellant s sentence because, inter alia, he was convicted and sentenced before 27 the FSA was enacted. See United States v. Carradine, 621 F.3d 575 (6th Cir. 2010); United 2 1 States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) ( [B]ecause the FSA took effect . . . after 2 appellant committed his crimes 1 U.S.C. § 109 bars the Act from affecting his punishment. ). 3 We have considered the remaining arguments and conclude that there is no non-frivolous 4 basis on which Appellant could appeal the district court s order denying his motion for a 5 reduction of sentence. Accordingly, upon due consideration, it is hereby ORDERED that the 6 Anders motion and the motion for summary affirmance are GRANTED, and the judgment of the 7 district court declining to reduce Appellant s sentence is AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
