USA V. ORLANDO CLEMENT, No. 12-50189 (9th Cir. 2013)

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Court Description: Criminal Law. Summarily affirming a criminal judgment, the panel held that the defendant’s claims are foreclosed by United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013), which held that mandatory minimums in the Fair Sentencing Act of 2010 did not apply in 18 U.S.C. § 3582(c)(2) proceedings to defendants sentenced before the Act was enacted. The panel denied the defendant’s petition for initial hearing en banc without prejudice to renewal as a petition for rehearing en banc. The panel noted that since United States v. Augustine was decided, an inter-circuit spit has emerged.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA , Plaintiff-Appellee, No. 12-50189 v. D.C. No. 2:05-cr-00814GAF-3 ORLANDO CLEMENT , AKA Rab, AKA Seal C, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding Submitted July 8, 2013* Filed July 22, 2013 Before: Alex Kozinski, Chief Judge, William C. Canby, Jr. and Richard C. Tallman, Circuit Judges. Per Curiam Opinion * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V . CLEMENT SUMMARY** Criminal Law Summarily affirming a criminal judgment, the panel held that the defendant s claims are foreclosed by United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013), which held that mandatory minimums in the Fair Sentencing Act of 2010 did not apply in 18 U.S.C. § 3582(c)(2) proceedings to defendants sentenced before the Act was enacted. The panel denied the defendant s petition for initial hearing en banc without prejudice to renewal as a petition for rehearing en banc. The panel noted that since United States v. Augustine was decided, an inter-circuit spit has emerged. COUNSEL Davina T. Chen, Deputy Federal Public Defender, Federal Public Defender s Office, Los Angeles, California, for Defendant-Appellant. Jean-Claude Andre and Curtis A. Kin, Assistant United States Attorneys, Office of the United States Attorney, Los Angeles, California, for Plaintiff-Appellee. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V . CLEMENT 3 OPINION PER CURIAM: A review of the record indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard). Appellant s claims are foreclosed by United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013). Accordingly, appellee s motion for summary affirmance is granted. Appellant s petition for initial hearing en banc is denied without prejudice to renewal as a petition for rehearing en banc. In United States v. Augustine, this court held that mandatory minimums in the Fair Sentencing Act of 2010 ( FSA ), Pub. L. No. 111-220, 124 Stat. 2372, did not apply in 18 U.S.C. § 3582(c)(2) proceedings to defendants sentenced before the FSA was enacted. Id. at 1295. Since United States v. Augustine was decided, an inter-circuit split has emerged. See United States v. Blewett, Nos. 12-5226, 125582, 2013 U.S. App. WL 2121945 (6th Cir. May 17, 2013) (holding defendants sentenced prior to the enactment of the FSA are entitled to reductions). AFFIRMED.