United States v. Maurice Outen , 544 F. App'x 152 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2059
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UNITED STATES OF AMERICA
v.
MAURICE OUTEN,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 1-09-cr-00170-001
District Judge: The Honorable William W. Caldwell
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 21, 2013
Before: AMBRO, SMITH, and CHAGARES, Circuit Judges
(Filed: December 2, 2013)
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OPINION
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SMITH, Circuit Judge.
Maurice Outen (“Outen”), an inmate convicted of possession with intent to
distribute cocaine base (“crack”), appeals from an order of the United States
District Court for the Middle District of Pennsylvania denying Outen’s motion for
a reduction in sentence to 87 months and holding that Outen’s sentence could only
be reduced to 120 months, the mandatory minimum sentence at the time Outen was
convicted. For the reasons set forth below, we will affirm.
On January 7, 2010, a jury found Outen guilty of possession with intent to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Outen was sentenced in May 2010. Under the then-current version of the United
States Sentencing Guidelines Manual (the “Sentencing Guidelines”), the range for
Outen’s sentence was 121 to 151 months. Additionally, because his offense
involved more than 50 grams of a mixture or substance containing a detectable
amount of cocaine base, pursuant to the then-current version of 21 U.S.C. § 841(b),
Outen was subject to a mandatory minimum sentence of 120 months. The United
States District Court for the Middle District of Pennsylvania sentenced Outen to a
term of imprisonment of 136 months.
After Outen was sentenced, Congress passed the Fair Sentencing Act (the
“FSA”) “[t]o restore fairness to Federal cocaine sentencing.” Fair Sentencing Act
of 2010, Pub.L. 111–220, 124 Stat. 2372 (2010). The FSA raised the quantities of
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crack required to trigger the mandatory minimum sentence under 21 U.S.C.
§ 841(b) from 5 grams to 28 grams for a 60-month minimum sentence and from 50
grams to 280 grams for a 120-month minimum sentence. The FSA also directed
the United States Sentencing Commission to amend the Sentencing Guidelines to
reflect the changes in the law resulting from the passage of the FSA. In response
to this directive, the Sentencing Commission amended U.S.S.G. § 2D1.1 to
decrease the offense levels applicable to specific weights of crack. In June 2011,
the Sentencing Commission announced that these amendments to the Sentencing
Guidelines would apply retroactively to offenders serving terms of imprisonment.
This retroactivity became effective on November 1, 2011.
On June 14, 2012, Outen filed a motion pursuant to 18 U.S.C. § 3582(c)(2)
to reduce his sentence to 120 months (the mandatory minimum at the time he was
sentenced) in light of the FSA and amendments to the Sentencing Guidelines. On
July 13, 2012, Outen filed a supplemental motion, in which he argued that he
should not be subject to the 120-month minimum sentence, and instead asserted
that his sentence should be reduced to 87 months based on the revised mandatory
minimum sentences enacted by the FSA. The United States Government agreed
that Outen’s sentence should be reduced under the retroactive Sentencing
Guidelines, but contended that the revised mandatory minimum sentence enacted
by the FSA did not apply to Outen because he was sentenced prior to the
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enactment of the FSA. On April 3, 2013, the District Court denied Outen’s
supplemental motion to reduce his sentence to 87 months, but granted his motion
to reduce his sentence to 120 months. This timely appeal followed.1
Outen concedes that, under this Court’s precedent, the District Court had no
legal authority to reduce his sentence below the 120-month mandatory minimum.
Nevertheless, he brings this appeal to argue, for the purposes of issue preservation
only, that the District Court erred in denying his supplemental motion to reduce his
sentence below the 120-month mandatory minimum that was in effect at the time
he was sentenced, and that the FSA mandatory minimum sentence should
retroactively apply to defendants sentenced before the effective date of the FSA.
Outen’s appeal raises only an issue of law, and thus our review is plenary.
United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009); United States v. Wood,
526 F.3d 82, 85 (3d Cir. 2008). The District Court correctly held that the lower
mandatory minimum sentence enacted by the FSA did not apply to Outen because
he was convicted and sentenced prior to the effective date of the FSA. See United
States v. Reevey, 631 F.3d 110, 114–15 (3d Cir. 2010); United States v. Turlington,
696 F.3d 425, 428 (3d Cir. 2012). It properly held that Dorsey v. United States,
132 S. Ct. 2321 (2012), does not apply to Outen because Dorsey addresses the
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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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applicability of the FSA to defendants who were convicted of crack cocaine
offenses prior to the FSA’s effective date of August 3, 2010, but were sentenced
after that date, whereas Outen was convicted and sentenced prior to the enactment
of the FSA. See Turlington, 696 F.3d at 428 (“[Dorsey] does not address, or
disturb, the basic principle that the FSA does not apply to those defendants who
were both convicted and sentenced prior to the effective date of the FSA.”).
After reviewing the record before us, we conclude that the District Court did
not err in denying Outen’s supplemental motion to reduce his sentence below 120
months. Accordingly, we will affirm.
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