United States v. Orlando Clement

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-50189
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-00814-
GAF-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, 12-
5582, 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.