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Young v. United States

United States Court of Appeals, District of Columbia Circuit

November 22, 2019

Keith Young, Appellant
United States of America, Appellee

          Argued October 15, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cr-00083-1)

          Stephen C. Leckar, appointed by the court, argued the cause and filed the briefs for appellant.

          Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jesse K. Liu, U.S. Attorney, and Elizabeth Trosman, Christopher Macchiaroli, and David B. Misler, Assistant U.S. Attorneys.

          Before: Henderson and Rogers, Circuit Judges, and Edwards, Senior Circuit Judge.


          Karen LeCraft Henderson, Circuit Judge

         The appellant, Keith Young, was sentenced to 240 months in prison for possessing a heroin mixture exceeding two kilograms based on the then-applicable statutory minimum contained in 21 U.S.C. § 841(b)(1)(A). After the district court pronounced sentence, the Congress enacted the First Step Act (Act), narrowing the range of past offenses that trigger section 841(b)(1)(A)'s mandatory minimum. It is undisputed that, if this change applies to Young, he is subject to a ten-year, not twenty-year, mandatory minimum sentence. On appeal, Young argues that, because his case was still pending on direct review when the Act was enacted, he should receive the benefit of the decreased term of imprisonment. We conclude, however, that a reduced prison term applies only to a defendant whose sentence had not been "imposed" as of the Act's enactment date; accordingly, we reject Young's argument and affirm his sentence.

         I. Background

         Young was convicted of possessing a heroin mixture exceeding two kilograms (count one) and possessing a firearm as a felon (count two). During the proceedings, the government filed an information pursuant to 21 U.S.C. § 851(a)(1), indicating that in 1994 Young had pleaded guilty to a state charge of possession of cocaine with intent to distribute. The filing triggered the twenty-year statutory minimum then in effect for the heroin conviction. See 21 U.S.C. § 841(b)(1)(A) (2012), amended by Pub. L. No. 115-391, § 401, 132 Stat. 5193, 5220-22 (2018). On July 19, 2018 the district court sentenced Young to the 240-month statutory minimum on count one and to 36 months in prison on count two, the two sentences to run concurrently.

         The Act was signed into law on December 21, 2018. It narrowed the range of past drug convictions that can trigger the mandatory minimum contained in section 841(b)(1)(A). The Act replaces "felony drug offense" with "serious drug felony," see Pub. L. No. 115-391, § 401, 132 Stat. at 5220-22 (2018), which is defined as requiring both "a term of imprisonment of more than 12 months" and that "the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense," 21 U.S.C. § 802(57)(A)-(B). The parties agree that Young's 1994 conviction would not qualify as a "serious drug felony" under the Act because he was released more than 15 years before he committed "the instant offense." Section 401 of the Act, however, includes a retroactivity provision stating that: "This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." Pub. L. No. 115-391, § 401(c), 132 Stat. at 5221.

         Young timely appealed his sentence pursuant to 28 U.S.C. § 1291.

         II. Analysis

         On direct appeal, Young argues that his sentence should be vacated and his case remanded for resentencing in light of the statutory minimum applicable after the enactment of the First Step Act. The general federal "savings clause" provides that "[t]he repeal of any statute shall not . . . extinguish any penalty . . . incurred under such statute, unless the repealing Act shall so expressly provide . . . ." 1 U.S.C. § 109.[1] Although section 109 uses the term "expressly provide," the United States Supreme Court has held that the Congress need not use "magical passwords" and that the savings clause is satisfied so long as the "courts . . . assure themselves that ordinary interpretative considerations point clearly in that direction." Dorsey v. United States, 567 U.S. 260, 274-75 (2012). Young asks us to apply the common-law principle that the elimination or reduction of a criminal penalty must be given effect to all cases on direct review. See Bradley v. United States, 410 U.S. 605, 607-08 (1973) (describing the common-law rule). But the Supreme Court has recognized that 1 U.S.C. § 109, if applicable, abrogates the common-law rule. See Warden v. Marrero, 417 U.S. 653, 660 (1974) ("Congress enacted its first general saving provision, [section 109], to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of 'all prosecutions which had not reached final disposition in the highest court authorized to review them.'" (quoting Bradley, 410 U.S. at 607)). The viability of Young's claim thus turns on whether "ordinary interpretative considerations" indicate that the Congress intended that section 401 apply to any sentence on direct appeal if the sentencing occurred before December 21, 2018.

         We review questions of statutory construction de novo. See United States v. Mosquera-Murillo, 902 F.3d 285, 292 (D.C. Cir. 2018). Section 401 of the Act applies to any sentence for an offense committed before its enactment "if a sentence for the offense has not been imposed as of such date of enactment." 132 Stat. at 5221 (emphasis added). If Young's sentence had not yet been "imposed" on December 21, 2018, he would have received the benefit of section 401. Because his sentence was "imposed" before December 21, 2018, however, section 401 does not apply. Three sister circuits have already considered this issue and all three have held that section 401 does not apply to a sentence that was pending on direct appeal after December 21, 2018. See United States v. Aviles, 938 F.3d 503, 510 (3d Cir. 2019); United States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019); United States v. Pierson, 925 F.3d 913, 927-28 (7th Cir. 2019); cf. United States v. Means, No. 19-10333, 2019 U.S. App. LEXIS 27392, at *4 (11th Cir. Sept. 11, 2019) (noting, in the context of a motion to modify a term of imprisonment, that section 401 does "not apply retroactively to defendants sentenced prior to December 21, 2018"). As the Seventh Circuit explained, "[i]n common usage in federal sentencing law, a sentence is 'imposed' in the district court, regardless of later appeals." Pierson, 925 F.3d at 927 (citing 18 U.S.C. § 3553(a) ("The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." (emphasis added)); Fed. R. Crim. P. 32(b) ("The court must impose sentence without unnecessary delay." (emphasis added)); Fed R. Crim. P. 32(a)(2) (1986) ...

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