12-3975 United States v. Rowley 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 26 th** **day of November, two thousand thirteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **BARRINGTON D. PARKER,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 12-3975** 15 16 **RICARDO ROWLEY, aka Braisy,** 17 **Defendant-Appellant ,**  18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** D EVIN M C L AUGHLIN , Langrock Sperry 21 & Wool, LLP, Middlebury, 22 Vermont. 23 24 **FOR APPELLEE:** RAJIT S. D OSANJH , forRichard S. 25 Hartunian, United States 26 Attorney for the Northern 27 District of New York, Syracuse, 28 New York. 29
1Appeal from orders of the United States District Court 1 for the Northern District of New York (Scullin, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the orders of the district court be 5 **AFFIRMED**
. 6 7 Ricardo Rowley appeals from orders dated September 13 8 and 20, 2013, of the United States District Court for the 9 Northern District of New York (Scullin, J. ), denying a 10 reduction in his sentence pursuant to 18 U.S.C. § 11 3582(c)(2)

. Rowley seeks resentencing under the Fair 12 Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 13 (2010) (“FSA”). The district court found him ineligible for 14 resentencing. We assume the parties’ familiarity with the 15 underlying facts, the procedural history, and the issues 16 presented for review. 17 The FSA does not apply retroactively to defendants, 18 such as Rowley, who were convicted and sentenced prior to 19 August 3, 2010. United States v. Diaz , 627 F.3d 930, 931 20 (2d Cir. 2010). The Supreme Court’s decision in Dorsey v. 21 United States , holding that the reduced penalties of the FSA 22 apply to defendants who were convicted before the Act’s 23 enactment, but sentenced afterward , does not compel a 24 different result. –- U.S. -- , 132 S.Ct. 2321, 183 L.Ed.2d 25 250 (2012). See also United States v. Johnson , 732 F.3d 26

2109, 116 (2d Cir. 2013). Our sister Circuits overwhelmingly 1 support this conclusion. See United States v. Reeves , 717 2 F.3d 647, 650-51 (8th Cir. 2013) (listing other Circuits 3 addressing this issue). 4 Rowley’s reliance on United States v. Blewett , 719 F.3d 5 482 (6th Cir. 2013), is misplaced. That decision arguably 6 contradicted binding circuit precedent in United States v. 7 Hammond , 712 F.3d 333 (6th Cir. 2013), and has since been 8 vacated by the Sixth Circuit for a rehearing en banc . Dicta 9 in Dorseyalso support the conclusion that Blewett was 10 wrongly decided. See Dorsey , 132 S.Ct. at 2335 (“We have 11 explained how in federal sentencing the ordinary practice is 12 to apply new penalties to defendants not yet sentenced, 13 while withholding that change from defendants already 14 sentenced.”). Since Blewett , every Circuit that has 15 considered this issue has declined to follow its lead. See, 16
e.g. , Reeves , 717 F.3d at 651; United States v. Clement , 723 17 F.3d 1028 (9th Cir. 2013); United States v. Harris , No. 13- 18 2711, 2013 WL 4083300 (3d Cir. Aug. 14, 2013). 19 20

3For the foregoing reasons, and finding no merit in 1 Rowley’s other arguments, we hereby **AFFIRM** the orders of the 2 district court. 3
4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7

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