2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-29-2011

USA v. Roman Surratt

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2303

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Recommended Citation

"USA v. Roman Surratt" (2011). 2011 Decisions. Paper 153.

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NOT PRECEDENTIAL 

UNITED STATE COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2303

_____________

UNITED STATES OF AMERICA

v.

ROMAN SURRATT,

 Appellant

__________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2:08-cr-00376-026)

District Judge: Honorable Donetta W. Ambrose

__________________________

Submitted Under Third Circuit LAR 34.1(a)

October 28, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges

(Filed: November 29, 2011)

_____________

OPINION

_____________

VANASKIE, Circuit Judge. 

On October 28, 2008, a grand jury in the Western District of Pennsylvania 

indicted Roman Surratt for violating 21 U.S.C. § 846 for conspiring and possessing with 

intent to distribute five kilograms or more of a mixture containing a detectable amount of 

cocaine and fifty or more grams of a mixture and substance containing a detectable 
2

amount of cocaine base, also known as crack cocaine or crack. The grand jury also 

indicted Surratt for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) for possessing with 

intent to distribute a mixture and substance containing a detectable amount of heroin.

On June 18, 2009, Surratt pleaded guilty to the cocaine base and heroin offenses, 

accepting responsibility for possessing 149 grams of crack and 22.9 grams of heroin. 

During his plea hearing, the District Court advised Surratt that his crack cocaine offense 

was subject to a 120-month mandatory minimum sentence. The District Court then 

ordered a Presentence Investigative Report (PSR). The PSR used the 2008 edition of the 

United States Sentencing Guidelines Manual, effective November 1, 2008. Surratt’s 

initial advisory guideline calculation was 108 to 135 months based upon a total offense 

level of 31 and a criminal history category of I. Surratt did not object to this calculation. 

Because the applicable statute of conviction, 21 U.S.C. §841(b)(1)(A)(iii), required a tenyear (120-month) mandatory minimum sentence, the advisory guideline range became

120 to 135 months pursuant to U.S.S.G. § 5G1.1(c)(2). On September 11, 2009, the 

District Court sentenced Surratt to 120 months’ imprisonment, the statutory mandatory 

minimum and bottom of the guideline range.

On April 2, 2010, Surratt filed a pro se motion to reduce his sentence under 18 

U.S.C. § 3582(c), arguing that the District Court incorrectly calculated his guideline 

range by using an 80-to-1 crack-to-powder cocaine quantity ratio to determine his base 

offense level. The District Court denied Surratt’s motion, holding that his sentence was 

correctly imposed pursuant to the statutory minimum term of imprisonment required by

21 U.S.C. § 841. Surratt then filed this appeal pro se, arguing that the District Court
3

should have exercised its discretion and used a reduced drug quantity ratio to impose a 

lighter sentence.

I. 

We have jurisdiction to decide this appeal pursuant to 18 U.S.C. § 3742 and 28 

U.S.C. § 1291. We reject Surratt’s sentencing challenge and will affirm the judgment of 

the District Court.

The District Court was obligated to impose a sentence of at least 120 months 

based on Surratt’s offense, which was subject to a 120-month mandatory minimum under 

21 U.S.C. § 841(b)(1)(A)(iii). A district court may grant a motion to reduce a 

defendant’s sentence under 18 U.S.C. § 3582(c) only when “a defendant . . . has been 

sentenced to a term of imprisonment based on a sentencing range that has subsequently 

been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A defendant is 

not eligible for a reduction under § 3582(c)(2) if another statute or provision, such as a 

statutory mandatory minimum, controls the defendant’s sentence. See United States v. 

Doe, 564 F.3d 305, 312 (3d Cir. 2009). 

The District Court did not have discretion to impose a lower sentence because,

“unlike the advisory sentencing guidelines range, ‘the statutory minimum drug trafficking 

penalty in 21 U.S.C. § 841(b) . . . is mandatory.’” United States v. Reevey, 631 F.3d 110, 

113 (3d Cir. 2010) (quoting United States v. Gunter, 462 F.3d 237, 248 (3d Cir. 2006)). 

Moreover, any potential change to Surratt’s advisory guideline range resulting from the 

Fair Sentencing Act of 2010 (“FSA”) does not alter our decision because the Act’s 
4

changes to mandatory minimum crack penalties do not apply retroactively.1

II.

See Reevey, 

631 F.3d at 114-15. Therefore, the statutorily required minimum term of imprisonment 

remains 120 months. Because the offense carried a 120-month mandatory minimum 

sentence and his guideline range did not change, Surratt is not entitled to a sentencing 

reduction under § 3582(c).

For the foregoing reasons, we will affirm the judgment of the District Court.

 1 On June 30, 2011, the Sentencing Commission unanimously voted to apply the 

new Guidelines retroactively to defendants sentenced before the FSA’s passage. That 

decision, however, does not affect the statutory mandatory minimums and has no bearing 

on the resolution of the issue before us. See United States v. Dixon, 648 F.3d 195, 198 

n.1 (3d Cir. 2011). In United States v. Reevey, we held that the Savings Statute found at 

1 U.S.C. § 109 precluded a defendant from receiving the benefit of the FSA’s statutory 

changes if both the offense and initial sentencing occurred before the FSA’s enactment. 

Reevey, 631 F.3d at 114-15. Surratt is precluded from the benefit of the FSA’s statutory 

changes for precisely the same reason. Surratt’s appeal is not governed by Dixon, where

we applied the FSA’s statutory changes to the defendant who committed the offense 

before the enactment of the FSA, but was sentenced after the FSA’s enactment. Dixon, 

648 F.3d at 203.