BLD

- 243 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 14

- 2986

___________ UNITED STATES OF AMERICA

v. JOSEPH BAKER, JR., also known as DUKE

Joseph Baker, Jr.,

Appellant

________________________________ ____ On Appeal from the United States District Court for the District of New Jersey (D.N.J. C rim. No. 3

- 09

- cr
- 00088

- 001 ) District Judge: Honorable Mary L. Cooper

____________________________________ Submitted on Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 18, 2015 Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Opinion filed : June 23, 2015 )

_________ OPINION *

_________ PER CURIAM

* This disposition is no t an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Joseph Baker, a federal prison er proceeding pro se , appeals an order of the United
States Distri ct Court for the District of New Jersey denying his motion for a resentencing hearing . For the reasons that follow, we will affirm the judgment of the District Court. On November 4, 2009, Baker pleaded guilty pursuant to a plea agreement to
distributin g and possessing with intent to distribute 5 0 grams or more of a mixture and substance containing a detectable amount of cocaine base (crack cocaine) , in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)( 1)(A). The part i es stipulated that the offense involve d
more than 50 grams but less than 150 grams of crack cocaine. On May 14 , 2010, t he District Court sentenced Baker to the mandatory minimum sentence of 120 months’ imprisonment. Baker did not file a direct appeal. On August 3, 2010, the Fair Sentencin g Act of 2010 (“FSA”) was passed and raised the amount of crack cocaine required to trigger the ten

- year mandatory minimum sentence from 50 grams to 280 grams. United States v. Dixon , 648 F.3d 195, 197 (3d Cir. 2011). More than two years later, in Januar y 2013, Baker filed a motion for a resentencing hearing

. The Government opposed the motion and District Court denied
relief . Baker appealed . T he Government has move d for summary affirmance of the
District Court’s order. We have jurisdiction pursuant to 28 U.S.C. § 1291. Relying on our decision in United States v. Reevey , 631 F.3d 110 (3d Cir. 2010),

t he District Court held that it lacked authority to sentence Baker below the mandatory
minimum in effect when he was sentenced because the FSA does not app ly retroactively3

to defendants sentenced before its enactment. The District Court also not ed that Baker should have brought his claim in a motion under 28 U.S.C. § 2255, but stated it would
have been futile for Baker to re
- file his motion b ecause the one

- year limitations period for filing a § 2255 motion had already expired when Baker brought his motion for a resentencing hearing

. The District Court also explained that, even if it could treat Baker’s motion as one for specific performance of the plea ag reement, the motion lacked merit because , although the agreement gave Baker the right to petition for a resentencing hearing in the event of a change in the applicable mandatory minimum sentence , the G overnment did

not agree that such a change would apply retroactively to Baker. Rather, the G overnment
reserved the right to take “ whatever pos ition it deems appropriate in response to any such petition. ” Dist. Ct. Opin. at 9 (quoting plea agreement). T he District Court found that
these provisions of the agr eement were explained to Baker at length at the plea hearing. The record supports the District Court’s decision. The plea hearing transcript reflects the parties’ understanding that the plea agreement afforded Baker the opportunity to petition for resent encing in the event the law changed favorably to him , but that the
G overnment could argue that he should not get the benefit of any change. See Dist. Ct. Opin. at 19

- 21 (quoting transcript)

. The transcript belies Baker’s contention that he reasonably bel ieved that he was entitled to resentencing in the event of a change in the guideline or mandatory minimum sentencing provisions. A ssuming Baker’s motion was4

procedurally proper, t he District Court did not err in appl ying Reevey and rejecting his
claim. T o the extent Baker argues that he is entitled to resentencing based on changes to
the S entencing G uidelines as a result of the FSA , those changes are not implicated because the statutory mandatory minimum controls his sentence. See Dixon , 648 F.3d at
198 n.1.
Because t his appeal does not present a substantial question , we will summarily affirm the judgment of the District Court. The Government’s motion for summary affirmance and to be excused from filing a brief is granted.