BLD-243 NOT PRECEDENTIAL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. Crim. 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 not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Joseph Baker, a federal prisoner proceeding pro se, appeals an order of the United 

States District 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 

distributing and possessing with intent to distribute 50 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 parties stipulated that the offense involved 

more than 50 grams but less than 150 grams of crack cocaine. On May 14, 2010, the 

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 Sentencing 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 January 2013, Baker filed a motion for a 

resentencing hearing. The Government opposed the motion and District Court denied 

relief. Baker appealed. The Government has moved 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),

the 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 apply retroactively 
3

to defendants sentenced before its enactment. The District Court also noted 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 because 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 agreement, 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 Government did 

not agree that such a change would apply retroactively to Baker. Rather, the Government 

reserved the right to take “whatever position it deems appropriate in response to any such 

petition.” Dist. Ct. Opin. at 9 (quoting plea agreement). The District Court found that 

these provisions of the agreement 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 resentencing in the event the law changed favorably to him, but that the 

Government 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 believed that he was entitled to resentencing in the event of a change in the 

guideline or mandatory minimum sentencing provisions. Assuming Baker’s motion was 
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procedurally proper, the District Court did not err in applying Reevey and rejecting his

claim. To the extent Baker argues that he is entitled to resentencing based on changes to 

the Sentencing Guidelines 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 this 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.