RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0005p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

EUGENE DOWNS, 

Petitioner-Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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No. 16-5368 

Appeal from the United States District Court 

for the Eastern District of Tennessee at Greeneville. 

Nos. 2:09-cr-00117-2; 2:13-cv-00007—J. Ronnie Greer, District Judge. 

Argued: October 12, 2017 

Decided and Filed: January 8, 2018 

 Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, 

INC., Chattanooga, Tennessee, for Appellant. William A. Roach, Jr., UNITED STATES 

ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust, 

FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, 

Tennessee, Nikki C. Pierce, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, 

INC., Greeneville, Tennessee, for Appellant. William A. Roach, Jr., UNITED STATES 

ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. 

_________________ 

OPINION 

_________________ 

 KETHLEDGE, Circuit Judge. Eugene Downs argues that the date on which he was 

“sentenced” for his drug crime was not the date of his sentencing hearing—at which the court 

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No. 16-5368 Downs v. United States Page 2

orally pronounced his sentence—but the date on which the court entered the criminal judgment 

that reflected his sentence. We reject that argument and affirm. 

 In 2010 Downs pled guilty to conspiring to distribute 50 grams or more of crack cocaine, 

in violation of 21 U.S.C. §§ 841(a)(1) and 846. On August 2, 2010, the district court held a 

sentencing hearing and orally pronounced a sentence of ten years’ imprisonment, which was then 

the mandatory-minimum sentence for Downs’s crime. The very next day, however, the 

President signed the Fair Sentencing Act, which reduced from ten years to five the mandatoryminimum sentence for distribution of 50 grams of crack. That reduction presumptively did not 

apply to crimes (like Downs’s) committed before the Act’s effective date. See 1 U.S.C. § 109. 

Another thirteen days later—on August 16, 2010—the district court entered its judgment in 

Downs’s case. 

 Almost two years later, the Supreme Court found the § 109 presumption rebutted as to 

pre-Act offenders who were first sentenced after August 3, 2010 (i.e., the Act’s effective date). 

See Dorsey v. United States, 567 U.S. 260, 281 (2012). Hence the Supreme Court held that the 

Act did apply to defendants sentenced after August 3, 2010. 

 Downs thereafter moved to vacate his sentence under 28 U.S.C. § 2255. Although 

Downs’s sentencing hearing took place on August 2, 2010—before the Act’s effective date—

Downs argued that he was not “sentenced” until the district court entered its judgment on August 

16, 2010. The district court disagreed and denied Downs’s motion, holding that he was 

sentenced on the date of his sentencing hearing. We review the court’s decision de novo. See 

Raybon v. United States, 867 F.3d 625, 628 (6th Cir. 2017). 

 The principal question here is whether Downs was sentenced at his sentencing hearing on 

August 2 or instead upon the entry of his criminal judgment two weeks later. The answer to that 

question is straightforward: the law uniformly treats the date of the district court’s oral 

pronouncement of sentence as the date of sentencing. For example, the federal sentencing statute 

provides that the district court, “at the time of sentencing, shall state in open court the reasons for 

its imposition of the particular sentence[.]” 18 U.S.C. § 3553(c). That statement of reasons “in 

open court” comes at the time of the court’s pronouncement of sentence, not upon entry of 
No. 16-5368 Downs v. United States Page 3

judgment days or weeks later. Similarly, the Federal Rules of Criminal Procedure—which are 

themselves law, see 28 U.S.C. § 2072—provide that, “[a]t sentencing,” the district court must 

(among other things) ensure that the defendant has discussed his presentence report with his 

attorney, and “allow the parties’ attorneys to comment on the probation officer’s determinations 

and other matters relating to an appropriate sentence[.]” Fed. R. Crim. P. 32(i)(1). And Rule 

43(a)(3) provides that the defendant must be physically present at “sentencing.” All of these 

things occur at the sentencing hearing (assuming the court pronounces the sentence then) rather 

than when the court enters its judgment later. Thus, “[t]he term ‘sentencing’ in legal as in 

ordinary language refers to the pronouncing of sentence by the judge in open court, rather than to 

the subsequent recording of the sentence on a docket sheet.” United States v. Evans, 92 F.3d 

540, 544 (7th Cir. 1996). 

 Downs offers no authority to the contrary. Instead, he points out that his co-defendants 

were sentenced under the Act (because their sentencing hearings took place after August 3, 

2010); and Downs emphasizes the unfairness of applying the longer pre-Act mandatory 

minimum only to him. But again we observe that “[a]s judges—as opposed to, say, legislators—

we can be sympathetic to this argument without being persuaded by it.” United States v. 

Hughes, 733 F.3d 642, 647 (6th Cir. 2013). “We need legal grounds, not just equitable ones,” to 

apply the Act here. Id. And Downs has provided none. Thus, the date of his sentencing was the 

date of his sentencing hearing, which was before the Act’s effective date. Per Dorsey, therefore, 

the Act did not apply to his sentencing and his sentence was lawful. 

 Downs alternatively argues that his lawyer provided constitutionally ineffective 

assistance when he failed to seek a continuance to move his sentencing hearing to a date after the 

Act’s effective date. To obtain relief on this ground, Downs must first show that his “counsel’s 

representation fell below an objective standard of reasonableness.” Strickland v. Washington, 

466 U.S. 668, 688 (1984). To that end, Downs argues—just as a divided panel of the D.C. 

Circuit held in a similar case, see United States v. Abney, 812 F.3d 1079, 1088 (D.C. Cir. 

2016)—that no strategic purpose supported his counsel’s decision not to seek a continuance. But 

we must evaluate that decision based on “counsel’s perspective at the time.” Strickland, 466 

U.S. at 689. And from that perspective, unlike the court in Abney, we see the issue as one of 
No. 16-5368 Downs v. United States Page 4

foresight rather than “strategy.” 812 F.3d at 1088. Strategy involves an allocation of resources 

based in part on facts already known. Foresight, in contrast, requires an ability to predict things 

that have not yet occurred. And Downs’s counsel was not constitutionally incompetent when he 

failed to foresee that the Act’s reduced penalties would apply to crimes committed before the 

Act’s effective date. To the contrary, under the federal savings statute, 1 U.S.C. § 109, federal 

law has long presumed that “the penalties for a crime are those in place when the defendant 

commits it.” Hughes, 733 F.3d at 644. Moreover, the Fair Sentencing Act itself said nothing 

about having any retroactive effect. Id.

 Prior to the Supreme Court’s decision in Dorsey, therefore, § 109 “pointed like a road 

sign towards the conclusion that the FSA did not apply” to crimes committed before the Act’s 

effective date. Id. True, two years after the events at issue here, the Supreme Court held that the 

Act did apply to pre-Act offenders who were first sentenced after the Act’s effective date. 

Dorsey, 567 U.S. at 273. But the Court’s decision in Dorsey presented a notable exception to 

Occam’s razor: rather than decide the case on the relatively simple ground of § 109, the Court 

found that “[s]ix considerations, taken together” lined up to allow the Act to apply retroactively 

to pre-Act offenders who were first sentenced after August 3, 2010. Id. Four dissenting Justices, 

in addition to several circuit courts, apparently did not see that decision coming. See Dorsey, 

567 U.S. at 290-95 (Scalia, J., dissenting); United States v. Tickles, 661 F.3d 212, 214-15 (5th 

Cir. 2011); United States v. Sidney, 648 F.3d 904, 909-10 (8th Cir. 2011); United States v. 

Fisher, 635 F.3d 336, 339-40 (7th Cir. 2011). We cannot fault Downs’s counsel for failing to 

see it either. 

 Finally, Downs suggests that his counsel provided ineffective assistance when he failed 

to seek reconsideration of his sentence shortly after it was pronounced. District courts are 

generally bound by the sentences they orally pronounce. See 18 U.S.C. § 3582(c); United States 

v. Ross, 245 F.3d 577, 585-86 (6th Cir. 2001). Here, as shown above, the sentence was lawful, 

which means that such a motion would have been futile. Nor was counsel ineffective when he 

chose not to bring a direct appeal, since (for the same reason) an appeal would have been futile. 

See United States v. Finley, 487 F. App’x 260, 265 (6th Cir. 2012). 
No. 16-5368 Downs v. United States Page 5

 In summary, we repeat what we said in Hughes: “Congress with a few keystrokes could 

have included a retroactivity provision in the FSA . . . . But as judges we are confined to what 

the law says.” 733 F.3d at 647. And here, as there, the law provides no ground for relief. 

 The district court’s judgment is affirmed.