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

E UGENE D OWNS , Petitioner-Appellant ,

v

.

U NITED S TATES OF A MERICA , Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ 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 DEFE NDER SERVICES OF EASTERN TENNESSEE, INC., Greeneville, Tennessee, for Appella nt. William A. Roach, Jr., UNITED STATES ATTORNEY’S OFFICE, Knoxville , Tennessee, for Appellee.

_________________ OPINION

_________________ KETHLEDGE, Circuit Judge. Eugene Down s 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 

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

orally pronounced his sentence—bu t 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 di stribute 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 pr onounced 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 Cour t found the § 109 presum ption rebutted as to pre-Act offenders who were firs t sentenced afte r 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 hi s sentence under 28 U.S.C. § 2255. Although Downs’s sentencing hearing took place on A ugust 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 de nied Downs’s motion, holding that he was sentenced on the date of his sentencing hearin g. 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 Down s 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: th e law uniformly treats the date of the district court’s oral pronouncement of sentence as the da te of sentencing. For example, the federal sentencing statute provides that the district court, “at the time of sentenci ng, shall state in open court the reasons for its imposition of the particular sentence[.]” 18 U. S.C. § 3553(c). That st atement of reasons “in open court” comes at the time of the court’ s pronouncement of sentence, not upon entry ofNo. 16-5368 Downs v. United States Page 3

judgment days or weeks later. Similarly, the Federal Rules of Crimin al 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 proba tion 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 phys ically present at “sentencing.” All of these things occur at the sentencing hearing (assuming the c ourt pronounces the sentence then) rather than when the court enters its judgment later. Thus, “[t]he term ‘sente ncing’ 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 (b ecause their sentencing heari ngs 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 oppo sed 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 le gal 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 sent encing and his sentence was lawful.
Downs alternatively argues that his lawy er 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 objectiv e standard of reasonableness.” Strickland v. Washington , 466 U.S. 668, 688 (1984). To that end, Downs ar gues—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 suppor ted 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 pe rspective, unlike the court in Abney , we see the issue as one ofNo. 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 penalti es 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 fo r a crime are those in place when the defendant commits it.” Hughes , 733 F.3d at 644. Moreov er, 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 is sue here, the Supreme Court held that the Act did apply to pre-Act offenders who were fi rst 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 fi rst sentenced after August 3, 2010. Id. Four dissenting Justices, in addition to several circuit courts, appa rently 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 ca nnot fault Downs’s counsel for failing to see it either.
Finally, Downs suggests that his counsel provi ded ineffective assistance when he failed to seek reconsideration of his sentence shortl y after it was pronounced. District courts are generally bound by the sentence s 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 prov ision 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.