10-317

USA v. Diaz

 UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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August Term, 2010

(Submitted: December 10, 2010 Decided: December 15, 2010)

Docket No. 10-317-cr

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UNITED STATES OF AMERICA,

Appellee,

 -v- 10-317-cr

 

STEVEN A. DIAZ, a/k/a Peto,

Appellant.

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Before: CABRANES, POOLER, and WESLEY, Circuit Judges.

1 Counsel for Appellant moves for permission to withdraw pursuant to Anders v. California,

2 386 U.S. 738 (1967), and the Government moves for summary affirmance of an order of the district

3 court (Buchwald, J.) denying Appellant’s motion for a reduction to his sentence. We grant counsel’s

4 Anders motion and the Government’s motion for summary affirmance, inter alia, on the ground that

5 Appellant is not entitled to the benefit of the recently enacted Fair Sentencing Act of 2010.

6 Appellant was sentenced before the effective date of the Act, and the Act is not retroactive.

7

8 The Anders motion is GRANTED and the judgment is AFFIRMED.

9 ____________________

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4 YUANCHUNG LEE, Federal Defenders of New York, Inc., 

5 New York, NY, for Appellant.

6

7 ALVIN BRAGG, Assistant United States Attorney, for Preet

8 Bharara, United States Attorney for the Southern District of New

9 York, New York, NY, for Appellee.

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11 PER CURIAM:

12 Yuanchung Lee, counsel for Appellant, moves for permission to withdraw as counsel

13 pursuant to Anders v. California, 386 U.S. 738 (1967), and the Government moves for summary

14 affirmance of an order of the district court (Buchwald, J.) denying Appellant’s motion for a

15 reduction to his sentence. The Government argues, inter alia, that the district court’s denial of

16 Appellant’s motion for a reduction to his sentence should be affirmed because the Fair

17 Sentencing Act of 2010 (“FSA”), which reduces the disparity between crack and powder cocaine,

18 is not retroactive, and therefore, could not operate to reduce Appellant’s sentence, since he was

19 convicted and sentenced before the FSA was signed into law.

20 Pursuant to the general savings statute, 1 U.S.C. § 109, “[t]he repeal of any statute shall

21 not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the

22 repealing Act shall so expressly provide, and such statute shall be treated as still remaining in

23 force for the purpose of sustaining any proper action or prosecution for the enforcement of such

24 penalty[.]” In this case, the FSA contains no express statement that it is intended to have

25 retroactive effect nor can we infer such intent from its language. As a result, the FSA cannot be

26 applied to reduce Appellant’s sentence because, inter alia, he was convicted and sentenced before

27 the FSA was enacted. See United States v. Carradine, 621 F.3d 575 (6th Cir. 2010); United
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1 States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (“[B]ecause the FSA took effect . . . after

2 appellant committed his crimes 1 U.S.C. § 109 bars the Act from affecting his punishment.”). 

3 We have considered the remaining arguments and conclude that there is no non-frivolous

4 basis on which Appellant could appeal the district court’s order denying his motion for a

5 reduction of sentence. Accordingly, upon due consideration, it is hereby ORDERED that the

6 Anders motion and the motion for summary affirmance are GRANTED, and the judgment of the

7 district court declining to reduce Appellant’s sentence is AFFIRMED.