2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-18-2011

USA v. Richard Reevey

Precedential or Non-Precedential: Precedential

Docket No. 10-1812

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1812

_____________

UNITED STATES OF AMERICA

v.

RICHARD REEVEY,

also known as Richard Reavey,

Richard Reevey,

Appellant

_____________

Appeal from the United States District Court

for the District of New Jersey

(Crim. No. 3-08-527-1)

District Judge: Honorable Joel A. Pisano

_____________

No. 10-1834

_____________

UNITED STATES OF AMERICA

v.

ANTHONY WILLIAMS,

a/k/a CHICK,

Anthony Williams,

Appellant

______________

Appeal from the United States District Court

for the District of New Jersey

(Crim. No. 3-08-445-2)

District Judge: Honorable Joel A. Pisano

_____________
2

Submitted Pursuant to LAR 34.1(a)

November 19, 2010

Before: BARRY, CHAGARES, and VANASKIE, Circuit

Judges

(Filed: December 14, 2010)

Scott A. Krasny, Esquire

Furlong & Krasny 

820 Bear Tavern Road 

Mountain View Office Park, Suite 304 

West Trenton, NJ 08628

Counsel for Appellant Reevey

Paulette L. Pitt, Esquire

Suite 102 

165 Main Street 

Woodbridge, NJ 07095

Counsel for Appellant Williams

Mark E. Coyne, Esquire

Sabrina G. Comizzoli, Esquire

Office of United States Attorney 

970 Broad Street 

Room 700 

Newark, NJ 07102

Counsel for Appellee

______________

OPINION OF THE COURT

______________

VANASKIE, Circuit Judge.

These consolidated appeals present the question of 

whether the Fair Sentencing Act of 2010, Pub. L. No. 111-

220, 124 Stat. 2372 (2010) (“FSA”), may be applied 
3

retroactively to authorize the District Court to impose a 

sentence below the prescribed mandatory minimum prison 

term in effect at the time the Appellants were sentenced. We 

answer the question in the negative, and thus affirm the 

sentences imposed by the District Court.

I.

On December 7, 2009, Appellant Richard Reevey pled 

guilty to a charge of conspiracy to possess with intent to 

distribute cocaine base in violation of 21 U.S.C. §§ 841(a),

841(b)(1)(B), and 846. Section 841(b)(1)(B) of Title 21 

U.S.C. prescribes a mandatory minimum prison term of five

years and a maximum prison term of forty years.

1

 Reevey 

stipulated in his plea agreement that his offense conduct, 

which occurred in March of 2007, included 10.8 grams of 

cocaine base. On March 11, 2010, the District Court 

sentenced Reevey to the mandatory minimum term of five

years. 

On August 26, 2009, Appellant Anthony Williams 

entered a plea of guilty to a superseding Information charging 

him with conspiracy to distribute and possess with intent to 

distribute five grams or more of cocaine base, in violation of 

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Williams‟ 

criminal conduct took place between August of 2007 and 

January of 2008. In his plea agreement, Williams stipulated 

that “the offense and relevant conduct involved between 5 

and 20 grams of cocaine base.” (A. 42.) Hence, Williams 

was also subject to the mandatory minimum prison term. On 

March 11, 2010, Williams was sentenced to the five-year

mandatory minimum sentence. Responding to Williams‟ 

 

1 Section 846 of Title 21 U.S.C. provides that “[a]ny 

person who attempts or conspires to commit any offense 

defined in this subchapter shall be subject to the same 

penalties as those prescribed for the offense, the commission 

of which was the object of the attempt or conspiracy.” Thus, 

a conspiracy to distribute the minimum quantity of crack 

cocaine triggering a mandatory prison term of at least five 

years carries with it the same sentence as the substantive drug 

trafficking crime delineated in 21 U.S.C. § 841(b)(1)(B).
4

request for a downward departure based on the disparity in 

treatment between crack and powder cocaine offenders, the 

District Court, after noting that the “issue has been taken up 

by Congress,” declined to grant a downward departure. (A. 

93.) 

Both Reevey and Williams appealed their sentences, 

arguing that the District Court erred in refusing to impose a 

sentence below the statutory mandatory prison term of five

years.

2

 The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 

3742(a). 

II.

Ordinarily, district court sentences are reviewed under 

a “deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41 (2007). Where, however, the 

challenge to the sentence concerns the interpretation of a 

statute, we exercise plenary review. See United States v. 

Soto, 539 F.3d 191, 194 (3d Cir. 2008).3 

Reevey argues on appeal that the District Court failed 

to adequately consider the 18 U.S.C. § 3553(a) factors when 

imposing the mandatory minimum sentence. Williams claims 

on appeal that his sentence was unreasonable because the 

District Court did not recognize the “scientific and 

constitutional flaws” in the crack cocaine sentencing 

guidelines, and “[i]n the event that the [FSA is passed] during 

the pendency of this appeal, the sentence that was imposed 

will be an illegal sentence.” (Williams‟ Br. at 18.) 

 

2 We consolidated the appeals of Reevey, No. 10-1812, 

and Williams, No. 10-1834, by order dated August 30, 2010.

3 The government asserts that Reevey and Williams 

failed to preserve challenges to their sentences so that our 

review must be limited to plain error. See United States v. 

Hawes, 523 F.3d 245, 249 (3d Cir. 2008). Because we 

discern no error by the District Court, plain or otherwise, 

there is no need to determine whether Appellants‟ present 

arguments were sufficiently preserved in the District Court. 
5

Appellants‟ arguments presuppose the existence of 

discretionary authority to impose a prison term of less than 

five years in these cases. As the government notes, however, 

statutory mandatory minimum sentences are binding law and 

are to be enforced except in limited circumstances which are 

inapplicable here. 

Reevey‟s invocation of the § 3553(a) factors is 

foreclosed by United States v. Kellum, 356 F.3d 285, 289-90 

(3d Cir. 2004), where, in affirming the District Court‟s 

sentence, we held that “it is now clear that § 3553(a) did not 

give the district court the authority to sentence [appellant] 

below the statutorily mandated minimum sentence[.]” 

Indeed, “it is clear that Congress intended that mandatory 

minimum sentences are not to be affected by the general 

considerations of § 3553(a)(2) because that statute provides 

the authority for the district court to depart below the 

statutorily mandated minimum sentence.” Id. at 289. Under 

18 U.S.C. § 3553(e), upon a substantial assistance motion by 

the government, “the court shall have the authority to impose 

a sentence below a level established by statute as a minimum 

sentence . . . .” Additionally, under § 3553(f), a court “shall 

impose a sentence . . . without regard to any statutory 

minimum sentence” if the “safety valve” factors are satisfied.4 

 

4 The factors include:

(1) the defendant does not have more than 1 

criminal history point, as determined under the 

sentencing guidelines; 

(2) the defendant did not use violence or 

credible threats of violence or possess a firearm 

or other dangerous weapon (or induce another 

participant to do so) in connection with the 

offense; 

(3) the offense did not result in death or serious 

bodily injury to any person; 

(4) the defendant was not an organizer, leader, 

manager, or supervisor of others in the offense, 

as determined under the sentencing guidelines 

and was not engaged in a continuing criminal 

enterprise, as defined in section 408 of the 

Controlled Substances Act; and 
6

18 U.S.C. § 3553(f); see Kellum, 356 F.3d at 289. “These 

two narrow exceptions are the only authority a district court 

has to depart below a mandatory minimum sentence . . . .” 

Kellum, 356 F.3d at 289 (citing United States v. Santiago, 

201 F.3d 185, 187 (3d Cir. 1999); United States v. Villar, 184 

F.3d 801, 803 (8th Cir. 1999)). It is undisputed that the 

government did not file substantial assistance motions in 

either case and neither Reevey nor Williams qualify for 

application of the § 3553(f) “safety valve.” Therefore, the 

two narrow exceptions to imposing the statutory mandatory 

minimum sentence are inapplicable.

As we recognized in United States v. Gunter, 462 F.3d 

237, 248 (3d Cir. 2006), unlike the advisory sentencing 

guidelines range, “the statutory minimum drug trafficking 

penalty in 21 U.S.C. § 841(b) . . . is mandatory . . . .” See

also Kimbrough v. United States, 552 U.S. 85, 102-03 (2007) 

(“A person convicted of possession with intent to distribute 5 

grams or more of crack cocaine must be sentenced to a 

minimum of 5 years. . . .”) (emphasis added). Thus, the 

District Court was obligated to impose five-year prison terms 

in these cases.

III.

On August 3, 2010, approximately four months after 

 

(5) not later than the time of the sentencing 

hearing, the defendant has truthfully provided to 

the Government all information and evidence 

the defendant has concerning the offense or 

offenses that were part of the same course of 

conduct or of a common scheme or plan, but the 

fact that the defendant has no relevant or useful 

other information to provide or that the 

Government is already aware of the information 

shall not preclude a determination by the court 

that the defendant has complied with this 

requirement. 

18 U.S.C. § 3553(f). In light of their prior convictions, 

neither Reevey nor Williams qualified for application of the 

safety valve. 
7

Appellants were sentenced, the President signed the FSA into 

law. Pertinent to these consolidated appeals, the FSA 

amended the minimum amount of crack cocaine necessary to 

trigger the five-year mandatory minimum prison term from 

five grams to twenty eight grams. FSA § 2(a)(2). Reevey‟s

acknowledged distribution of 10.8 grams of crack and 

Williams‟ stipulation to responsibility for between five and 

twenty grams of cocaine base would not trigger the five-year 

mandatory minimum sentence under the FSA. Reevey and 

Williams argue that the FSA should be applied to them.

The government asserts that retroactive application of 

the FSA is precluded by the general “Savings Statute” found 

at 1 U.S.C. § 109. The Savings Statute, in pertinent part, 

provides:

The repeal of any statute shall not have the 

effect to release or extinguish any penalty, 

forfeiture, or liability incurred under such 

statute, unless the repealing Act shall so 

expressly provide, and such statute shall be 

treated as still remaining in force for the 

purpose of sustaining any proper action or 

prosecution for the enforcement of such 

penalty, forfeiture, or liability.

1 U.S.C. § 109. In effect, the Savings Statute mandates that a 

court apply the penalties in place at the time the crime was 

committed unless the new law expressly provides otherwise. 

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 

661 (1974). As the Court in Marrero observed, the Savings 

Statute “has been held to bar application of ameliorative 

criminal sentencing laws repealing harsher ones in force at 

the time of the commission of an offense.” Id. (citations 

omitted). Moreover, the Savings Statute is applicable to 

statutory amendments. United States v. Jacobs, 919 F.2d 10, 

12-13 (3d Cir. 1990). In Jacobs, we held that the District 

Court could not apply a statutory amendment in effect at the 

time of the defendant‟s sentencing that made her eligible for 

probation because the statute in effect at the time of the 

commission of her crime precluded eligibility for probation

and Congress had not expressed an intention to give 

retroactive effect to the statutory change. Id. at 13. It has 
8

also been held that courts must apply the statutory law in 

effect at the time of the commission of the offense even 

where a statute is repealed while the case is on appeal. See

Pipefitters Local Union No. 562 v. United States, 407 U.S. 

385, 434-35 (1972). Consequently, we have recognized that:

it is possible that sometime in the future two 

defendants may receive different penalties for 

having committed essentially the same 

crimes—although at different times. Such a 

result may be considered anomalous, but it is 

Congress that has drawn the line. If penalties 

are to differ because of an arbitrarily selected 

date, it seems fairer that the severity of the 

penalty depend upon the voluntary act of a 

defendant in choosing the date of his criminal 

conduct than upon the date of sentencing, which 

could vary with the fortuities of criminal 

proceedings. 

United States v. Caldwell, 463 F.2d 590, 594 (3d Cir. 1972) 

(citation omitted); see also Marrero, 417 U.S. at 664

(explaining that defendant‟s argument for leniency was 

“addressed to the wrong governmental branch. Punishment 

for federal crimes is a matter for Congress, subject to judicial 

veto only when the legislative judgment oversteps 

constitutional bounds.”). 

 

The general Savings Statute requires that any intent to 

“release or extinguish any penalty” under an existing statute 

be “expressly provide[d]” in the subsequent congressional 

enactment. The FSA does not contain an express statement 

that the increase in the amount of crack cocaine triggering the 

five-year mandatory minimum is to be applied to crimes 

committed before the FSA‟s effective date. Nor does it 

provide that those sentenced before the FSA‟s effective date 

are to be re-sentenced. Therefore, the FSA cannot be applied 

to Reevey and Williams. 

Our conclusion is consistent with the decision of every 

Court of Appeals to have addressed this issue. See United 

States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010) (FSA 

“is not . . . retroactive and thus does not apply to this case”);
9

United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir.

2010) (“[T]he Fair Sentencing Act contains no express 

statement that it is retroactive, and thus the „general savings 

statute,‟ 1 U.S.C. § 109, requires us to apply the penalties in 

place at the time the crime was committed.”); United States v. 

Bell, 624 F.3d 803, 814 (7th Cir. 2010) (“Like our sister 

circuits that have considered this issue, [] we conclude that 

the savings statute operates to bar the retroactive application 

of the FSA.”); United States v. Gomes, 621 F.3d 1343, 1346 

(11th Cir. 2010) (per curiam) (affirming ten-year mandatory 

minimum sentence under 21 U.S.C. § 841 “because the FSA 

took effect in August 2010, after appellant committed his 

crimes, [and] 1 U.S.C. § 109 bars the Act from affecting his 

punishment”); United States v. Carradine, 621 F.3d 575, 580 

(6th Cir. 2010) (affirming sixty-month mandatory minimum 

sentence because the FSA “contains no express statement that 

it is retroactive nor can we infer any such express intent from

its plain language”). We find this consistent line of authority 

to be compelling.

5

IV.

 

5 The Appellants‟ reliance on United States v. Douglas,

--- F. Supp. 2d ---, Crim. No. 09-202, 2010 WL 4260221 (D. 

Me. Oct. 27, 2010), is misplaced and unpersuasive. In 

Douglas, the court held that the FSA retroactively applied to a 

defendant who had yet to be “sentenced, but who engaged in 

crack cocaine trafficking and pleaded guilty under the 

previous harsher regime.” Id. at *1. Douglas is easily 

distinguishable from the present appeals. Here, both Reevey 

and Williams committed their crimes and were sentenced 

before the FSA was signed into law. As the authoring Judge 

of Douglas acknowledged in another opinion issued that same 

day, the FSA does not apply to those who, like Reevey and 

Williams, have already been sentenced. United States v. 

Butterworth, Crim. No. 06-62, 2010 WL 4362859, at *1 (D. 

Me. Oct. 27, 2010) (“Thus, this case is unlike United States v. 

Douglas, Case No. 09-202 (D. Me. Oct. 27, 2010), where 

today I . . . ruled that for sentences going forward the 

provisions of the Fair Sentencing Act do apply, even if the 

criminal conduct occurred before its enactment . . . .”).
10

In conclusion, Appellants‟ crimes are governed by the 

five-year statutory mandatory minimum sentence that was in 

effect at the time the crimes were committed. See 21 U.S.C. 

§ 841(b)(1)(B)(iii) (2006). Accordingly, the sentences 

imposed by the District Court will be affirmed.