10-5214-cr United States v. Luke

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 6 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 7 BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 8 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 9 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 10 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 11 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 12 13 14 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 15 Daniel Patrick Moynihan United States Courthouse,500 Pearl Street, in the City of New York, 16 on the 25 thday of October, two thousand twelve, 17 18 Present: PIERRE N. LEVAL, 19 ROSEMARY S. POOLER, 20 BARRINGTON D. PARKER., 21 Circuit Judges

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_____________________________________________________ 23 24 UNITED STATES OF AMERICA, 25 26 Appellee

, 27 28 -v- 10-5214-cr 29 30 AKIEM LUKE, also known as Ox, 31 32 Defendant-Appellant

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_____________________________________________________ 34 35 Appearing for Appellee: Christopher D. Frey, A ssistant United States Attorney, S.D.N.Y., 36 (Preet Bharara, United States Attorney; Katherine Polk Failla, 37 Assistant United States Attorney, on the brief ), New York, NY 38 39 Appearing for Appellant: Arza Feldman, Feldman and Feldman, Uniondale, NY 40 41 Appeal from a judgment of the United States District Court for the Southern District of 42 New York (Preska, J. ). 43 44 45 46 47 482 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 1 AND DECREEDthat the judgment of said District Court be and it hereby is VACATED and 2 REMANDED for re-sentencing. 3 4 Akiem Luke appeals from the mandatory minimum sentence of 120 months imposed by 5 the district court on December 15, 2010. We assume the parties’ familiarity with the underlying 6 facts, procedural history, and specification of issues for review. 7 8 In Dorsey v. United States , 132 S. Ct. 2321 (2012), the Supreme Court concluded that the 9 revised mandatory minimum sentences of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 10 § 2, 124 Stat. 2372 (“FSA”) applied to individuals who had committed their offense prior to the 11 passage of the Act but were not sentenced until after the August 3, 2010 enactment date. We 12 have recognized that Dorseyabrogates our earlier decision in United States v. Acoff , 634 F.3d 13 200 (2d Cir. 2011), which had held that the more lenient mandatory minimums only applied to 14 offenders who committed their offense after the August 3, 2010 enactment date. United States v. 15 Highsmith , 688 F.3d 74, 75 (2d Cir. 2012). 16 17 The application of Dorseyin this case requires that we vacate Luke’s sentence and 18 remand to the district court for re-sentencing consistent with the FSA. See Highsmith , 688 F.3d 19 at 77. 20 21 Accordingly, the sentence imposed by the district court hereby is VACATED and the 22 case is REMANDED for re-sentencing. 23 24 FOR THE COURT: 25 Catherine O’Hagan Wolfe, Clerk 26 27