NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0229n.06 Nos. 10-1419, 10-1486 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. KEVI N J . RODGERS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED ST AT E S DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : BO GGS, ROGERS, and SUTTON, Circuit J udg es.

BO GGS, Circuit J udg e. Kevin Rodge rs, alre ady co nvicted of distributing cra ck

coca ine and near ly halfwa y throug h a four- y ear term of supervised rele ase, sold at least 11.2 g rams of cr ack c ocaine to an under cover office r on Michig an’s Uppe r Peninsula Substance Enf orce ment Tea m (“U PSET”) over the course of three t ra n sactions. After the third sale, office rs arr ested Rodge rs in Marque tte, Michig an. Throug h Rodge rs’s g irlfriend, Cry stal Abbott, the police lear ned that Rodge rs rente d a room from Steven Calhoun, a friend in near by I shpeming

. Some office rs proce eded to Calhoun’s house; other s w e n t to th e M a rquette police station to obtain a sear ch war rant. Calhoun consente d to a sear ch of his entire home, except for a locked bedroo m , which Rodge rs occupie d. Offic ers eventua lly enter ed the locked room pursuant to a valid war rant and found over $12,500 in cash, including marke d bills that UPSET had used to b u y co ca i n e fr om Rodge rs. A fede ral jury found Rodge rs g uilty of conspirac y to dist ri b u t e, and to possess with the intent toNos. 10-1419, 10-1486

United States v. Rodge rs distribute, 50 g rams or more of coca ine base, and of three counts of di stributing coc aine ba se. At

no point did Rodge rs move for a judgme nt of acquittal under Rule 29. Rodge rs now appea ls, making three claims: (1) the district court err ed by d en y i n g h i s motion to suppress evidenc e found in the locked room in Calhoun’s house; (2) the g overnme nt’s evidenc e wa s n ot sufficie nt to support the convictions; and (3) the Fa ir Sentencing Act of 2010 should apply to him retroact i v ely

. None of these c laims entitles Rodger s to relief. We a ffirm. I UPSET Offic er Craig Michelin arr ang ed to purcha se six g rams of cra ck coca ine from David L amp i n en in Marque tte, Michig an on Aug ust 11, 2008. To prepa re for the transac tion, Michelin photocopied the bills he planned to use, so he would be able to identify them by their serial

n u m b ers. He also wore a voice transmitter, and arr ang ed for a surveillance team to observe the

transac tion. On August 11, Mic h el i n and L ampinen met and drove in Michelin’s car to Patrick King ’s residenc e. King , howeve r, did not have the coca ine that Michelin arr ang ed to pur chase , so he used Michelin’s cell phone to contac t his source and arr ang e a meeting place

. Michelin t h en drove with L ampinen and King to Founde r’s L anding , a park in Marque tte. Rodge rs met them there , approa ched the window next to King ’s s ea t , t o o k the money Michelin had g iven King , and g ave King sever al small bag s of cr ack c ocaine

.

Nine day s later, Michelin arr ang ed another purcha se. This time, he contac ted King direc tly and arr ang ed to buy an “eig ht ball,” or 3.5 g rams, of cra ck coca ine. Ag ain, he photocopied the bills he pl an n ed to use in the transac tion, wore a transmitter, and arr ang ed for a surveillance - 2 -Nos. 10-1419, 10-1486

United States v. Rodge rs team. Michelin went to King ’s ho u s e, wher e he waited with King until Rodge rs arr ived in a car driven by Cry stal Abbott. Abbott came to King ’s door, delivere d the cra ck coca ine, and took Michelin’s money

. 1

On November 12, 2008, Michelin arr ang ed a third transac tion with King

. He was to buy eig ht gr ams of cr ack c ocaine for $600. As be fore , he photocopied the bills he planned to use,

wore a transmitter, and arr ang ed for a surveillance team. This transac tion, howeve r, differ ed from the other two. I t was a “buy -bust,” meaning that, afte r the deal ended, t h e p o l i ce would arr est Rodge rs. Michelin arr ived at King ’s house in the ear ly evening

. After making sure that Michelin had enoug h money with him, King called Rodge rs to arr ang e delivery of the drug s. An UPSET surveillance team saw Rodge rs leave Cry stal Abbott’s house around 5:30 p . m . and drive

t o wa rd King ’s house in a g old Pontiac Gra nd Am. Rodge rs arr ived around 5:35 p.m. with s ev en g rams of cra ck coca ine, one g ram less than Michelin arr ang ed to buy

. He g ave the drug s to King and left. Michelin and King came to the understanding tha t they would complete the tr ansac tion once Rodge rs obtained more cra ck coca ine, and Michelin left. Michelin then went to his car and notified the surveillanc e tea

m that the transac tion was succe ssful. UPSET office rs foll owed Rodger s from the time he left King ’s hous e and, as soon

as Michelin notified them that the transac tion was a succe s s , ar re s t ed him. I n Rodge rs’s car , the police found $619 in cash, including the money Mic h el i n used in the just-completed drug

Michelin could not identify Rodge rs beca use he stay ed in the ca r, b u t a m ember of the 1 surveillance team did identify Rodge rs as the pa sseng er in the c ar A bbott was driving

.

- 3 -Nos. 10-1419, 10-1486

United States v. Rodge rs transac tion, and reg istration paper s indicating that Rodge rs lived in I shpeming , at his friend Steven Calhoun’s addre ss. The police next went to the addre ss in Marquette that Rodge rs listed as his residenc e when repor

ting to the United States probation depar tment for an ear lier distribution-ofcoca ine conviction. There , they met Cry stal Abbott, who consente d to a sear ch of her apar tment and told them that Rodge rs kept a second residenc e in I sh p em i n g. She offe red to lead office rs to the I shpeming residenc e b ec au s e s he could not reme mber the addre ss. The police acc epted Abbott’s offe r, rode with her to Calhoun’s house, rela y ed the information they had acquir ed to other office rs, and took her

home. After rec eiving this information, Michelin beg an to prepa re a sear ch war

rant for the I shpeming residenc e, and sent office rs to secur e the house until the war rant issued. When of

fice rs first arr ived ar ound 8:30 p.m., Calhoun was uncooper ative. Ultimately , howeve r, he c onsented to

a sear ch of his entire house, except for a bedro o m t h at Rodge rs occupie d and had secur ed with a persona l lock. The office rs decide d not to open t h e ro om until Michelin obtained a war rant, but

sear ched the rest of the house. Fr om the time the office rs enter ed the residenc e until the s ea rch

war rant ultimately

issued, Calhoun sat on a couch in his living room, drinking “a six -pac k and . . .

a half-pint of J im Be am.” Fr om this vantag e point, he could not see the entra nce to Rodge rs’s room. Michelin, afte r working throug h a number of technica l and logistica l difficulties, obtained a sear ch war

rant for Rodge rs’s room in Calhoun’s I shpem i n g h o m e. He executed the

war rant and opened the room, using a key another office r had confiscated from Rodge rs ear lier. I n the room, office rs found a Crown Roy al whis k y b ag containing $12,900 in cash, including four marke d hundred- dollar bills that Michelin had used in the Aug ust 11 transac tion. - 4 -Nos. 10-1419, 10-1486

United States v. Rodge rs

The next day , M i ch el i n made an entry in Michig an’s Automated I ncident Capture Sy stem I ncident Property Report, indicating that office rs found the cash at 10:00 p.m., near ly an hour befor e the war

rant issued. He testified at the suppression hear ing, howeve r, that 10:00 p.m. was an estimate, and that no office r entered the locked room until the war rant issued. Other office rs’ testimony corr oborate d this point

. O n November 25, 2008, a fede ral g rand jury char g ed Rodge r s , L a mp in e n , A

b b o tt , a n d King with a series of drug -re lated offe n s es . R o dg ers specific ally fac ed char g es of conspirac y to distribute, and to possess with intent to distribute, fifty or more g rams of coca ine base; distribution of coca ine base on Aug ust 11, 2008 and Aug ust 20, 2008; and distribution of five or more g rams of

coca ine base on November 12, 2008. The g overnme nt later filed a s upplemental information, alleg ing that Rodge rs had a prior felony drug conviction, and the United States probation depar tment filed a Petition for Warrant or Summons for Offe nder Under Supervision in the ear lier case , alleg ing that Rodge rs had violated the terms of his supervise d rele ase.

I n Fe bruar

y 2009, Rodge rs filed a motion to suppress the evidenc e seiz ed from his

room in Calhoun’s apar

tment. He arg ued that he had a cog nizable privac y interest in the I shpeming

room, and that office rs violat ed t hat interest by enter ing the room befor e the sear ch war rant was issued. After an evidentiar y hear ing, a mag istrate judge rec ommended that the court deny Rodge rs’s motion. He found first that “the sear ch war rant was issued prior to the execution of the sear ch of the locked room and

. . . the notation in the repor t was an i n ac cu rate estimate.” Acc ording ly , he

rea soned, the office rs sear ched the room pu rs u an t t o a valid war rant and there was no Four th Amen d m en t v i o l ati on. The mag istrate judge also noted that Rodge rs violated the terms of his - 5 -Nos. 10-1419, 10-1486

United States v. Rodge rs supervised rele ase by maintaining a residenc e in I shpeming without telling his probation office r, and that felons on supervised rele ase have a lesser expectation of privac y , even in a leg itimate residenc e, than an or dinary

citizen. Thus, he sug g ested, any expectation of privac y Rodge rs had in the r oom

was not an ex p ec t at i o n t hat society was prepa red to view as objectively rea sonable. The district

court acc epted the mag istrate judge ’s rec ommendation on the first ground, holding: “ther e was sufficie nt evidenc e in the record to su p port the M ag istrate J udg e’s finding that the s ear ch warra nt

was valid. The valid sear ch war rant provides a sufficie nt ba sis f or deny ing Def

endant’ s motion to suppress evide nce.”

Dissatisfied with his lawy er’ s perf ormanc e, Rodg ers moved f or, and rec eived, new counsel. His new lawy er convince d the mag istrate judge to re- open the ear lier suppression hear ing. At this second suppression hear ing, Rodge rs called Calhoun’s upstairs neig hbor, who testified that he hear d draw ers open and close in Calhoun’s kitchen, and hear d office rs move ceiling tiles, befor e 1 0 :51 p.m. The neig hbor could not, howeve r, say definitively that the noise he hear d came fro m Rodge rs’s room.

Ag ain, the mag istrate judge rec ommended that the district court deny the suppression motion. He rea soned that the neig hbor’s testimony did not “esta blish that a sear ch of the bedroom occupie d by Rodge rs was conducte d prior to the arr ival of the sear ch war rant,” and reiter ated: “[t] he testimony of the office rs at the [first] hear ing

. . . provides ample support for the conclusion that the

sear ch of the locked bedroom did not occur until afte r the arr ival of the sear ch war rant.” Ag ain, the mag istrate judge sug g ested that Rodge rs did not have an objectively rea s o n ab l e expectation of privac y in the room beca

use of his lies to his probation office r and his status as a felon on supervised

- 6 -Nos. 10-1419, 10-1486

United States v. Rodge rs rele ase. The district cour t denied the motion on the first g round, reje cting the broade r proposition that Rodge rs had no objec tively rea sonable e x pecta tion of privacy in the room. Rodge rs went to trial on November 1, 2009. Michelin and a number of other UPSET office rs testified to the fac ts surrounding the three underc over transac tions, Rodge rs’s arr est, and the office rs’ discovery of $12,900 in Rodge rs’s I shpeming room. King confirme d that he often used Rodge rs as a supplier when dealing drug s to others, and Abbott testified that she saw Rodge rs make around one hundred de liveries of c rac k coca ine, ea ch involving a minimum of one- half g ram, a nd

t h at s h e would sometimes make deliverie s for him, including the Aug ust 18 delivery to Ki n g fo r Michelin. T h e go v ernment also called DEA Ag ent Kevin Driscoll, who g ave opinion testimony about how drug traff

icking org anizations g ener ally opera te, how much cra ck coca ine costs, and how drug traff ick e r s u s e telephones. Specifica lly , Driscoll opined that the $12,900 in the I shpeming room would have purcha sed around 129 g rams of cra ck coca ine in Mic higa n’s Upper Peninsula reg ion. The defe nse offe red testimony from Rodge rs, who claimed that he was not involved in sell i n g drug s, that the I shpeming room was not a residenc e, but somewher e he went when he neede d to g et awa

y fro m Ab b o t t , and that he did not know that there was money in the room. Rodge rs also provided alibi information for the two Aug ust transac tions. Rodge rs’s mother testified that she had g iven her son $4,000 to purcha se a c ar in 2008. Finally , Staci Maki testified t hat s he

was in a romantic rela tionship with Rodge rs in 2008, and that Abbott told her she would rathe r see Rodge rs “put aw ay

for life ” than se e him with Maki. The district c ourt g ave the jury a verdic t form, specific ally asking whether Rodge rs “conspire [d] to distribute OR possess[ed] with intent to distribute 50 g rams or more of a mix ture or - 7 -Nos. 10-1419, 10-1486

United States v. Rodge rs substance containing a detec table amount of coca ine base (cr ack) ? ” The jury answe red y es. I t also found Rodge rs g uilty of eac h specific distribution offe nse char g ed, and found that he distributed five g rams or more of cra ck coca ine. At no point did Rodge rs file a motion for judgme nt of ac q u i t t al under F eder al Rule of Criminal Procedur e 29.

At sentenc ing, the district court d et ermined: “cle arly 200 g rams or more [of cra ck

coca ine] was involved in this conspirac y .” I t calc ulated Rodge rs’s g uidelines rang e using an offe nse level of 36 and a criminal history cate g ory of I V. The court did, howeve r, believe that the sentenc ing rang e was “fa irly steep,” and imposed the mandatory minimum sent en ce of twenty y ear s of imprisonment on the conspirac y count, which repr esente d a twenty -two month downwar d depar ture from Rodge rs’s g uidelines rang e. I t also imposed 180-month sentenc es for eac h possession offe nse, to run conc urre ntly

with eac h other a

nd with the longe r conspira cy sentenc e. Rodg ers a

ppeals. I I A motion to suppress prese nts a mix ed question of law and fac t. We, there fore , use

a mix ed standard of re v iew when considering challeng es to suppression decisions, revie wing deter minations of l aw de novo and findings of fac t for clear err or. United St ates v. Richards , 659 F.3d 527, 536 ( 6th Cir. 2011).

A fac tual finding will only be clea rly err oneous when, althoug h there may be evidenc e to support it, the revie wing co u rt o n the entire evidenc e is left with the definit e and firm conviction that a mistake has been committed. This court acc ords defe renc e to the d i s trict court’s assessment of cre dibilit y inasmuch as the court was in the best p o s i t ion to make such a deter mination. The evidenc e must b e considere d in the light m o st favor able to the party that preva iled in the cour t below—in this case, the g overnme nt.

- 8 -Nos. 10-1419, 10-1486

United States v. Rodge rs United States v. Smith , 594 F.3d 530, 535 (6th Cir. 2010) (interna l quotation m arks and citations omitted). The court below did not commit clea r err or when i t d et er m ined that the office rs enter ed Roge rs’s I shpeming room only afte r Michelin o b t ained a valid war rant. Two UPSET office rs who came to Calhou n ’s h o m e around 8:30 p.m. testified that Rodge rs’s room rema ined locked until the war

rant issued. Michelin testified that, while he did not see office rs actua lly unlock the room bec ause he was talking t o Calhoun, office rs bega n to enter only afte r he a rrived w ith the

sear ch war

rant. He also explained that the notation in his proper ty repor t, which i ndicated that office rs found items in R o d ger s ’s room at 10:00 p.m., was an estimate. I n response , Calhoun testified that he hear d noises in the are a of Rodge rs’s room, and that the office rs mentioned finding

near ly $15,000. He could not, howeve r, remember whether these events occur red befor e or afte r Michelin arr ived with the sear ch war rant. Rodge rs also offe red testimony from Calhoun’s upstairs neig hbor, who claimed that he heard noises in C al h o u n ’s apar tment as early as 8: 30 or 9: 00 p.m. The neig hbor, howeve r, expressly identified the noises he hear d as “kitchen draw ers or cupboar ds” opening and closing , and a moveable ceiling tile being lifted. He could not say definitively whether the noises he hear d came from Rodge rs’s room, from the kitchen, which was adjac ent to that room, or fr om somewhere else in the house.

The mag istrate ju d g e c o n sidered this evidenc e and found that “the sear ch war rant was issued prior to the execution of the sear ch of the locked room and

. . . the notation in the repor t was

an i n ac cura te estimate.” He expressly rec onsidered this finding in light of Calhoun’s neig hbor’s testimony , and re aff

irmed his ear lier dec ision, stating: “The testimony of the off icer s . . . provides - 9 -Nos. 10-1419, 10-1486

United States v. Rodge rs ample support for the conclusion that the sear ch of the locked bedroom did not occur until afte r the

arr ival of the sea

rch w arr ant.” The district court twice adopted this conc lusion. Whether to believe Michel i n an d t he other two UPSET office rs is a question of

cre dibilit y . “The trial judge ’s maj o r ro l e is the deter mination of fac t, and with experience in fulfilling that role comes expertise.” Anderson v. City of Bessem er City , 470 U.S. 564, 574 (1985). An appellate court, there fore , ordinarily defe rs to a trial court’s fac tual deter minations. This policy of defe renc e is particula

rly strong when a lower court makes a cre dibilit y finding , “for only the trial j udg e can be awa

re of the varia tions in demea nor and tone of voice that bear so heavily o n t h e listener’s understanding of and belief in what is said.” Id. at 575. Three office rs testified that no one enter ed Rodge rs’s room befor e Michelin arr ived with the duly executed war rant. The court below believed tha t testimony . We will not di sturb its determination.

Rodge rs urg es a contra

ry conclusion. He claims that the district court committed

c le a r e r r o r beca use “the documentar

y evidenc e demonstrated the room was sear ched befor e a war rant

arr ived. That documentar y evidenc e was supported by Calho u n , who was adama nt that he hear d office rs in that room prior to the a rrival of a sea rch w arr ant.” Appe llant’s Br . at 9. First, Rodge rs’s interpre tation of Calhoun’s testim o n y is questionable. Calhoun

s tated only that he hear d rustling in the are a of Rodge rs’s room. Contrary to Rodge rs’s cl ai m , Calhoun could not say whether the noises he hear d wer e befor e or afte r the war rant arr ived. I ndeed, he testified that the sounds came from the are a of Rodge rs’s room afte r office rs closed his daug hter’s

room. This is consistent with Michelin’s claim that, afte r he arr ived with the war rant, office rs closed a door to “ damper

down the sound of [Calhoun] ,” who ha d become “loud and boisterous.” - 10 -Nos. 10-1419, 10-1486

United States v. Rodge rs

But, fac tual quibbles aside, Rodge rs’s arg ument is unavailing

. The distr i ct co u rt fac ed two conflicting acc ounts. I t chose to acc ept one, rathe r than the other. “B eca use the District Court was in the best position to judge cre di b i l i ty , and beca use that Court plausibly resolved the discrepa ncies in the testimony , its fi n d i n gs o f fac t should not be disturbed.” United States v. Bradshaw , 102 F.3d 204, 210 (6th Cir. 1 9 9 6 ). T h e court below did not err in deny ing Rodge rs’s motion to s uppress. I I I

Under Fe dera l Rule of Criminal Procedur e 29, “the court on the defe ndant’s motion

must enter a judgme nt of acquittal of any offe nse for which the evidenc e is insufficient to sustain a conviction. The court may [also] on its own consider whether the evidenc e is insufficient to sustain

a conviction.” Fe d. R. Crim. P. 29(a)

. I f a defe ndant fails to move for a judgme nt of acquittal in the district court, and the district court does not g rant a judgme nt of acquittal sua sponte , our revie w is

narr owly circ umscribed. We are “limited to deter mining whether there was a manifest miscarr iag e of justice. A miscarr iag e of justice exis ts only if the rec ord is devoid of evidenc e pointing to g uilt.” United States v. Jordan , 544 F.3d 656, 670 (6th Cir. 2008) (quoting United States v. Price , 134 F.3d 340, 350 (6th Cir. 1998)). Be cause Rodge rs did not move for a judgme nt of acquittal below, he must meet this high standa

rd to succe ed on his sufficie ncy -of- the-e vidence claim. Ro d g e r s f a il s . T h e r ecor d is reple te with, not devoid of, evidenc e pointing to his g uilt. Micheli n and other UPSET office rs identified Rodge rs as the source for eac h of Michelin’s underc over drug pu rc h as es. Offic ers also found the cash Michelin had used for two separ ate underc over transac tions in Rodge rs’s possession. Fur ther, King testified that Rodge rs supplied him - 11 -Nos. 10-1419, 10-1486

United States v. Rodge rs with drug s to deal to others, and Abbott testif i ed that she saw Rodge rs make—or made for Rodge rs—ar ound one hundred deliverie s of cr ack c ocaine , eac h involving a minimum of one-ha lf g ram, including the August 18 delivery to King for Michelin. Finally , Ag ent Driscoll opined t hat the $12,900 in the I shpeming room would have purcha sed around 129 g rams of cra ck coca ine in the Upper Peninsula of Michig an. This testimony all points to t he ver

y conclusion the jury drew : tha t Rodge rs took part in a drug traff icking enter

prise, involving more than fifty g rams of cra ck coca ine. There was no miscar

riag e of justice. I n response , Rodge rs arg ues that the evidenc e did not show any connec tion betwee n him and a conspirac y to distribute more than f ifty g rams of cra ck cocaine. First, he sug g ests that Abbott, the only “ey ewitness that [si c] links [hi m ] t o m o re than fifty g rams of cra ck coca ine,” Appellant’s Br. at 1 2 , is unreliable beca use she had a tumultuous romantic relationship with him, and said she would rathe r see him in prison than wi t h an o t her woman. Ibid. Be cause this court should disreg ard Abbott’s testimony , Rodge rs arg ues, t he only evidenc e li nking him to more than 16.5 g ra m s o f cra ck coca ine is Ag ent Colli ns’s specula tion that the amount of money found in I shpeming would buy around 129 g rams of cra ck. Rodge rs urg es that such specula tion is too tenuous to support a judgme nt of conviction for conspirac y to distribute fifty g rams or more of cra ck coca ine.

This arg ument is unavailing

. Testimony from the UPSET office rs, Abbott, and King links Rodge rs to amounts of cra ck cocai n e we l l i n excess of fifty g rams. Whether Abbott was a 2

Abbott’s testimony alone—that she saw Rodge rs com p lete, or helped him complete, around 2 one hundre d transac tions, invol ving a m inimum of one-half gra m of cr ack- coca ine—would likely suffice under the manifest-misca rriag e-of -justice standa

rd. - 12 -Nos. 10-1419, 10-1486

United States v. Rodge rs reliable witness in light of her rela tionship with Rodge rs is a question of cre dibilit y . At this posture, the panel simply does not consider such iss u es . S ee Uni ted St ates v. Gardner , 488 F.3d 700, 710 (6th Cir. 2007) (holding , under more lenient standard applicable to defe ndants who moved for relief under Rule 29: “When deciding whether any rational trier of fa ct could have found the essential elements of the crime, this court does not weig h the evidenc e, consider the cre dibilit y of witnesses,

or substitut e its judgme nt for that of the jury .”). Thus, Colli ns’s testimony about the amount of cra ck

coca ine the money found in I shpeming would buy is not the only evidenc e supporting his conviction. The other witnesses’ testimony amply shows that Rodge rs conspired to distribute larg e amounts of

cra ck coca ine. Rodge rs’s conviction, we hold, was not a manifest miscarr iag e of justice. We aff

irm. I V The retroa ctivity of leg islation is a matter of statutory interpre tation, which this court revie ws de novo . Roberts v. Hamer , 655 F.3d 578, 582 (6th Cir. 2011); Singleton v. Smith , 241 F.3d 534, 538 (6 t h Cir. 2001). We, along with ever y other circuit court to addre ss the i ssue, have held that the Fa ir Sentencing Act does not apply retroa ctively

. United States v. Carradine , 621 F.3d 575, 3 5 8 0 (6t h Cir. 2010). See also United States v. Goncalve s , 642 F.3d 245, 253 n.8 (1st C i r. 2 0 1 1 ); United States v. Diaz , 627 F.3d 930, 931 (2d Cir. 2010) (per curia m); United States v. Patillo , 403 F. App’x 761, 767 (3d Cir. 2010); United States v. Pearson , 415 F. App’x 479, 479 (4th Cir. 2011)

The Supreme Court rec ently gra n t ed p eti tions for writs of cer tiorari in two now- 3 consolidated c ases, pr esenting the question whethe r the Fair Sentenc ing A ct applies to def endants who committed crimes before the Act’s eff ective date, but wer e sentenc ed after the Act took eff ect. Dorsey v. Uni t ed S t a t es , No. 11-5683 (2011); Hill v. United States , No. 11-5721 (2011). This scen a r io d if f e r s f r o m Ro d g e rs’s, since Rodge rs committed his crime and rec eived his sentenc e before the Act took ef

fec t. - 13 -Nos. 10-1419, 10-1486

United States v. Rodge rs (per curia m); United States v. Doggins , 633 F.3d 379, 384 (5th Cir. 2011); United States v. Bell , 624 F.3d 803, 814–15 (7th Cir. 2010); United States v. Brewer , 624 F.3d 900, 909 n.7 (8th Cir. 2010); United States v. Baptist , 646 F.3d 1225, 1227–28 (9th Cir. 2011) (per curia m); United States v. Lewis , 625 F.3d 1224, 1228 (10th Cir. 2010); United St ates v. Gomes , 621 F.3d 1343, 1346 (11th Cir. 2010). Rodge rs admits as much, but arg ues for a contra ry conclusion to prese rve the arg ument. Appellant’s Br. at 13 n.2. We adher e t o Ca r r a d ine , and hold that Rodge rs i s not entitled to relief based on r etroa ctive application of the Fa ir Sentencing Act. Carradine , 621 F.3d a t 580. V Neither Rodge rs’s suppression claim, nor his sufficie ncy -of- the-e vidence claim, nor his Fair Sente ncing Act cla im is t enable . We AF FI RM.

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