USA v. Antoine Burk

Filing

OPINION filed: AFFIRMED, decision not for publication. Julia Smith Gibbons, Circuit Judge; Jeffrey S. Sutton, (authoring) Circuit Judge and Raymond M. Kethledge, Circuit Judge.

Case: 12-6474

Document: 006111760452

Filed: 07/22/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0675n.06
No. 12-6474
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTOINE BURKS,
Defendant-Appellant.

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Jul 22, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY

Before: GIBBONS, SUTTON and KETHLEDGE, Circuit Judges.

SUTTON, Circuit Judge. In 2005, a jury convicted Antoine Burks of two drug-trafficking
crimes and one firearm crime. These offenses involved a total of 169 grams of crack, an amount that
triggered two 120-month mandatory minimum sentences on the drug-trafficking convictions. But
Burks faced another problem. He had a prior felony drug conviction under 21 U.S.C. § 851,
doubling Burks’s mandatory minimum sentences. The district court imposed the mandatoryminimum sentences of 240 months on the drug offenses and 60 months for the firearm possession
conviction.

Five years later, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124
Stat. 2372, which increased the amount of crack necessary to trigger the 120-month mandatory
minimum from 50 grams to 280 grams. The district court directed the United States Probation

Case: 12-6474

Document: 006111760452

Filed: 07/22/2013

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No. 12-6474
United States v. Burks
Office to make a recommendation about whether Burks’s sentence was subject to modification under
18 U.S.C. § 3582(c)(2) in light of the changes made by the Fair Sentencing Act. The Office
recommended that Burks’s sentence should remain the same. The district court declined to make
an adjustment. Because Burks’s sentence was based on a statutory mandatory minimum as opposed
to a guidelines range, the court explained, it had no authority to modify Burks’s sentence under
§ 3582(c)(2).

Burks challenges this conclusion on appeal. The Fair Sentencing Act, as he sees it, should
be applied retroactively to his sentence, lowering the mandatory minimum sentences for his drug
crimes from 240 months to 120 months. In his view, Dorsey v. United States, 132 S. Ct. 2321
(2012), which applied the Fair Sentencing Act’s new penalties to defendants sentenced after the
Act’s passage, requires courts to extend the Act’s new penalties to defendants sentenced before the
Act’s passage under § 3582(c)(2). That does not follow. We have indeed rejected this argument
before and, consistent with circuit precedent, must do so again. United States v. Hammond, 712 F.3d
333, 335–36 (6th Cir. 2013); see also, e.g., United States v. Mundy, 486 F. App’x 598, 598–99 (6th
Cir. 2012); United States v. Stanley, 500 F. App’x 407, 410 (6th Cir. 2012); cf. United States v.
Carradine, 621 F.3d 575, 580 (6th Cir. 2010).

After the parties filed their appellate briefs, Burks raised another argument. He asked us to
grant him relief based on United States v. Blewett, Nos. 12-5226, 12-5582, 2013 WL 2121945 (6th
Cir. May 17, 2013). This argument suffers from two problems. One, after the briefs were filed and
after the supplemental authority motion was filed invoking Blewett, the en banc Court vacated
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Case: 12-6474

Document: 006111760452

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No. 12-6474
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Blewett. Order Granting Reh’g En Banc July 11, 2013. That leaves us with binding authority in the
form of Hammond and Carradine. We must follow that authority today. Two, even if that were not
the case, Blewett was premised on an argument not raised below—namely that the defendant’s
original sentence violated the Equal Protection Clause. Yet Burks did not make an equal protection
argument in the court below or in his briefs to this Court, forfeiting the argument on appeal. See
Grain v. Trinity Health, Mercy Health Servs. Inc., 551 F.3d 374, 378 (6th Cir. 2008). On top of that,
the argument fails to account for pre-existing (and extant) Sixth Circuit precedent, which rejected
this precise argument. See, e.g., United States v. Williams, 962 F.2d 1218, 1227–28 (6th Cir. 1992);
see also United States v. Reece, 994 F.2d 277, 278–79 (6th Cir. 1993) (per curiam); United States
v. Muse, 250 F. App’x 700, 701–02 (6th Cir. 2007).

For these reasons, we affirm.

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