Mosby v. United States of America

Filing 2

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Mosbys motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DISMISSED. An Order of Dismissal will be filed with this Memorandum and Order. 1 Signed by District Judge Henry E. Autrey on 9/14/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AUSTIN MOSBY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12CV1628 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Austin Mosby’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255. Movant, who was sentenced for
distribution of crack cocaine before the Fair Sentencing Act of 2010 (the “FSA”) was
enacted, seeks to reduce his sentence pursuant to Dorsey v. United States, 132 S. Ct.
2321 (2012). The motion will be summarily dismissed.
Background
On April 27, 2010, movant pled guilty to one count of distribution of five
grams or more of a mixture or substance containing crack cocaine in violation of 21
U.S.C. § 841(a)(1). United States v. Mosby, 4:10CR65 HEA (E.D. Mo.). On July 26,
2010, the Court sentenced movant to sixty months’ imprisonment, based on a total
offense level of twenty-one and a criminal history category of V. Id. Under U.S.S.G
§ 2D1.1, the applicable sentencing range was 70-87 months, and under 21 U.S.C.

§ 841(a)(1), the statutory minimum was five years. The sixty-month sentence
represented a downward variance from the Guidelines.
On August 3, 2010, the FSA took effect. The FSA, among other things,
“increased the drug amounts triggering mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year minimum . . .” Dorsey ,
132 S. Ct. at 2335.
In Dorsey, the Court concluded that the more lenient mandatory minimum
provisions of the FSA apply to defendants who committed a crack cocaine offense
before August 3, 2010, the date the FSA went into effect, but were sentenced after
that date. Id. (“the Fair Sentencing Act’s new minimums apply to all of those
sentenced after August 3, 2010”).
Discussion
In his § 2255 motion, movant argues that although he was sentenced on July
26, 2010, eight days before the FSA went into effect, he should be given the same
benefits as those sentenced after the effective date. Movant argues that because he
was sentenced “a mere 8 days before the FSA was passed . . . [i]t would be
inequitable not to reduce [his] sentence and give him the benefit of this shift in
policy.” Movant further argues that the more lenient sentencing provisions should

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apply to him because his sentence was not final until August 9, 2010, six days after
the FSA went into effect.
Movant’s arguments are without merit. In Dorsey, the Court “recognize[d] that
application of the new minimums to pre-Act offenders sentenced after August 3 will
create a new set of disparities” in relation to those sentenced before August 3, 2010.
Dorsey , 132 S. Ct. at 2335.
But those disparities, reflecting a line-drawing effort, will exist
whenever Congress enacts a new law changing sentences (unless
Congress intends re-opening sentencing proceedings concluded prior to
a new law’s effective date). We have explained how in federal
sentencing the ordinary practice is to apply new penalties to defendants
not yet sentenced, while withholding that change from defendants
already sentenced. And we have explained how, here, continued
application of the old 1986 Drug Act minimums to those pre-Act
offenders sentenced after August 3 would make matters worse. We
consequently conclude that this particular new disparity (between those
pre-Act offenders already sentenced and those not yet sentenced as of
August 3) cannot make a critical difference.
Id. (citations omitted). Thus, movant’s arguments are foreclosed by the reasoning in
Dorsey.
Moreover, several other courts have considered the question as to whether
Congress intended the FSA to apply to defendants who had been sentenced prior to
August 3, 2010, and each court has rejected the proposition. E.g., United States v.
Mouzone, 687 F.3d 207, 221 (4th Cir. 2012) (“[defendant] was sentenced on July 9,

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2010, and the Act applies retroactively only to “offenders whose crimes preceded
August 3, 2010, but who are sentenced after that date.’” (quoting Dorsey)); United
States v. Wormley, 471 F. App’x 837, 839 (10th Cir. 2012) (noting that its precedent
forecloses the argument that “the lower mandatory minimums in the FSA apply
retroactively” to defendants sentenced before the enactment of the FSA and that
Dorsey is “of no assistance in this matter.”); United States v. Davidson, 2012 U.S.
App. LEXIS 14689, 2012 WL 2914495 *1 (3d Cir. July 18, 2012) (“the Fair
Sentencing Act’s change to the statutory penalties for crack cocaine offenses does not
apply retroactively to defendants who committed their crimes and were sentenced
before its enactment.”).
Based on the foregoing, the Court finds that it lacks the authority to reduce
movant’s sentence, and the Court will summarily dismiss this action under 28 U.S.C.
§ 2255, Rule 4.
Finally, movant has failed to demonstrate that jurists of reason would find it
debatable whether he is entitled to a sentence reduction under the circumstances
presented in the motion. Thus, the Court will not issue a certificate of appealability.
28 U.S.C. § 2253(c).
Accordingly,

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IT IS HEREBY ORDERED that Mosby’s motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 is DISMISSED.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 14th day of September, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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