Brown v. United States of America

Filing 37

ORDER denying 35 Motion Pursuant to Fed.R.Civ.P. 60(b), (5) and (6). Signed by U. S. District Judge Lawrence L. Piersol on 03/04/14. (Attachments: # 1 Doc. 2070 from CR07-40055, # 2 Doc. 2072 from CR07-40055, # 3 Doc. 2076 from CR07-40055) (CMS)

Case 4:07-cr-40055-LLP Document 2072 Filed 12/23113 Page 1 of 3 PagelD #: 9632

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

........................: ..................
UNITED STATES OF AMERICA,
Plaintiff.
-vs-

FILED
DEC 23 2013
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CR 07-40055-26

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*
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MEMORANDUM OPINION AND
ORDER DENYING
RULE 60(b) MOTION

.

ClfR)

'"
'"

TYLER BROWN,

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Defendant.

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"'*'" "'''' "''''*** "'**"'''''''''' *"'''''''''' "''''''''''''''''''' "''''''''''''' "'''' "''''''''''''''''* "'*"'*"''''*'''
Pending before the Court is defendant Tyler Brown's motion for a reduced sentence pursuant
to Federal Rule ofCivil Procedure 60(b).1 Defendant asks the Court to reduce his sentence :from 120
months to 60 months which is the Fair Sentencing Act's new mandatory minimum for the amount of
drugs attnbuted to Defendant. For the reasons set forth below, Defendant's motion will be denied.

On April 2, 2010, Defendant was sentenced by this Court after a jury found him guilty of

conspiring to distnbute a controlled substance, cocaine base (crack cocaine), in violation of21 U.S.C.
§§ 841(a)(1) and 846. Defendant's total offense level was 30. With a criminal history category of

IV, Defendant's advisory guideline range for crack cocaine was 135 to 168 months. The government
stated that they had no objection to a reasonable downward variance in keeping with the
Administration's position that the sentencing disparity between crack cocaine and powder cocaine
should be eliminated. Accordingly, the Court applied the sentencing guidelines for powder cocaine,
resulting in an offense level of 18 and a guideline range of 41 to 51 months. Because Defendant's
offense involved 50 grams or more of cocaine base, he faced a statutory mandatory minimum
sentence of 120 months. The Court found that the mandatory minimum sentence was applicable and
sentenced Defendant to 120 months. See United States v. Williams, 474 F.3d 1130, 1131 (8th Cir.
2007) (Supreme Court's decision in United States v. Booker, 542 U.S. 220 (2005), which declared
IDefendant fails to cite any authority indicating that Rule 6O(b) ofthe Federal Rules of Civil
Procedure provides a basis for relief from a judgment in a criminal case. Even if Rule 6O(b) were
applicable, Defendant is not entitled to relief.

Case 4:07-cr-40055-LLP Document 2072 Filed 12/23/13 Page 2 of 3 PagelD #: 9633

the sentencing guidelines were effectively advisory and directed courts to fashion sentences in
accordance with § 3553(a), "does not expand the district court's authority to impose a sentence
below a statutory minimum"). On April 9, 2010, Defendant appealed his sentence to the Eighth
Circuit.
On August 3, 2010, while Defendant's case was on direct appeal, the Fair Sentencing Act

(FSA) was enacted. The FSA reduced the crack-to-powder sentencing ratio from 100-to-l to
18-t0-1 by increasing the drug amounts triggering mandatory minimum sentences for crack cocaine
offenses. See Dorsey v. United States, 132 S.Ct. 2321,2329 (2012). The Eighth Circuit issued its
opinion in Defendant's appeal on October 12, 2010, holding in relevant part that the FSA is not
retroactive and thus the FSA's reduced mandatory minimum sentence did not apply to Defendant.
See United States v. Brown, 2010 WL 3958760 at *1 (8th Cir. Oct. 12,2010) (unpublished) (the Fair

Sentencing Act contains no express language that it is retroactive, so ''the statutory minimum existing
at the time the offense was committed governs"). In the Dorsey decision issued on June 21, 2012,
the Supreme Court held that the more lenient mandatory minimums in the FSA apply to those
offenders whose crimes occurred before the effective date of the Act, but who were sentenced after
that date. Dorsey, 132 S.Ct. at 2355. Defendant argues that although he was sentenced before the
FSA became law and therefore does not fit within Dorsey's narrow holding that the new mandatory
minimums apply only to persons sentenced after the effective date ofthe FSA, the FSA should apply
to him because his case was on direct appeal when the FSA became effective on August 3,2010.
There is no authority for this proposition. As the Supreme Court recognized in Dorsey, "application
ofthe new minimums to pre-Act offenders sentenced after August 3 will create... disparities"between
''pre-Act offenders sentenced before August 3 and those sentenced after that date." Dorsey, 132
S.Ct. at 2335. These disparities, the Supreme Court reasoned, ''reflect[ ] a line-drawing effort" and
''will exist whenever Congress enacts a new law changing sentences (unless Congress intends reopening sentencing proceedings concluded prior to a new taw's effective date)." Id. After Dorsey,

2

Case 4:07-cr-40055-LLP Document 2072 Filed 12/23/13 Page 3 of 3 PagelD #: 9634

the Eighth Circuit held that the FSA does not apply retroactively to defendants who were sentenced
before August 3, 2010. 2 United States v. Reeves, 717 F.3d 647 (8th Cir. 2013).

There is no indication that Congress intended the more lenient mandatory minimums to apply
to defendants whose sentences were on direct appeal at the time the FSA became effective. and the
binding precedent ofthe Eighth Circuit holds that the statutory minimum sentence existing at the time
Defendant committed the offense applies. Defendant's 120-month sentence was the minimum
required by statute at the time he was sentenced. Accordingly,

IT IS ORDERED that Defendant Tyler Brown's Rule 60(b) motion requesting a
sentence modification (Docket 2070) is denied.
Dated this 23rd day of December, 2013.
BY THE COURT:

~,Ukt.l~

L ence L. Piersol
United States District Judge
ATTEST:
JOSEPI;{ HAAS, ~ERK ,

BY:

GirD, _~~

~

DEUTY

2Defendant cites a Sixth Circuit case where, despite Supreme Court precedent, adivided panel
held that the FSA applies retroactively to defendants sentenced before August 3, 201 0 who sought
reductions in their sentences under 18 U.S.C. § 3582(c) because the sentences imposed under the old
crack to powder cocaine ratios were racially discriminatory in violation of the Equal Protection
Clause. See United States v. Blewett, 719 F.3d 482, 492-94 (6th Cir. 2013). The Sixth Circuit vacated
the panel opinion and heard the Ble-wett case en bane. The en bane Court recently held that the FSA's
mandatory minimums do not apply retroactively to those sentenced before its enactment. See United
States v. Blewett, 2013 WL 6231727 (6th Cir. Dec. 3,2013). Thus, Blewett is ofno help to Defendant.
3