United States v. Keith Young

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 15, 2019            Decided November 22, 2019

                         No. 18-3048

                       KEITH YOUNG,
                        APPELLANT

                              v.

                UNITED STATES OF AMERICA,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:17-cr-00083-1)


    Stephen C. Leckar, appointed by the court, argued the
    cause and filed the briefs for appellant.

    Elizabeth H. Danello, Assistant U.S. Attorney, argued the
    cause for appellee. With her on the brief were Jesse K. Liu,
    U.S. Attorney, and Elizabeth Trosman, Christopher
    Macchiaroli, and David B. Misler, Assistant U.S.
    Attorneys.
                                2

   Before: HENDERSON and ROGERS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: The
appellant, Keith Young, was sentenced to 240 months in prison
for possessing a heroin mixture exceeding two kilograms based
on the then-applicable statutory minimum contained in 

(b)(1)(A). After the district court pronounced
sentence, the Congress enacted the First Step Act (Act),
narrowing the range of past offenses that trigger
section 841(b)(1)(A)’s mandatory minimum. It is undisputed
that, if this change applies to Young, he is subject to a ten-year,
not twenty-year, mandatory minimum sentence. On appeal,
Young argues that, because his case was still pending on direct
review when the Act was enacted, he should receive the benefit
of the decreased term of imprisonment. We conclude, however,
that a reduced prison term applies only to a defendant whose
sentence had not been “imposed” as of the Act’s enactment
date; accordingly, we reject Young’s argument and affirm his
sentence.

                        I. BACKGROUND

     Young was convicted of possessing a heroin mixture
exceeding two kilograms (count one) and possessing a firearm
as a felon (count two). During the proceedings, the government
filed an information pursuant to 

(a)(1),
indicating that in 1994 Young had pleaded guilty to a state
charge of possession of cocaine with intent to distribute. The
filing triggered the twenty-year statutory minimum then in
effect for the heroin conviction. See 

(b)(1)(A)
(2012), amended by 

, 

            3
5193, 5220–22 (2018). On July 19, 2018 the district court
sentenced Young to the 240-month statutory minimum on
count one and to 36 months in prison on count two, the two
sentences to run concurrently.

     The Act was signed into law on December 21, 2018. It
narrowed the range of past drug convictions that can trigger the
mandatory minimum contained in section 841(b)(1)(A). The
Act replaces “felony drug offense” with “serious drug felony,”
see 

, 132 Stat. at 5220–22 (2018),
which is defined as requiring both “a term of imprisonment of
more than 12 months” and that “the offender’s release from any
term of imprisonment was within 15 years of the
commencement of the instant offense,” 

(57)(A)-(B). The parties agree that Young’s 1994
conviction would not qualify as a “serious drug felony” under
the Act because he was released more than 15 years before he
committed “the instant offense.” Section 401 of the Act,
however, includes a retroactivity provision stating that: “This
section, and the amendments made by this section, shall apply
to any offense that was committed before the date of enactment
of this Act, if a sentence for the offense has not been imposed
as of such date of enactment.” 

(c),
132 Stat. at 5221.

    Young timely appealed his sentence pursuant to 

.

                         II. ANALYSIS

     On direct appeal, Young argues that his sentence should
be vacated and his case remanded for resentencing in light of
the statutory minimum applicable after the enactment of the
First Step Act. The general federal “savings clause” provides
that “[t]he repeal of any statute shall not . . . extinguish any
penalty . . . incurred under such statute, unless the repealing
                                  4
Act shall so expressly provide . . . .” 

 Although
section 109 uses the term “expressly provide,” the United
States Supreme Court has held that the Congress need not use
“magical passwords” and that the savings clause is satisfied so
long as the “courts . . . assure themselves that ordinary
interpretative considerations point clearly in that direction.”
Dorsey v. United States, 

, 274–75 (2012). Young
asks us to apply the common-law principle that the elimination
or reduction of a criminal penalty must be given effect to all
cases on direct review. See Bradley v. United States, 

, 607–08 (1973) (describing the common-law rule). But the
Supreme Court has recognized that 

, if
applicable, abrogates the common-law rule. See Warden v.
Marrero, 

 (1974) (“Congress enacted its first
general saving provision, [section 109], to abolish the
common-law presumption that the repeal of a criminal statute
resulted in the abatement of ‘all prosecutions which had not
reached final disposition in the highest court authorized to
review them.’” (quoting Bradley, 

)). The
viability of Young’s claim thus turns on whether “ordinary
interpretative considerations” indicate that the Congress
intended that section 401 apply to any sentence on direct appeal
if the sentencing occurred before December 21, 2018.

     We review questions of statutory construction de novo. See
United States v. Mosquera-Murillo, 

 (D.C.
Cir. 2018). Section 401 of the Act applies to any sentence for
an offense committed before its enactment “if a sentence for

1
  Although section 401 did not expressly effect a repeal, it did reduce
the penalty applicable to Young’s conduct and so the savings clause
of 

 applies. See Dorsey v. United States, 

 (2012) (“Case law makes clear that the word ‘repeal’ applies
when a new statute simply diminishes the penalties that the older
statute set forth.” (citing Warden v. Marrero, 

, 659–64
(1974))).
                                5
the offense has not been imposed as of such date of enactment.”
132 Stat. at 5221 (emphasis added). If Young’s sentence had
not yet been “imposed” on December 21, 2018, he would have
received the benefit of section 401. Because his sentence was
“imposed” before December 21, 2018, however, section 401
does not apply. Three sister circuits have already considered
this issue and all three have held that section 401 does not apply
to a sentence that was pending on direct appeal after December
21, 2018. See United States v. Aviles, 

, 510 (3d
Cir. 2019); United States v. Wiseman, 

 (6th
Cir. 2019); United States v. Pierson, 

, 927–28 (7th
Cir. 2019); cf. United States v. Means, No. 19-10333, 

, at *4 (11th Cir. Sept. 11, 2019)
(noting, in the context of a motion to modify a term of
imprisonment, that section 401 does “not apply retroactively to
defendants sentenced prior to December 21, 2018”). As the
Seventh Circuit explained, “[i]n common usage in federal
sentencing law, a sentence is ‘imposed’ in the district court,
regardless of later appeals.” Pierson, 

 (citing 

(a) (“The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection.”
(emphasis added)); Fed. R. Crim. P. 32(b) (“The court must
impose sentence without unnecessary delay.” (emphasis
added)); Fed R. Crim. P. 32(a)(2) (1986) (“After imposing
sentence in a case which has gone to trial on a plea of not guilty,
the court shall advise the defendant of the defendant’s right to
appeal . . . . There shall be no duty on the court to advise the
defendant of any right of appeal after sentence is imposed
following a plea of guilty or nolo contendere.” (emphasis
added))) (additional citations omitted).

    Young contends, however, that a sentence is “imposed”
only at the time of final judgment by the highest court
authorized to review it, relying on the Sixth Circuit’s decision
                               6
in United States v. Clark. 

 (6th Cir. 1997),
superseded by regulation on other grounds, U.S.S.G. §
1B1.10(b)(2)(A). In that case, the court considered whether the
then-new “safety valve” provisions enacted as part of the
Mandatory Minimum Sentencing Reform Act (MMSRA)
applied to a sentence handed down by the district court before
the enactment of that legislation but still pending on direct
appeal. The MMSRA provided that the “safety valve”
provisions applied “to all sentences imposed on or after” the
date of enactment. 

(a), 

, 1985–86 (1994) (emphasis added). The court held that
this language meant that the “safety valve” provisions should
be applied to cases pending on direct appeal on the date the
MMSRA was enacted. Clark, 

. It reasoned that
“Congress realized that long mandatory minimum sentences
compel judges to punish the crime instead of the criminal
without respect to the degree of defendant’s culpability,
likelihood of rehabilitation, cooperation with the prosecution
or the fact that the crime is the defendant’s first offense” and
so “[a]pplying the safety valve statute broadly to cases pending
on appeal when the statute was enacted is consistent with the
remedial intent of the statute.” 

 It held that “[t]he initial
sentence has not been finally ‘imposed’ within the meaning of
the safety valve statute because it is the function of the
appellate court to make it final after review or see that the
sentence is changed if in error.” 

 Young argues that, because
the Congress used language in the Act similar to the language
in the MMSRA, it must have intended to adopt Clark’s
construction of “imposed” in enacting the Act.

     Young also points to the purpose of the statute and a canon
of statutory construction to buttress his reading. He suggests
that the rule of lenity and the canon of constitutional doubt
support his reading—the latter because “profound questions
would be raised under principles of due process and equal
                               7
protection (among others) if [he] is denied the benefit of a
statute that otherwise applies directly to him.” Moreover, he
argues that his reading is mandated by the “remedial” purpose
of the statute.

     Young’s reading of the statute is unconvincing. We agree
with the Seventh Circuit that in ordinary usage a sentence is
“imposed” when the district court pronounces it. The Supreme
Court routinely speaks of a district court “impos[ing]” a
sentence. See, e.g., Rita v. United States, 

(2007) (“The judge was fully aware of defendant’s various
physical ailments and imposed a sentence that takes them into
account.” (emphasis added)). So do the courts of appeal. See,
e.g., United States v. Brown, 

 (D.C. Cir.
2008) (“The district court imposed a sentence at the high end
of the Guidelines range based on its consideration of numerous
factors, including Brown’s arrest record.” (emphasis added));
United States v. Jenkins, 

 (1st Cir. 2008) (“The
district court nonetheless imposed a sentence that was more
than five years below the bottom of the Guidelines Range.”
(emphasis added)). The government also points to another
provision of the Federal Rules describing a district court’s act
of sentencing as “impos[ing]” sentence. See Fed. R. Crim. P.
11(d)(2) (defendant may sometimes withdraw guilty plea “after
the court accepts the plea but before it imposes sentence”
(emphasis added)); see also Fed. R. Crim. P. 11(e) (“After the
court imposes sentence, the defendant may not withdraw a plea
of guilty or nolo contendere, and the plea may be set aside only
on direct appeal or collateral attack.” (emphasis added)). In
standard usage, then, a sentence is “imposed” when the district
court passes sentence on a defendant.

    In addition, as the Seventh Circuit observed, Clark’s
understanding of when a sentence is “imposed” has not been
applied by any other circuit. Pierson, 

; see also
                               8
United States v. Pelaez, 

, 1205 n.4 (11th Cir.
1999) (“In making the argument that a sentence is not imposed
for purposes of § 3553(f) until it is affirmed on direct appeal,
Appellant relies principally upon United States v. Clark . . . .
We do not agree with and decline to follow the Sixth Circuit's
holding in Clark.”). Moreover, the Sixth Circuit itself did not
even mention Clark in interpreting the First Step Act earlier
this year. See Wiseman, 

.

     Given the lack of ambiguity, we have no recourse to the
rule of lenity. See Muscarello v. United States, 

,
138–39 (1998) (“To invoke the rule [of lenity], we must
conclude that there is a ‘grievous ambiguity or uncertainty’ in
the statute.” (quoting Staples v. United States, 

,
619 n.17 (1994))). And Young’s sentence does not raise the
constitutional spectre he claims it does. See Dorsey, 

 (“[D]isparities, reflecting a line-drawing effort, will
exist whenever Congress enacts a new law changing
sentences.”). The purpose of a statute, even if remedial, cannot
overcome the plain meaning of the statute’s text. See Baker
Botts L.L.P. v. ASARCO LLC., 

 (2015)
(“Our job is to follow the text even if doing so will supposedly
undercut a basic objective of the statute.” (internal quotation
marks omitted)).

    For the foregoing reasons, the judgment of the district
court is affirmed.

                                                    So ordered.