United States v. Figueras

531 F. App'x 116

• Court: Court of Appeals for the Second Circuit
• Decided: August 27, 2013
• Docket: 11-146-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant Joshua Figueras pled guilty to possession with intent to distribute 50 or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The parties agreed that Figueras’s relevant conduct included possession of 231 grams of cocaine base and 248 grams of cocaine. The district court sentenced him to 240 months’ imprisonment, believing this to be the mandatory minimum period of incarceration. Figueras appeals, alleging that the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, § 2(a), 124 Stat. 2372, applies retroactively and that he did not possess 280 grams of cocaine base so as to trigger a mandatory minimum sentence of 240 months.

DISCUSSION

Relying on our decision in United States v. Glover, 398 Fed.Appx. 677 (2d Cir.2010) (summary order), the district court held that the FSA did not apply to Figueras, who committed his offense before the FSA was enacted but was sentenced afterward. See also United States v. Acoff, 684 F.3d 200 (2d Cir.2011) (per curiam) (adopting the same conclusion as Glover). In Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2335, 183 L.Ed.2d 250 (2012), the Supreme Court held that the “new, lower mandatory mínimums ... apply to the post-Act sentencing of pre-Act offenders.” This Court recognized that Dorsey abrogated Acoff in United States v. Highsmith, 688 F.3d 74, 77 (2d Cir.2012) (per curiam).

In light of Dorsey and Highsmith, the government moved to vacate Figueras’s sentence and remand for resentencing. Because the FSA applies to Figueras and the mandatory minimum that the district court imposed may not be triggered, the Government’s motion is GRANTED, Figu-eras’s sentence is VACATED, and the case is REMANDED for resentencing. Figueras’s appeal is DISMISSED as moot.