United States v. Merisier

464 F. App'x 27

• Court: Court of Appeals for the Second Circuit
• Decided: March 6, 2012
• Docket: 10-2017-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant Roshawn Merisier appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Garaufis, J.) for conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(l)(A)(iii), and illegally dealing firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). We assume the parties’ familiarity with the facts, procedural history, and issues presented on appeal.

Merisier argues that he should be resentenced with the benefit of the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010) (“FSA”), which reduced the mandatory minimum he faced for one of the crimes to which he pled guilty. At least one panel of this Court has already held that the FSA does not apply retroactively to a defendant in Merisier’s position-one sentenced before the FSA was enacted. See United States v. Acoff, 634 F.3d 200, 202-03 (2d Cir.2011) (per curiam). That opinion accords with every circuit’s decision on the issue. See United States v. Goncalves, 642 F.3d 245, 253-54 (1st Cir.2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.2010); United States v. Bullard,, 645 F.3d 237, 248-49 (4th Cir.2011), United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir.2011) (per curiam); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam).

While mandated by our precedents, nothing inhibits the executive from extending clemency that would bring this sentence in line with the FSA, and on the whole, the panel is of the view that clemency would serve the interests of justice in this case because even though Merisier was sentenced prior to the enactment of the FSA, his appeal was still pending-and thus his conviction was not yet final-at the time the FSA became effective.

Finding no merit in defendant’s remaining arguments, we hereby AFFIRM the judgment of the district court.