05-5213-cr USA v. Samas
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Submitted: August 11, 2008 Decided: March 24, 2009) 9 10 Docket No. 05-5213-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 05-5213-cr 19 20 ROCKY SAMAS, 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x
25 Present: JACOBS, Chief Judge, WESLEY and HALL, 26 Circuit Judges. 27 28 Defendant-Appellant Rocky Samas appeals from a judgment
29 of conviction entered by the United States District Court
30 for the District of Connecticut (Hall, J.) on September 29,
31 2005 . He argues principally that the mandatory sentencing
32 scheme in 21 U.S.C. § 841(b) violates the Equal Protection
33 Clause of the Fourteenth Amendment because there is no
34 rational basis for the disparity between sentences for
35 powder and crack cocaine, and that the introductory language 1 in 18 U.S.C. § 3553(a) conflicts with the mandatory
2 sentencing provisions set forth in § 841(b) . For the
3 following reasons, we affirm.
4 Charles F. Willson, Nevins & 5 Nevins LLP, East Hartford, CT, 6 for Defendant-Appellant. 7 8 William J. Nardini, Assistant 9 United States Attorney, and 10 Sandra S. Glover, Assistant 11 United States Attorney (of 12 counsel), for Nora R. Dannehy, 13 Acting United States Attorney 14 for the District of Connecticut, 15 for Appellee. 16 17 PER CURIAM1 : 18 19 Rocky Samas appeals from a judgment of conviction
20 entered by the United States District Court for the District
21 of Connecticut (Hall, J.) on September 29, 2005. He argues
22 principally that (1) the mandatory sentencing scheme in 21
23 U.S.C. § 841(b) violates the Equal Protection Clause of the
24 Fourteenth Amendment because there is no rational basis for
25 the disparity between sentences for powder and crack cocaine
26 and (2) that the introductory language in 18 U.S.C.
27 § 3553(a) conflicts with the mandatory sentencing provisions
1 We originally affirmed by summary order issued December 9, 2008. Upon motion of the government, we now withdraw that order and publish this decision in its place.
2 1 set forth in § 841(b). For the following reasons, we
2 affirm.
4 I
5 In January 2004, members of the Norwalk Police
6 Department learned from a confidential informant that a man
7 named Rocky Samas was selling large quantities of crack
8 cocaine in the greater Norwalk area. The confidential
9 informant arranged to purchase crack cocaine from Samas at
10 Samas’ residence on January 6, 7, and 8, 2004. The first
11 transaction involved 13.5 grams of crack cocaine; the second
12 27.3 grams; and the third 54.6 grams. Thereafter, FBI
13 agents and police officers searched the homes of Samas and
14 an associate and discovered drugs, cash, and guns connected
15 with Samas’ narcotics business.
16 In November 2004, Samas pleaded guilty to two counts of
17 possession with intent to distribute and distribution of
18 five grams or more of cocaine base in violation of 21 U.S.C.
19 §§ 841(a)(1) and (b)(1)(B) (Counts Two and Three); one count
20 of possession with intent to distribute and distribution of
21 fifty grams or more of cocaine base in violation of 21
22 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Four); and one
3 1 count of possession with intent to distribute and
2 distribution of 500 grams or more of cocaine and five grams
3 or more of cocaine base in violation of 21 U.S.C.
4 §§ 841(a)(1) and (b)(1)(B) (Count Five).
5 Samas was sentenced principally to the mandatory
6 minimum term of 240 months’ imprisonment on Count Four, and
7 to concurrent sentences of 151 months on Counts Two, Three,
8 and Five.
9 Samas raised no objections at his sentencing.
10 Accordingly, we review his claims for plain error.
12 II
13 Samas argues that the mandatory sentencing scheme in 21
14 U.S.C. § 841(b) violates the Equal Protection Clause of the
15 Fourteenth Amendment because there is no rational basis for
16 the disparity between sentences for powder and crack
17 cocaine. We have repeatedly rejected this argument. See
18 United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir.
19 2008) (per curiam); United States v. Moore, 54 F.3d 92, 97-
20 99 (2d Cir. 1995); United States v. Then, 56 F.3d 464, 466
21 (2d Cir. 1995); United States v. Stevens, 19 F.3d 93, 96-97
22 (2d Cir. 1994).
4 1 Samas contends that the Supreme Court’s recent decision
2 in Kimbrough v. United States, 128 S. Ct. 558 (2007), casts
3 doubt on the continued validity of the 100-to-1 powder to
4 crack cocaine ratio. We disagree. Nothing in Kimbrough
5 suggests that the powder to crack cocaine disparity in
6 § 841(b)is unconstitutional. See United States v. Lee, 523
7 F.3d 104, 106 (2d Cir. 2008) (stating in dicta that “[i]t is
8 not apparent to us that the principles set forth in
9 Kimbrough have any application to mandatory minimum
10 sentences imposed by statute”).
11 The Kimbrough Court explained that the federal
12 narcotics “statute, by its terms, mandates only maximum and
13 minimum sentences . . . . The statute says nothing about
14 the appropriate sentences within these brackets . . . .”
15 128 S. Ct. at 571. Thus Kimbrough bears upon the discretion
16 of district judges to sentence within the maximum and
17 minimum sentence “brackets.” Kimbrough does not disturb our
18 precedents rejecting challenges to the constitutionality of
19 the mandatory sentencing scheme in § 841(b).
5 1 III
2 Samas contends that the parsimony clause in 18 U.S.C.
3 § 3553(a) conflicts with the mandatory sentencing provisions
4 in § 841(b). In relevant part, § 3553(a) directs district
5 courts to “impose a sentence sufficient, but not greater
6 than necessary, to comply with the purposes set forth in
7 paragraph (2) of this subsection.” The balancing required
8 under this provision, Samas contends, is incompatible with a
9 mandatory sentencing scheme.
10 We recently rejected the argument that § 3553(a)
11 conflicts with statutory minimum sentences in reviewing a
12 sentence applying the firearms enhancement in 18 U.S.C.
13 § 924(c). As we held in United States v. Chavez, a district
14 court must impose a statutorily mandated sentence even if
15 the court would reach a different determination if it
16 considered only § 3553(a). 549 F.3d 119, 135 (2d Cir.
17 2008). We explained that statutory minimum sentences are in
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05-5213-cr USA v. Samas
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Submitted: August 11, 2008 Decided: March 24, 2009) 9 10 Docket No. 05-5213-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 05-5213-cr 19 20 ROCKY SAMAS, 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x
25 Present: JACOBS, Chief Judge, WESLEY and HALL, 26 Circuit Judges. 27 28 Defendant-Appellant Rocky Samas appeals from a judgment
29 of conviction entered by the United States District Court
30 for the District of Connecticut (Hall, J.) on September 29,
31 2005 . He argues principally that the mandatory sentencing
32 scheme in 21 U.S.C. § 841(b) violates the Equal Protection
33 Clause of the Fourteenth Amendment because there is no
34 rational basis for the disparity between sentences for
35 powder and crack cocaine, and that the introductory language 1 in 18 U.S.C. § 3553(a) conflicts with the mandatory
2 sentencing provisions set forth in § 841(b) . For the
3 following reasons, we affirm.
4 Charles F. Willson, Nevins & 5 Nevins LLP, East Hartford, CT, 6 for Defendant-Appellant. 7 8 William J. Nardini, Assistant 9 United States Attorney, and 10 Sandra S. Glover, Assistant 11 United States Attorney (of 12 counsel), for Nora R. Dannehy, 13 Acting United States Attorney 14 for the District of Connecticut, 15 for Appellee. 16 17 PER CURIAM1 : 18 19 Rocky Samas appeals from a judgment of conviction
20 entered by the United States District Court for the District
21 of Connecticut (Hall, J.) on September 29, 2005. He argues
22 principally that (1) the mandatory sentencing scheme in 21
23 U.S.C. § 841(b) violates the Equal Protection Clause of the
24 Fourteenth Amendment because there is no rational basis for
25 the disparity between sentences for powder and crack cocaine
26 and (2) that the introductory language in 18 U.S.C.
27 § 3553(a) conflicts with the mandatory sentencing provisions
1 We originally affirmed by summary order issued December 9, 2008. Upon motion of the government, we now withdraw that order and publish this decision in its place.
2 1 set forth in § 841(b). For the following reasons, we
2 affirm.
4 I
5 In January 2004, members of the Norwalk Police
6 Department learned from a confidential informant that a man
7 named Rocky Samas was selling large quantities of crack
8 cocaine in the greater Norwalk area. The confidential
9 informant arranged to purchase crack cocaine from Samas at
10 Samas’ residence on January 6, 7, and 8, 2004. The first
11 transaction involved 13.5 grams of crack cocaine; the second
12 27.3 grams; and the third 54.6 grams. Thereafter, FBI
13 agents and police officers searched the homes of Samas and
14 an associate and discovered drugs, cash, and guns connected
15 with Samas’ narcotics business.
16 In November 2004, Samas pleaded guilty to two counts of
17 possession with intent to distribute and distribution of
18 five grams or more of cocaine base in violation of 21 U.S.C.
19 §§ 841(a)(1) and (b)(1)(B) (Counts Two and Three); one count
20 of possession with intent to distribute and distribution of
21 fifty grams or more of cocaine base in violation of 21
22 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Four); and one
3 1 count of possession with intent to distribute and
2 distribution of 500 grams or more of cocaine and five grams
3 or more of cocaine base in violation of 21 U.S.C.
4 §§ 841(a)(1) and (b)(1)(B) (Count Five).
5 Samas was sentenced principally to the mandatory
6 minimum term of 240 months’ imprisonment on Count Four, and
7 to concurrent sentences of 151 months on Counts Two, Three,
8 and Five.
9 Samas raised no objections at his sentencing.
10 Accordingly, we review his claims for plain error.
12 II
13 Samas argues that the mandatory sentencing scheme in 21
14 U.S.C. § 841(b) violates the Equal Protection Clause of the
15 Fourteenth Amendment because there is no rational basis for
16 the disparity between sentences for powder and crack
17 cocaine. We have repeatedly rejected this argument. See
18 United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir.
19 2008) (per curiam); United States v. Moore, 54 F.3d 92, 97-
20 99 (2d Cir. 1995); United States v. Then, 56 F.3d 464, 466
21 (2d Cir. 1995); United States v. Stevens, 19 F.3d 93, 96-97
22 (2d Cir. 1994).
4 1 Samas contends that the Supreme Court’s recent decision
2 in Kimbrough v. United States, 128 S. Ct. 558 (2007), casts
3 doubt on the continued validity of the 100-to-1 powder to
4 crack cocaine ratio. We disagree. Nothing in Kimbrough
5 suggests that the powder to crack cocaine disparity in
6 § 841(b)is unconstitutional. See United States v. Lee, 523
7 F.3d 104, 106 (2d Cir. 2008) (stating in dicta that “[i]t is
8 not apparent to us that the principles set forth in
9 Kimbrough have any application to mandatory minimum
10 sentences imposed by statute”).
11 The Kimbrough Court explained that the federal
12 narcotics “statute, by its terms, mandates only maximum and
13 minimum sentences . . . . The statute says nothing about
14 the appropriate sentences within these brackets . . . .”
15 128 S. Ct. at 571. Thus Kimbrough bears upon the discretion
16 of district judges to sentence within the maximum and
17 minimum sentence “brackets.” Kimbrough does not disturb our
18 precedents rejecting challenges to the constitutionality of
19 the mandatory sentencing scheme in § 841(b).
5 1 III
2 Samas contends that the parsimony clause in 18 U.S.C.
3 § 3553(a) conflicts with the mandatory sentencing provisions
4 in § 841(b). In relevant part, § 3553(a) directs district
5 courts to “impose a sentence sufficient, but not greater
6 than necessary, to comply with the purposes set forth in
7 paragraph (2) of this subsection.” The balancing required
8 under this provision, Samas contends, is incompatible with a
9 mandatory sentencing scheme.
10 We recently rejected the argument that § 3553(a)
11 conflicts with statutory minimum sentences in reviewing a
12 sentence applying the firearms enhancement in 18 U.S.C.
13 § 924(c). As we held in United States v. Chavez, a district
14 court must impose a statutorily mandated sentence even if
15 the court would reach a different determination if it
16 considered only § 3553(a). 549 F.3d 119, 135 (2d Cir.
17 2008). We explained that statutory minimum sentences are in
18 “‘tension with section 3553(a), but that very general
19 statute cannot be understood to authorize courts to sentence
20 below minimums specifically prescribed by Congress . . . .’”
21 Id. (quoting United States v. Roberson, 474 F.3d 432, 436
22 (7th Cir. 2007)); see also United States v. Franklin, 499
6 1 F.3d 578, 585 (6th Cir. 2007) (rejecting argument that
2 mandatory sentences conflict with parsimony clause, because
3 Ҥ 3553(a) factors do not apply to congressionally mandated
4 sentences”). We reach the same conclusion with respect to
5 mandatory sentences imposed under § 841(b).
6 The wording of § 3553(a) is not inconsistent with a
7 sentencing floor. The introductory language of the federal
8 sentencing scheme is qualified: “[e]xcept as otherwise
9 specifically provided, a defendant who has been found guilty
10 of an offense described in any Federal statute . . . shall
11 be sentenced in accordance with the provisions of this
12 chapter so as to achieve the purposes set forth in
13 subparagraphs (A) through (D) of section 3553(a)(2) . . . .”
14 18 U.S.C. § 3551(a) (emphasis added). In this case,
15 § 841(b)(1)(A) specifically provides for a mandatory minimum
16 sentence of twenty years. See United States v. Kellum, 356
17 F.3d 285, 289 (3d Cir. 2004) (“[T]he mandatory minimum
18 sentence[] Kellum was exposed to pursuant to . . . 21 U.S.C.
19 § 841(b)(1)(A) clearly fit within the ‘except as otherwise
20 specifically provided’ exclusion of § 3551(a).” (footnotes
21 omitted)).
7 1 Further, § 3553(e) and § 3553(f) enumerate limited
2 circumstances in which a district court may depart from a
3 statutory minimum sentence. See Franklin, 499 F.3d at 585
4 (holding that § 3553(e) and § 3553(f) are sole provisions
5 permitting departure from a mandatory minimum sentence);
6 Kellum, 356 F.3d at 289 (same). These provisions would be
7 surplusage if we adopted Samas’ interpretation of § 3553(a).
8 Accordingly, we reject Samas’ effort to avoid the
9 mandatory minimum sentence in § 841(b)(1)(A).
11 IV
12 Samas’ final argument is that we should remand to the
13 district court for resentencing on Counts Two, Three, and
14 Five pursuant to Regalado, 518 F.3d at 149. Samas is
15 concerned that the district court might not have appreciated
16 its discretion to depart from the sentencing guidelines
17 based on the powder to crack cocaine disparity. Even if the
18 district court erroneously imposed sentences of 151 months
19 on Counts Two, Three, and Five, Samas cannot show (as he
20 must for plain error review) that the error affected his
21 substantial rights, because those sentences are to run
22 concurrently with the mandatory minimum sentence of 240
8 1 months on Count Four. See United States v. Outen, 286 F.3d
2 622, 640 (2d Cir. 2002) (“[A]n erroneous sentence on one
3 count of a multiple-count conviction does not affect
4 substantial rights where the total term of imprisonment
5 remains unaffected . . . .”); see also United States v.
6 Ogman, 535 F.3d 108, 111 (2d Cir. 2008) (denying Regalado
7 remand because sentence was driven by guideline provision
8 unrelated to powder to crack cocaine ratio in guidelines).
10 CONCLUSION
11 For the foregoing reasons, the judgment of the district
12 court is affirmed.