United States v. James LeBlanc , 428 F. App'x 289 ( 2011 )

Case: 10-30057 Document: 00511502028 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-30057
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMES MARCUS LEBLANC; HOWARD RONALD GUILLORY, SR.,
Defendants - Appellants
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CR-20098-4
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
James Marcus LeBlanc and Howard Ronald Guillory, Sr., appeal their
mandatory minimum sentences, imposed pursuant to 21 U.S.C.
§ 841(b)(1)(A),(B), for their cocaine-distribution and conspiracy convictions. They
contend: their sentences must be vacated; and they must be resentenced under
the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372,
enacted during the pendency of these appeals.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-30057 Document: 00511502028 Page: 2 Date Filed: 06/08/2011
No. 10-30057
Because appellants raise issues based upon legislation enacted post-
sentencing, our review is de novo. See United States v. Salazar, 542 F.3d 139,
144 (5th Cir. 2008) (interpretation of sentencing statute reviewed de novo); see
also United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002) (plain-error
review inapplicable where defendant had no opportunity to object).
FSA, signed into law on 3 August 2010, reset the amount of crack cocaine
required to trigger mandatory-minimum sentences. After appellants filed their
briefs on appeal, our court decided United States v. Doggins, 633 F.3d 379, 384
(5th Cir. 2011), which held: FSA does not apply retroactively; and, because FSA
does not impose a procedural or remedial change, it does not fall within an
exception to the savings statute, 1 U.S.C. § 109 (repeal of penal statute does not
have retroactive effect unless repealing statute expressly so provides).
Doggins forecloses most of appellants’ contentions; to the extent it does
not, the remaining contentions are without merit. Congress directed the
Sentencing Commission to promulgate guidelines, policy statements, or
amendments provided for in FSA “as soon as practicable”, but it did not direct
that any retroactive effect be given. See Pub. L. No. 111-220 § 8. Additionally,
insofar as appellants contend FSA must apply immediately to correct a claimed
equal-protection violation caused by the statute under which they were
sentenced, our court has never recognized such a violation stemming from the
sentencing disparity of the prior law. See, e.g., United States v. Fisher, 22 F.3d
574, 579 & n.21 (5th Cir. 1994) (noting cocaine-base sentencing disparity not
unconstitutional).
AFFIRMED.
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