Opinion
No. 10-2284.
Submitted: February 15, 2011.
Filed: March 21, 2011.
Appeal from the United States District Court for the Northern District of Iowa.
Patrick J. Reinert, Assistant U.S. Attorney, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff-Appellee.
Raphael M. Scheetz, Cedar Rapids, IA for Defendants-Appellant.
Charles Earl Wright, Big Spring, TX, pro se.
Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
[UNPUBLISHED]
Charles Earl Wright was charged in a four-count indictment with distributing and possessing with intent to distribute cocaine base (crack cocaine) in the summer and fall of 2006. He pleaded guilty to count 4, possession with intent to distribute 134.59 grams of cocaine base, and the government dismissed three other counts charging distribution of lesser quantities. At the May 2010 sentencing, the district court determined an advisory guidelines sentencing range of 121-151 months in prison, granted Wright's motion for a one-month downward variance based upon his favorable post-offense conduct prior to the December 2009 indictment, and imposed the 120-month minimum sentence mandated by 21 U.S.C. § 841(b)(1)(A)(iii) (2006). Wright filed a timely notice of appeal.
The Honorable Linda R. Reade, Chief Judge of the United States District Court for the Northern District of Iowa.
With the appeal pending, Congress enacted the Fair Sentencing Act of 2010 (FSA), which increased the amount of crack necessary to trigger a mandatory ten-year sentence from 50 to 280 grams. Pub.L. No. 111-220, § 2(a)(1), 124 Stat. 2372 (Aug. 3, 2010), codified at 21 U.S.C. § 841(b)(1)(A)(iii). Wright argues that the FSA should apply to cases pending on appeal when it was enacted because that is the "general rule" and is consistent with the FSA's stated purpose, "To restore fairness to Federal cocaine sentencing." However, the contention is contrary to this court's prior decisions concluding that Congress did not "expressly provide" that the FSA's amended criminal penalties are exempt from the general savings statute, 1 U.S.C. § 109. United States v. Smith, 632 F.3d 1043, 1047-49 (8th Cir. 2011). As these decisions are controlling, the judgment of the district court must be affirmed.