United States v. Clement

Full title: UNITED STATES of America, Plaintiff–Appellee, v. Orlando CLEMENT, aka Rab…

Court: United States Court of Appeals, Ninth Circuit.

Date published: Jul 22, 2013

723 F.3d 1028 (9th Cir. 2013)

Opinion

No. 12–50189.

2013-07-22

UNITED STATES of America, Plaintiff–Appellee, v. Orlando CLEMENT, aka Rab, aka Seal C, Defendant–Appellant.

Davina T. Chen, Deputy Federal Public Defender, Federal Public Defender's Office,Los Angeles, CA, for Defendant–Appellant. Jean–Claude Andre and Curtis A. Kin, Assistant United States Attorneys, Office of the United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.

PER CURIAM:

Davina T. Chen, Deputy Federal Public Defender, Federal Public Defender's Office,Los Angeles, CA, for Defendant–Appellant. Jean–Claude Andre and Curtis A. Kin, Assistant United States Attorneys, Office of the United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.
Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:05–cr–00814–GAF–3.
Before: ALEX KOZINSKI, Chief Judge, WILLIAM C. CANBY, JR. and RICHARD C. TALLMAN, Circuit Judges.

OPINION

PER CURIAM:

A review of the record indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard). Appellant's claims are foreclosed by United States v. Augustine, 712 F.3d 1290 (9th Cir.2013). Accordingly, appellee's motion for summary affirmance is granted.

Appellant's petition for initial hearing en banc is denied without prejudice to renewal as a petition for rehearing en banc. In United States v. Augustine, this court held that mandatory minimums in the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111–220, 124 Stat. 2372, did not apply in 18 U.S.C. § 3582(c)(2) proceedings to defendants sentenced before the FSA was enacted. Id. at 1295. Since United States v. Augustine was decided, an inter-circuit split has emerged. See United States v. Blewett, Nos. 12–5226, 12–5582, 719 F.3d 482, 2013 WL 2121945 (6th Cir. May 17, 2013) (holding defendants sentenced prior to the enactment of the FSA are entitled to reductions).

AFFIRMED.

The panel unanimously concludes this case is suitable for decision without oral argument. SeeFed. R.App. P. 34(a)(2).