*1 agency of court and 277, The uniform course argu- this ante at see ready explained, for decades has it clear decisions made reality permitting ignores ment grieve employees cannot probationary removals employees grieve probationary including alleg- disputes, separation violation of allegation of a mere based on statutory rights proce- or evis- violations would rights procedures or and OPM under- Both probation- dures. purpose of the entire cerate over have taken no action this and stand ary program. reality. years change this many these approach fully with agree We having practice settled There is value opinions, as aforementioned outcome especially when practice, settled remain sister circuits. See of our have several every right change that have the bodies Force, Fed. Air Dep’t Yates v. to do so. it have made no move (Fed.Cir.2004) (per cu 57, 58-59 Appx. riam) HHS v. approvingly); (quoting INS V. FLRA, 1278, 1284-85 Cir.
1988) approving II (citing reasons, INS and NTEU hold that foregoing For judgment more were ly). contrary But even to law and proposal was NTEU’s ambivalent, be costs this there would the IRS’s stat- and thus outside regulation differently creating a holding area to pe- The NTEU’s utory duty negotiate. employ give probationary split. circuit To hereby for review is denied. tition rights depending procedural ees different DENIED PETITION they work circuit which on the live.or inequity create confusion would service. See 5 U.S.C.
federal civil 7123(a) of FLRA or (permitting appeals person “in in the circuit
ders business”). Nothing or transacts
resides disregard prac
in law commands practical pe drawbacks
ticality, and America, are substantial. position titioner’s UNITED STATES Plaintiff-Appellee, IV. BLACK, Chuck, Darnell a/k/a prec- Finally, the issue administrative Defendant-Appellant. upholding in favor of
edent counsels nearly upset FLRA. NTEU would have us 13-6228. No. holding FLRA thirty years of decisions Appeals, United States Court per- are not probationary employees Fourth Circuit. grieve regulation mitted under law or See, NFFE, 29, 20 e.g., Local removals. 30, Argued: Oct. 2013. (1985); F.L.R.A. SSA Decided: Dec. (1984). The FLRA 164-65 F.L.R.A. numerous has reasserted See, early e.g.,
times since those decisions. Chapter 66 F.L.R.A.
NTEU NTEU,
(2011); 45 F.L.R.A.
(1992). *2 DuBois,
ARGUED: G. Alan Office of Defender, Public Raleigh, Federal Carolina, North Appellant. Yvonne Watford-McKinney, Victoria Office of the Attorney, Raleigh, United States North Carolina, Appellee. BRIEF: ON McNamara, Thomas P. Federal Public De- fender, Office of 'the Federal Public De- fender, Carolina, Raleigh, North for Ap- Walker, pellant. Thomas G. United States Attorney, May-Parker, P. Jennifer Assis- tant States Office Attorney, Attorney, Raleigh, North Carolina, Appellee. KING, NIEMEYER,
Before
DUNCAN,
Judges.
recommended
Judge
ing,
probation
officer
by published opinion.
Affirmed
84.2
held accountable for
opinion,
wrote
NIEMEYER
grams
cocaine and 26.8
grams
crack
joined.
Judge DUNCAN
Judge KING and
*3
cocaine, yielding, after other ad-
powder
separate concurring
wrote
Judge KING
here,
Sentencing
justments not relevant
opinion.
of 97
121 months’ im-
to
Guidelines
NIEMEYER,
Judge:
underlying drug
prisonment. Because the
January
was sentenced
more than
trafficking
Darnell Black
offense involved
50
cocaine, however,
statutory
minimum
Black
grams
to the
crack
conspiracy
subject
statutory
to
minimum sen-
was
to
imprisonment
months’
imprisonment,
of 120 months’
id.
grams
than 50
of crack
tence
more
traffic
841(b)(1)(A) (2006),
841(b)(1).
§
and therefore his
The
21 U.S.C.
cocaine. See
120 to 121
sentencing range became
Act,
enacted in
Sentencing
which was
Fair
January 23,
imprisonment.
months’
On
years
three
after Black
more than
Black
the
court sentenced
to
district
sentenced,
statutory mini-
reduced the
statutory
the
120 months’ imprisonment,
circum-
applicable to his
mum sentence
minimum.
imprisonment
from 120 months’
to
stances
Black filed
imprisonment.
months’
later,
years
More than three
to
motion under 18 U.S.C.
Sentencing Act of 2010
enacted the Fair
sentence,
modify
contending
his
(“FSA”),
111-220, 124
No.
Stat.
Pub.L.
in the
minimum sentences
Fair
2372, in
to
response
extensive criticism
Sentencing
apply
Act
to him. The
should
disparity
sentences between
about
motion, relying
his
court denied
on
powder
district
cocaine
crack cocaine offenses and
—
States,
v.
decision in United States
offenses. See
2328-29,
Cir.2011),
-,
in which we
Amends. Comments Guidelines, however, explain that ret- Supreme contends that roactive amendments do alter statuto- decision in Dorsey, Court’s while not hold ry imprisonment. minimum terms of See that the FSA to a applies 1(A). 1B1.10, n. U.S.S.G. cmt. proceeding, implies through result reasoning. recognizes Dorsey’s He 18, 2012, On Black filed a mo- October *4 holding persons narrow that sentenced af pursuant tion to his reduce sentence ter of the effective date the for an FSA 3582(c)(2), which allows for a sen- offense committed before the date effective “in of tence reduction the case a defendant should pursuant be sentenced to the FSA. who to a term of im- has been sentenced To that apply holding, he that a reasons prisonment range sentencing based on a 3582(c)(2) proceeding is a sentencing that the subsequently by has lowered been therefore, proceeding, and because his Sentencing Commission.” Black claimed 3582(c)(2) proceeding took place after that the because the FSA had lowered date, the FSA’s effective he should be statutory minimum the for amount FSA, the which estab crack cocaine for which he was accountable lishes a reduced minimum sen from 120 months’ to 60 imprisonment imprisonment tence of months’ for the Sentencing the imprisonment months’ and drugs amount of in involved his crime. had, FSA, as required the sentencing conclusion, reduced recommended To reach this he on relies the ranges crack ex- cocaine the same the Dorsey gave reasons Court con- tent, ac- his sentence should that a cluding defendant who commits a cordingly. crime before the effective date of the FSA but was sentenced after the date effective motion, The district court denied Black’s have the should benefit the He FSA. relying on our decision in Bullard to state just argues Dorsey’s that as did no holding Circuit, that Fourth like most oth- “[t]he principles governing violence the basic ers, mandatory has held that FSA the retroactivity legislation, the retroactively.” do apply mínimums the applying proceed- FSA to The court therefore concluded that while ings similarly would no such do violence. “application guide- the retroactive FSA because, explains, This is he lines in guide- to this matter results a new court the generally applies Sentencing line fifty-one sixty-three Guidelines in effect the date on sentenc- months ... still [the] defendant faces 3553(a)(4)(A)(ii), ing, 18 U.S.C. the and pre-FSA mandatory minimum of 120 against FSA was enacted months’ imprisonment.” background. He con- contends that his arguing Black filed this is appeal, primari- struction confirmed the di- FSA’s ly though Supreme Sentencing that even the the Court’s rective to Commission to Dorsey directly decision in may not have conform its to the soon Guidelines FSA “as provides practicable” Sentencing overruled it nonetheless as the rationale for his in applying response promulgating FSA to Commission’s thereby ranges, applied reduced Guidelines to be sentence, modifying retroactively. his argues, 120-month he consideration, at expressly provide.” Dorsey, 132 S.Ct. Supreme Court policy (internal quotation marks and altera- that the FSA was en- recognized Dorsey omitted). 3553(a)(4)(A)(ii)of tions Section disparities applica- to eliminate acted hand, provides, again Title other through FSA tion of the it, as the Court described disparities. As he states: would eliminate “regardless of the offender’s conduct when reasoning Dorsey It follows from occurs, applicable Guidelines are the intended that the Fair is ones in effect on the date the defendant lenient mandato- Act’s more (internal quotation Id. at 2331 sentenced.” 3582(e)(2) §in also ry mínimums omitted). The Court observed that marks based on retroactive proceedings language “argues of these statutes guideline amendments. opposite Id. at 2230. In re- directions.” logical development Black’s While tension, concluded solving Court fails neat, and therefore it overlooks Congress, enacting clear- First, legal there is no realities. address ly accepted existing understood and explicitly providing the FSA language *5 3553(a), specifically of it principles as it retro- suggesting applied or that be even the instructed Second, Dorsey a ten- actively. resolved promulgate “as as new Guidelines soon sion 109 and 18 U.S.C. between U.S.C. Thus, the practicable.” Court reasoned 3553(a)(4) reasoning not with that would ap- that that the Congress intended FSA proceed- apply to sentence-modification ply yet not to all those who had been 3582(c)(2). Third, under without though may sentenced even their crimes precedential support Dorsey, from is have the at been committed before Act. Id. Bullard, bound our decision 2331. it that con- observed that is not retroactive. And held the FSA dispari- clusion eliminated an undesirable fourth, not ty, noting that two different defendants sentencing proceeding as addressed in quantity accountable for the same of crack and, moreover, the of Dorsey, language day cocaine and sentenced on the same applicability its itself limits after date the FSA—one the effective the defendant was sen- the situation where crime committed Act’s before the tenced that based effective date one for a crime commit- and subsequently the Sentenc- was subject ted after —should same be the second, ing Commission. We address the sentencing. law at Id. at 2333. In es- third, points and fourth further detail. sence, the Court held that the FSA should applied to all sentences prospectively A imposed after Act’s effective date FSA, construing Dorsey In August 2010. Id. at 2335. task resolving Court faced with the was principles interpretation the tension inher- While the Court’s between among pull disparities in two statutes that seemed to in FSA eliminated all de- ent date, directions. Section 109 of Title fendants sentenced opposite after effective it general applicability, recognized which is statute that construction would it, provides, Dorsey place disparities Court leave in between defen- described repeals new dants the effective date of that “a criminal statute sentenced before change an shall sentenced older criminal statute FSA and defendants after. older at Court penalties Dorsey, incurred S.Ct. disparity reasoned that some is inevitable repealing statute unless the Act shall so - sentenced, for a changes -penalty when while withholding crime. change Id. from already defendants sen- tenced. [CJompare 18 U.S.C. case, In this Black was sentenced 3553(a)(4)(A)(ii) 3582(c). §with the 2010 effective date of the before and therefore cannot rely on Dor- [*] [*] sey’s reasoning. Any efforts Black to consequently We conclude par- that this holding by Dorsey’s arguing broaden (between ticular new disparity applies generally the FSA reduce pre-Act already offenders persons sentences all received having 3) those not yet sentenced as of August any minimum sentences at time cannot amake critical difference. before the effective date the FSA are (citation Dorsey, 132 at S.Ct. omit- not supported by any statute or case law. ted). Indeed, our decision in precludes Bullard
such efforts. decided, Dorsey Since was we have twice it concluded that did not overrule our deci-
B sion Bullard. In United States v. Bullard, Mouzone, In “that Cir.2012), we held the FSA does Bullard, retroactively.” held, citing both F.3d at 249. The commit- “applies defendant there retroactively only FSA ted a crime before the effective date preceded August ‘offenders whose crimes 3, 2010, also sentenced but who are sentenced after that before *6 ” date, here, added). just Likewise, effective as is the case (Emphasis date.’ holding Allen, we limited to those circum- 716 F.3d Indeed, noted, (4th Cir.2013), specifically stances. we stated that “our “We do not address the issue of whether in Bullard —that the Fair Sentencing Act apply FSA could be found to defen- to does not have retroactive effect—is limited [by dants whose were Dorsey] offenses committed be- to the extent that the Fair 3, 2010, August but who not Sentencing have Act does to all apply sentences fore sentenced, been question as that is not handed down after its enactment.” presented (emphasis here.” Id. at 248 n. 5 added). Likewise, ex- Court C
pressly extending noted that it was not its attempts distinguish Black to our Bul- relief to individuals 'sentenced before precedents by lard line of noting that FSA’s effective date: those appeals cases involved direct of the recognize application We also that of the sentences, defendants’ initial his whereas new pre-Act mínimums to offenders sen- a ease involves motion under 18 U.S.C. August tenced after a will create new 3582(c)(2). § He argues that his disparities. set of But disparities, 3582(c)(2) § motion initiated new sen- effort, reflecting line-drawing will exist tencing proceeding to which the FSA Congress whenever enacts a new law apply Dorsey, would under because the (unless changing sentences in- Congress sentencing “new” proceeding took place tends re-opening sentencing proceedings the effective date of the FSA. after prior concluded to newa law’s effective
date). have In explained We how in feder- making argument, he acknowl- al sentencing ordinary § practice edges proceeding, is to that- his penalties new to modifications, defendants not which allows for was limited been avail- resentencing.” he ar- er entered sentence have would But “plenary
not a nn only able if his 2007 sentence were “based gues: ’ that sentencing range subse- ha[d] “modification” A sentence Sentencing lowered quently been 3582(c) many of the hallmarks § bears to pursuant 28 U.S.C. Commission sentencing: the district of an initial 994(o).” 3582(c)(2)(empha- § § 18 U.S.C. advisory guide- calculate court must added). That was gate opportunity sis guide- light amended line that only thus under conditions open consider the stat- it must provisions, line satisfy did not sentence out at factors set utory -sentencing —his range” it based on “a 3553(a),-and must exercise § U.S.C. Sentencing subsequently low- what sentence to Commission to determine discretion to originally these factors. See ered. He was light of impose in 3582(c)(2). 1B1.10, Espe- fixed statutory minimum sentence U.S.S.G. 841(b)(1), re- cially cases defendant in 21 where departure assistance did Sentencing change, ceived a substantial enjoys the district court sub- initially, purport change, nor mini- Indeed, latitude in the manner and stantial it no authori- mum sentence. had reduction, calculating what if ty any statutory means minimum fixed change any, the defendant. grant by congressional enactment. fact
This overlooks the argument explicitly recognized by This is Sen serving minimum sen- Black is policy ap tencing. Commission’s statement on him in imposed tence that was 3582(c)(2) proceedings. plicable to See before the 2010 effective date (providing any 18 U.S.C. reasoning Dorsey, applying and that the be “con reduction under must imposed after the FSA sentences .applicable policy sistent with statements date, referred initial sentenc- effective Commission”). issued to the relation- ings, the Court alluded 1B1.10, applicable policy U.S.S.G. *7 act the sen- ship the criminal and between statement, specifies that a defendant is not tence, proceedings subsequent 3582(c)(2) eligible § for relief where his See, e.g., Dorsey, modify the sentence. Guideline has not been lowered “be 2331-32, (referring to the 132 at S.Ct. operation guideline cause of another of for a penalties of crime when imposition statutory (e.g., provision statutory or 1 discussing the tension between U.S.C. mandatory imprison term minimum 3553(a)(4)(A)(ii)); § § 109 and 18 ment).” U.S.C. 1(A) § 1B1.10 cmt. n. U.S.S.G. (referring at to the dis- see also id. 2335 added). 3582(c)(2) (emphasis “Together, § decision as “between parity left Policy clear that Statement make pre-Act already offenders offense defendant whose of conviction August sentenced as and those eligible crack is involved reduced added)). Black’s (emphasis 3” if only [the amendment] sentence lowers modify preexisting an effort to motion is applicable guideline defendant’s Black, 2007, sentence, in imposed fails Munn, range.” United v. 595 F.3d States could explain how his 2007 sentence be (4th Cir.2010). 183, 187 changed application a retroactive without The Sentencing Commission also made of the FSA. point issuing clear when Guideline 759, primary which made the ability Black’s to obtain Amendment implementing an earli- Guideline Amendment modification under
287
(Amendment 750)
equivalent
an original
retroactive.
hear
Dorsey”)-,
under
stated that
Fair Sen-
v.
“[t]he
Commission
States
Hammond,
333,
(6th
712 F.3d
336
provi-
of 2010
contain a
Cir.
tencing Act
did not
2013) (same); United States v.
statutory
Augustine,
retroac-
making
changes
sion
1290,
Cir.2013) (same);
712 F.3d
....
tive
inclusion Amendment 750
[T]he
374,
(Parts
C)
lB1.10(c)
Berry,
F.3d
A and
in
allows
only
v.
(11th Cir.2012) (same). Finally, we con
guideline
changes
considered
clude,
Munn,
as
we stated
that a defen-
application;
retroactive
it does not make
dánt who has been convicted of a crack
any
changes
statutory
in the Fair
given
cocaine offense and
a statutory mini
Sentencing Act
2010 retroactive.”
mum sentence is “ineligible for a reduction
(2011) (em-
C
U.S.S.G.App. Amend.
3582(c)(2).” Munn,
under
595 F.3d at
added).
phasis
187;
Hood,
see also
As deciding short of whether
Dorsey stopped re old
a defendant an FSA-reduced may himself of
gime avail deci
mandatory minimum. open possibility left
sion therefore retroactivity confront
the Court will subsequent case. The Court
issue persuaded am could I— —as un reasoning
Black’s contention equal Dorsey applies with force
derlying as him. Others have
defendants views. See their similar
made known — -, Blewett, v. States 12-5226(L),
-, 2013 WL No. 2013) Dec. at *36-38 Cir. - banc) (en J., dissenting). (Rogers,
Otherwise, congres call for join I following executive action
sional and FSA:
through promise the noble on cocaine sen
to “restore fairness Federal 111-220, 124
tencing.” Pub.L. Stat. See nothing There is fair about of thousands of crack- ongoing plight languish who yet offenders
cocaine .in system, serving sentences based
prison misperceptions,
largely race-based of their gravity
rather than on criminal
conduct. Jr., Lee,
Robert Edward Dawn Michele Charlottesville, Davison, VA, for Petition- Reiner, Jacqueline M. er-Appellant. Bow- Anthony JUNIPER, Bernard Rockecharlie, & Champlin en Foreman Petitioner-Appellant, Anderson, III, PLLC, Robert H. Kath- Burnett, Baldwin erine Senior Assistant DAVIS, Warden, General, Witmer, Attorney Keith Sussex Steven Andrew W. Prison, Respondent- General, I Attorney State Senior Assistant Office
Appellee. Attorney of Virginia, Rich- General *9 mond, VA, RespondenL-Appellee. No. 13-7. Appeals, Court of ORDER Fourth Circuit. GREGORY, Judge: Dec. Anthony Juniper
Petitioner Bernard convicted in the Circuit Court