United States of America v. Evelyn Michelle Leviner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4410
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UNITED STATES OF AMERICA
v.
EVELYN MICHELLE LEVINER,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2-07-cr-00100-008)
District Judge: Honorable Joy Flowers Conti
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 24, 2013
Before: CHAGARES, VANASKIE, and SHWARTZ Circuit Judges.
(Filed: January 14, 2014)
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OPINION
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VANASKIE, Circuit Judge.
Evelyn Leviner appeals the District Court’s denial of her motions for a sentence
reduction and for retroactive application of the Fair Sentencing Act of 2010 (the “FSA”),

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Pub. L. 111-220, 124 Stat. 2372. Because Leviner was convicted and sentenced prior to
the FSA’s effective date, we will affirm.
On October 3, 2007, Leviner pled guilty to several drug offenses, including
possession with intent to distribute and distribution of fifty grams or more of crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). She was sentenced on
January 4, 2008. At that time, offenses involving more than fifty grams of crack cocaine
carried a mandatory minimum sentence of ten years’ imprisonment. Accordingly, the
District Court sentenced Leviner to a ten year term of incarceration, followed by a five
year term of supervised release.
Congress subsequently enacted the FSA, which, inter alia, altered the quantity of
crack cocaine necessary to trigger certain mandatory minimum penalties under the
Controlled Substances Act, 21 U.S.C. § 841. The FSA’s effective date is August 3, 2010.
Pub. L. 111-220, 124 Stat. 2372. Under the new statutory framework, the mandatory
minimum sentence for Leviner’s crimes of conviction was lowered from ten years’ to
five years’ imprisonment.
Leviner urges us to apply retroactively the FSA’s reduced penalties for crack
cocaine offenses to her sentence pursuant to 18 U.S.C. § 3582(c)(1)(B), which authorizes
courts to “modify an imposed term of imprisonment to the extent otherwise expressly
permitted by statute.” We have previously concluded, however, that the FSA does not
apply to individuals who, like Leviner, were convicted and sentenced prior to the FSA’s
effective date. See United States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010). Following
our decision in Reevey, the Supreme Court held in Dorsey v. United States, 132 S. Ct.

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2321 (2012), that Congress intended the FSA to apply to individuals who were convicted
before the FSA was enacted, but sentenced after its effective date. Id. at 2335. Leviner
contends that the Court’s reasoning in Dorsey supports her conclusion that the FSA
should likewise be extended to individuals sentenced prior to August 3, 2010. We have
previously rejected this argument, concluding instead that “[Dorsey] does not address, or
disturb, the basic principle that the FSA does not apply to those defendants who were
both convicted and sentenced prior to the effective date of the FSA.” United States v.
Turlington, 696 F.3d 425, 428 (3d Cir. 2012). In light of our holding in Turlington, the
District Court properly denied Leviner’s motions for reduction of her sentence and for
retroactive application of the FSA.
Accordingly, we will affirm the judgment of the District Court.

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