UNITED STATES of America, Plaintiff-Appellee, v. John DRAUGHN, Defendant-Appellant, 489 F. App'x 524

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. John Draughn appeals from the judgment of the United States District Court for the Southern District of New York (Seibel, J.) sentencing him principally to 188 months’ imprisonment after he pleaded guilty to distributing fifty grams and more of crack cocaine (Count I), five grams and more of crack cocaine (Count II), and five hundred grams and more of powder cocaine (Count III).

After the plea but before sentencing, Congress passed the Fair Sentencing Act of 2010 (“FSA”), substantially lowering the statutory maximum penalties for offenses involving crack cocaine. Consistent with Second Circuit case law on the date of sentencing, December 14, 2010, the district court concluded that the FSA did not apply retroactively. See United States v. Acoff, 634 F.3d 200, 202 (2d Cir.2011), abrogated by Dorsey v. United States, — U.S.-, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

On June 21, 2012, the United States Supreme Court held that the FSA applies retroactively to offenders who, like Draughn, were sentenced after the FSA was enacted on August 3, 2010. See Dorsey, 132 S.Ct. at 2335. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. In the Plea Agreement, Draughn agreed not to file a direct appeal challenging any sentence within or below the stipulated range of 262 to 327 months.

Since the 188-month sentence imposed is below the stipulated range of 262 to 327 months’ imprisonment, Draughn has waived his right to appeal. See United States v. Harrison, 699 F.3d 158 (2d Cir.2012) (per curiam). For the foregoing reasons, and finding no merit in Draughn’s other arguments, we hereby AFFIRM the judgment of the district court.