Fair Sentencing Act - Relevant Date for Determination of Retroactivity is the Date of the Underlying Criminal Conduct, Not the Date of Sentencing.

USA v. Anthony Fisher, 10-2352. USA v. Edward Dorsey, Sr., 10-3124.

The Fair Sentencing Act of 2010 (FSA) might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive. But whether the FSA should be amended to more closely resemble its name is a matter for Congress.

We can do nothing about it at this time.

The FSA increased the drug quantities necessary to trigger mandatory minimum sentences under the Controlled Substances Act and the Controlled Substances Import and Export Act. Prior to the effective date (August 3, 2010) of the FSA, the amount of cocaine necessary to bring the mandatory minimum sentences into play was based on what is now viewed as the flawed 100:1 ratio of crack v. powder cocaine.

For crack cocaine, the FSA increased the amount from 5 to 28 grams for activating the five-year mandatory minimum term. For the ten-year mandatory minimum, the threshold amount jumped from 50 to 280 grams.

But the problem, from the point of view of the two defendants in this case, is that the FSA is not retroactive. It applies only to defendants who are sentenced based on conduct that took place after August 3, 2010.Fisher claims that the FSA should apply because his appeal was pending on August 3, 2010, when the Act went into effect.

Fisher asks us to apply the FSA retroactively to his sentence. However, as he acknowledged at oral argument, his case falls squarely within the ambit of our recent opinion in United States v. Bell, 624 F.3d 803 (7th Cir. 2010).

In Bell, we were also dealing with a defendant who had been convicted and sentenced and had an appeal pending when the FSA went into effect. We found that the general federal savings statute, 1 U.S.C. § 109, applies to the FSA and prevents it from operating retroactively. 624 F.3d at 815.

The appeal of our other defendant, Edward Dorsey, presents a slight wrinkle because he was sentenced after the FSA went into effect. On June 3, 2010, Dorsey pled guilty to possessing 5.5 grams of crack cocaine with intent to distribute, in Kankakee, Illinois, on August 6, 2008.

Because he had a prior felony drug conviction, the mandatory minimum 10-year term was in play. Under the FSA, however, Dorsey would have had to possess at least 28 grams of crack in addition to the prior felony drug conviction to trigger the 10-year mandatory minimum. Dorsey was sentenced on September 10, 2010.

At sentencing, the district judge declined to apply the FSA to Dorsey's case, saying, "in this case the crime that you pled guilty to was . . . two years before the President signed the legislation." Dorsey was sentenced to 120 months.

Dorsey argues that, even if the savings statute prevents retroactive application of the FSA, the relevant date for a retroactivity analysis is the date of sentencing, not the date of the commission of the criminal act, and therefore the FSA should have applied to him.

Dorsey suggests that, in keeping with congressional intent and for reasons of fairness, we should distinguish someone in his situation from that of the defendant in Bell, and apply the FSA to all defendants sentenced after August 3, 2010.

Specifically, Dorsey points to the fact that the FSA expressly urged the Sentencing Commission to amend the guidelines on an emergency basis, and required the amendments to be adopted by November 1, 2010. He argues that this is evidence of the implicit will of Congress that the FSA be as speedily and widely implemented as possible.

Further, he points to statements of various legislators urging the adoption of the FSA as the means to correct the long-standing unfairness in crack cocaine sentences, and urging the application of the FSA to all defendants who had not been sentenced as of passage of the FSA, regardless of whether their criminal conduct occurred before this date.

We believe that if Congress wanted the FSA or the guideline amendments to apply to not-yet-sentenced defendants convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission.

In other words, if Congress wanted retroactive application of the FSA, it would have said so.

Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the underlying criminal conduct, not the date of sentencing.

We close with one final observation. Because crack cocaine quantity is viewed as a sentencing factor rather than a charged element of the offense, it is possible that a defendant could be convicted for conduct taking place both before and after August 3, 2010.

Were this the case, any conduct committed after August 3, 2010 would necessarily be considered within the confines of the FSA. But Dorsey's sentence was based entirely on conduct that occurred two years prior to August 3, 2010. He can, therefore, not get the kind of relief that may be available to a defendant whose criminal conduct straddles August 3, 2010.

A future defendant in that situation may very well be able to benefit, at least in part, from the FSA.

For these reasons, the judgments as to Fisher and Dorsey are AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

Comments

[Maribel]

The FSA being retroactive or not is soooooo confusing with all the legal terminology. At this point, is there any hope of is being approved someday to be retroactive?

[Maribel]

The FSA being retroactive or not is soooooo confusing with all the legal terminology. At this point, is there any hope of it MAYBE being approved someday to be retroactive?