It was reported in the Courthouse News Service, that the Supreme Court on Monday agreed to hear two cases related to the issue of retroactivity and the 2010 Fair Sentencing Act (FSA), which deals with sentencing guidelines for powder cocaine and crack cocaine offenses.
Under the FSA, a conviction for the distribution of 280 grams of crack cocaine now carries a 10-year mandatory sentence, up from the previous level of 50 grams that triggered the mandatory minimum. The same sentence continues in effect for distribution of 5 kg of powder cocaine, so the FSA reduces the disparity in sentencing of crack and powder cocaine to 18:1 from 100:1.
There is currently a three-way split at the circuit court level regarding the implementation of the FSA. The 1st Circuit Court of Appeals has held that the FSA standards apply to sentencing which occurs after the guidelines were promulgated, so after November 1, 2010. The 1st Circuit has said this is the case regardless of when the underlying offense was committed. The 3rd Circuit Court of Appeals, however, has held that the FSA standards apply to sentencing that occurs only after the FSA was enacted on, so after August 3, 2010. The 3rd Circuit has also said this is the case regardless of when the underlying offense was committed. The 5th, 7th and 8th Circuits have all held that the FSA does not apply unless the underlying offense was committed after August 3, 2010. The 6th Circuit has held that FSA is not retroactive.
However, closer to home, Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that in the Eastern District the Fair Sentencing Act applies to defendants whose offense occurred before August 3, 2010, and who are sentenced after that date. Judge Collier distinguishes Robinson from the Sixth Circuit's Carradine opinion.
The cases before the Supreme Court both arise from the 7th Circuit. Both petitioners were found guilty of crack cocaine offenses before Congress passed the FSA. In one case, the criminal was sentenced after the FSA was enacted, but before guidelines to implement the Act were put into effect. In the other case, the convict was sentenced after both the enactment of the FSA and the passage of the implementing guidelines. In each case the courts refused to apply the new FSA standards, choosing to instead sentence the criminals to significantly longer prison terms. The 7th Circuit affirmed the lower courts’ decisions.
The federal government initially asserted that the FSA standards would not apply to offenses committed before August 3, 2010. It later changed its mind. This summer Attorney General Eric Holder issued a memo stating that the FSA guidelines should apply to all sentences "that occur on or after August 3, 2010, regardless of when the offense conduct took place.”
The Supreme Court is now faced with the decision of choosing between the Circuit Courts. The justices must decide whether the new guidelines apply to sentences imposed after the FSA became law for offenses that were committed before the FSA was enacted.
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