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October 20, 2011

Split Fifth Circuit deepens split over FSA's application to pipeline cases

I am not tickled to have to report than another circuit has now refused to allow the application of the Fair Sentencing Act's revised statutory sentencing minimums to defendants who committed crack offenses before the FSA became law, but were sentenced after it was signed by President Obama in August 2010.  The new ruling comes from the Fifth Circuit in US v. Tickles, No. No. 10-30852 (5th Cir. Oct. 19, 2011) (available here), and the per curiam majority opinion begins this way:

The court considered these cases jointly without oral argument because they raise a single issue: whether these defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111- 220, 124 Stat 2372, when their illegal conduct preceded the Act but their sentencing proceedings occurred post-enactment.  The issue is the retroactivity, or partial retroactivity, of the FSA, a statute intended by Congress to “restore fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the previous 100:1 ratio between thresholds for sentences for crack and powder cocaine offenses. We are one among many circuit courts that have thoroughly vetted this issue, and we have little to add to the discussions of others.  As will be seen below, we side with those courts that have denied retroactive application.

The dissent by Judge Stewart ends this way:

The will of Congress, as expressed in the Fair Sentencing Act’s substance, preamble, and title, will be disregarded by the courts’ continued imposition of severe penalties which Congress has explicitly determined to be unfair.  Accordingly, I agree with a number of our sister circuits that the provisions of the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the statute’s enactment, regardless of whether the underlying offense conduct occurred prior to the Act’s enactment.  See United States v. Douglas, 644 F.3d 39 (1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon, 648 F.3d 195 (3d Cir. 2011).

The majority opinion would continue to impose disproportionately harsh sentences of imprisonment on many crack cocaine offenders, despite Congress’s clear and obvious determination that such penalties are unfair. For this reason, I respectfully dissent.

October 20, 2011 at 02:12 PM | Permalink


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Paging SCOTUS: Two sentencing issues that have hopelessly divided the circuits. FSA applying to not-yet-sentenced individuals (4-3 circuit split); Variance based on lack of a Fast-Track program (5-3 circuit split).

Posted by: DEJ | Oct 20, 2011 7:05:02 PM

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