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May 7, 2011

Fourth Circuit discusses inapplicability of FSA to case on appeal after enactment

The Fourth Circuit on Friday joined its fellow circuits in holding that the new provisions of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal.  The ruling in US v. Bullard, No. 09-5214 (4th Cir. May 6, 2011) (available here), includes these passages and a key footnote:

Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to "promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable . . . ," Pub. L. No. 111-220, evinces its intent to have the law apply retroactively.  We disagree.  Congress’s desire to have the FSA implemented quickly in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed.[FN5]  Congress knows how to explicitly provide for retroactive application when it so desires.

[FN5] We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here.

May 7, 2011 at 08:02 AM | Permalink


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I argued this case. We also argued that the pre-FSA crack penalties violate equal protection and due process. Petition for rehearing en banc has been filed.

Posted by: Matthew Robinson | May 23, 2011 2:48:08 PM

Arizona state courts erred in concluding that PTSD was not mitigating factor as they incorrectly concluded there had to be a causal connection between proffered mitigation and the crime.

Posted by: Australia Superannuation | Nov 23, 2011 9:32:02 PM

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