Please ensure Javascript is enabled for purposes of website accessibility

09-3908 & 09-3914 U.S. v. Bell

By: WISCONSIN LAW JOURNAL STAFF//October 20, 2010//

09-3908 & 09-3914 U.S. v. Bell

By: WISCONSIN LAW JOURNAL STAFF//October 20, 2010//

Listen to this article

Sentencing
Crack cocaine

The Fair Sentencing Act of 2010 is not retroactive.

“Like our sister circuits that have considered this issue, see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the savings statute operates to bar the retroactive application of the FSA. Bell’s arguments to the contrary are novel but ultimately unpersuasive.”

“First, he argues that the FSA does not ‘release or extinguish any penalty,’ and therefore should not be subject to the savings statute. In his view, the FSA merely ‘redefines’ the groups ‘serious’ drug traffickers and ‘major’ drug traffickers,’ two groups at whom Congress originally aimed the stiff mandatory minimum sentences for drug crimes. He rests this argument on United States v. Kolter, 849 F.2d 541 (11th Cir. 1988), in which the Eleventh Circuit concluded that the savings statute did not bar the retroactive application of a new definition of the term ‘convicted felon’ because the redefined term invalidated case law, not a statute, and because the redefinition did not affect punishment prescribed, just the class of individuals subject to it. Id. at 544. The present case is distinguishable from Kolter, however, in that the FSA expressly amended the punishment portion of 21 U.S.C. § 841. Additionally, the terms ‘serious’ and ‘major’ drug traffickers do not appear in either the preexisting or FSA-amended versions of 21 U.S.C. § 841. They were employed by the House as part of its findings relating to the initial version of the Fair Sentencing Act it passed, see Drug Sentencing Reform & Cocaine Kingpin Trafficking Act of 2009, H.R. 265, 111th Cong. § 2(3), (4) (2009), but their absence from the enacted version of the bill, coupled with Kolter’s emphasis on statutory redefinition, renders Bell’s argument unavailing.”

Affirmed.

09-3908 & 09-3914 U.S. v. Bell

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Tinder, J.

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests