By: WISCONSIN LAW JOURNAL STAFF//March 11, 2011//
Sentencing
Crack cocaine
The FSA does not apply retroactively, and the relevant date for a determination of retroactivity is the date of the underlying criminal conduct, not the date of sentencing.
“Debate surrounding the crack cocaine sentencing scheme and the infamous ‘100:1 ratio’ has been raging for years, and there is strong rhetoric to be found on either side. The FSA is compromise legislation and must be viewed as such. Given the long-standing debate surrounding, and high-level congressional awareness of, this issue, we hesitate to read in by implication anything not obvious in the text of the FSA. 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.”
Affirmed.
10-2352 & 10-3124 U.S. v. Fisher
Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Evans, J.