Federal courts split on case retroactivity

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Under 7th Circuit precedent, federal courts in Wisconsin are bound to apply the old mandatory minimum sentences for crack cocaine offenses occurring before the Fair Sentencing Act of 2010 went into effect.

But the stage may now be set for the U.S. Supreme Court to consider the issue. Two judges on the 7th Circuit have dissented from a denial of a petition to reconsider the law’s retroactivity en banc.

And now the 1st Circuit has created an inter-circuit conflict, holding that defendants sentenced after Nov. 1, 2010, should be sentenced under the more lenient guidelines, even if the conduct predates the FSA.

So, when defense attorneys request lower sentences under the FSA, they at least have some persuasive authority to support the requests and preserve the issue for appeal, even if the district courts are bound to rule against them.

Prior to the FSA, 5 grams of crack cocaine was sufficient to trigger a five-year mandatory minimum, and 50 grams was sufficient to trigger a ten-year mandatory minimum.

Under the FSA, 28 and 280 grams are now required to trigger the same minimums, respectively.

The 7th Circuit precedent was set in U.S. v. Fisher, No. 10-2352 (7th Cir., Mar. 11, 2011).

Anthony Fisher pleaded guilty in 2010 in Wisconsin federal court to one count of conspiracy to distribute crack. The district court sentenced him to the 120-month minimum based on 50 or more grams of crack.

On appeal, he argued that, because his appeal was pending on Aug. 3, 2010, when the FSA went into effect, the law should be applied to him.

But the 7th Circuit disagreed, holding that the FSA is not retroactive, and applies only to defendants who are sentenced based on conduct that took place after Aug. 3, 2010, when the FSA went into effect.

Last month, the court denied petitions for rehearing and rehearing en banc in the case. U.S. v. Fisher (7th Cir., May 25, 2011).

But two judges on the court, Ann Claire Williams and David Hamilton, dissented, maintaining that the court should consider whether a defendant “incurs” a penalty at the time of sentence or at the time of the conduct for purposes of the General Saving Statute.

That statute provides, “The repeal of any statute shall not have the effect to release or extinguish any penalty forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide.” 1 U.S.C. 109.

Less than a week later, a 1st Circuit panel created a conflict by holding the FSA retroactive in U.S. v. Douglas, No. 10-2341 (1st Cir., May 31, 2011).

The court explained, “It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”

David Ziemer can be reached at [email protected].