Sentencing — crack cocaine

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — crack cocaine

Where the district court did not apply the correct crack to powder cocaine ratio, the sentence was not properly calculated.

“The brief argues that there are no non-frivolous grounds for appeal and seeks permission for the attorney to withdraw. Since the Anders brief is sufficient on its face, we consider only those issues raised in the brief and the response to the brief. United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). Having carefully reviewed all the materials submitted, we would, if it were not for Dorsey v. United States, 132 S. Ct. 2321 (2012), agree with the attorney that there are no non-frivolous grounds for appeal as to Watson. But Under Dorsey, we must remand this case for sentencing in accord with the FSA. See id. Unlike the other cases in this consolidated appeal, there is no evidence that the district court applied the 18-to-1 ratio under the FSA or that the petitioner’s sentence would have been the same had the district court applied the FSA’s 18-to-1 ratio. In Watson’s case, the district court stated that it was not bound by the FSA and that the correct Guidelines range was 210 to 262 months, a range based on the 100-to-1 ratio. Even though the district court departed downward to the FSA’s sentencing range of 168 to 210 months, that departure was “based on Mr. Watson’s character, in general.” The FSA range should have been the starting point range, not the end point range based on a downward departure after considering the § 3553(a) factors.”

Affirmed in part, and Remanded.

10-3130, 10-3505 & 11-1395 U.S. v. Jones

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Bauer, J.