Sentencing — FSA

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — FSA

Where the district judge held that the Fair Sentencing Act was not retroactive, the sentence must be vacated.

“[W]e know the judge varied from the applicable Guidelines range; however, there are at least two reasons that could support the decision: the judge’s desire to comply with the spirit of the FSA or, alternatively, other facts unique to Gulley. The judge did not explicitly explain the departure, cf. United States v. Anderson, 517 F.3d 953, 965-66 (7th Cir. 2008) (concluding that the sentencing error was harmless because the district judge ‘clearly stated’ he would impose the same sentence even if his Guidelines calculation was incorrect), and we are not convinced the judge would have imposed the same sentence if the FSA had applied—he may have, but we cannot be ‘certain.’ See United States v. Zahursky, 580 F.3d 515, 528 (7th Cir. 2009). We, therefore, vacate Gulley’s prison and supervised release terms and remand for resentencing using the correct Guidelines range.”

Affirmed in part, and Vacated in part.

11-3411 U.S. v. Gulley

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Bauer, J.