U.S. v. Fisher

Decision Date11 March 2011
Docket NumberNos. 10–2352,10–3124.,s. 10–2352
Citation635 F.3d 336
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Anthony FISHER, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Edward Dorsey, Sr., Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Jonathan H. Koenig (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for PlaintiffAppellee in No. 10–2352.Daniel T. Hansmeier (argued), Attorney, Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for DefendantAppellant in No. 10–2352.Anthony Fisher, Oklahoma City, OK, Pro Se.Jonathan H. Koenig (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for PlaintiffAppellee in No. 10–3124.Daniel T. Hansmeier (argued), Attorney, Office of the Federal Public Defender, Springfield, IL, John C. Taylor, Attorney, William C. Zukosky, Attorney, Office of the Federal Public Defender, Urbana, IL, for DefendantAppellant in No. 10–3124.Edward Dorsey, Sr., Pekin, IL, Pro Se.Before ROVNER, WOOD, and EVANS, Circuit Judges.EVANS, Circuit Judge.

The Fair Sentencing Act of 2010 (FSA) might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive. But whether the FSA should be amended to more closely resemble its name is a matter for Congress. We can do nothing about it at this time.

The FSA increased the drug quantities necessary to trigger mandatory minimum sentences under the Controlled Substances Act and the Controlled Substances Import and Export Act. Prior to the effective date (August 3, 2010) of the FSA, the amount of cocaine necessary to bring the mandatory minimum sentences into play was based on what is now viewed as the flawed 100:1 ratio of crack vs. powder cocaine. For crack cocaine, the FSA increased the amount from 5 to 28 grams for activating the five-year mandatory minimum term. For the ten-year mandatory minimum, the threshold amount jumped from 50 to 280 grams. But the problem, from the point of view of the two defendants in this case, is that the FSA is not retroactive. It applies only to defendants who are sentenced based on conduct that took place after August 3, 2010.

Anthony Fisher pled guilty in Wisconsin, in February 2010, to one count of conspiracy to distribute crack. A presentence report stated that he was responsible for between 150 and 500 grams of crack. It recommended a 140 to 175 months guideline range. Fisher disputed this, claiming he was responsible for only 50 to 150 grams of crack and the proper guideline range was 120 to 150 months. The district judge declined to resolve the quantity dispute and sentenced Fisher to the 120–month mandatory minimum based on 50 or more grams of crack. Judgment was entered on June 2, 2010. Fisher filed a notice of appeal the next day.

Fisher claims that the FSA should apply because his appeal was pending on August 3, 2010, when the Act went into effect. Fisher asks us to apply the FSA retroactively to his sentence. However, as he acknowledged at oral argument, his case falls squarely within the ambit of our recent opinion in United States v. Bell, 624 F.3d 803 (7th Cir.2010). In Bell, we were also dealing with a defendant who had been convicted and sentenced and had an appeal pending when the FSA went into effect. We found that the general federal savings statute, 1 U.S.C. § 109, applies to the FSA and prevents it from operating retroactively. 624 F.3d at 815.

Fisher asks us to rethink Bell. However, he makes this suggestion based not on case law, but on his own suggested interpretations of the FSA and the application of the savings statute thereto. We are not persuaded and decline to stray from our recent precedent in Bell. We further note that our sister circuits have likewise found that the savings statute bars retroactive application of the FSA. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010).

The appeal of our other defendant, Edward Dorsey, presents a slight wrinkle because he was sentenced after the FSA went into effect. On June 3, 2010, Dorsey pled guilty to possessing 5.5 grams of crack cocaine with intent to distribute, in Kankakee, Illinois, on August 6, 2008. Because he had a prior felony drug conviction, the mandatory minimum 10–year term was in play. Under the FSA, however, Dorsey would have had to possess at least 28 grams of crack in addition to the prior felony drug conviction to trigger the 10–year mandatory minimum. Dorsey was sentenced on September 10, 2010. At sentencing, the district judge declined to apply the FSA to Dorsey's case, saying, “in this case the crime that you pled guilty to was ... two years before the President signed the legislation.” Dorsey was sentenced to 120 months.

Dorsey argues that, even if the savings statute prevents retroactive application of the FSA, the relevant date for a retroactivity analysis is the date of sentencing, not the date of the commission of the criminal act, and therefore the FSA should have applied to him. Dorsey suggests that, in keeping with congressional intent and for reasons of fairness, we should distinguish someone in his situation from that of the defendant in Bell, and apply the FSA to all defendants sentenced after August 3, 2010.

In Bell we held that the savings statute prevents the FSA from “operating retroactively absent any...

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