United States v. Jackson, 678 F.3d 442 (2012).
Panel of Judges Merritt, Boggs, and Clay. Judge Boggs dissented.
Decided May 8, 2012.
Rehearing en banc denied on July 9, 2012. Mandate issued July 17, 2012.
This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc.
Career offender. Sentencing was delayed to see if Congress would lower the crack penalties. Court finally sentenced the defendant on July 16, 2010. Court did not apply the CO GLs. Instead, gave the D 150 months. This sentence was w/i the crack GLs that would have applied but for the CO enhancement.
While the case was on appeal, the FSA became law. D sought remand for reduction of sentence.
Was the sentence based on the career-offender GL or the crack GL?
While the D qualified for the CO enhancement, the focus was the crack GL actually applied. "To do otherwise is to impose a harsh sentence on
defendant when the severity of the old guidelines has been criticized by nearly
every stakeholder in the criminal justice system, as well as by Congress."
Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs.
The crack GLs were "a relevant part" of the sentencing framework.
The procedural posture of this case makes it a little different---direct appeal. But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).
Judge Boggs dissented.
He finds that the applicable GL range was the pre-departure range: the CO range here. That range did not change with the FSA, so no reduction in sentence possible. Also finds that FSA statutory sentencing ranges are not retroactive. Cites Carradine.