Wednesday, April 10, 2013

When the Fair Sentencing Act is Not Fair- FSA Does not Apply to 18 U.S.C. section 3582 petitions

For the first time, the Sixth Circuit has addressed the scope and applicability of the Fair Sentencing Act in an 18 U.S.C. section 3582 petition.  The short answer - it does not apply.

In United States v. Hammond, Case No. 12-5522, the defendant was originally sentenced in 2008.  In 2012, pursuant to 18 U.S.C. section 3582, the defendant requested application of the newly revised Sentencing Guidelines as they related to crack cocaine sentences.  The district court found that the new Guidelines did indeed apply, and that the sentence should be reduced.  However, the defendant's mandatory minimum, under pre-FSA statutes, was 120 months.  The court therefore reduced the sentence from 121 to 120 months. 

On appeal, the defendant argued that the FSA should apply, and cited to the Supreme Court decision in Dorsey v. United States. -- U.S. --, 132 S.Ct. 2321 (2012)  The Court agreed Dorsey controlled, but not in the manner suggested by the defense.  Rather, because the mandatory minimum range had "not subsequently been lowered by the Sentencing Commission", that change in law fell outside the scope of 18 U.S.C. section 3582, and the district court was correct in refusing to apply the new mandatory minimum.  The Court noted that Dorsey itself suggested that because the Hammond was "already sentenced", that the FSA would not apply.

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