On Friday, the Seventh Circuit clarified how the Fair Sentencing Act of 2010 is to be applied to cases that were pending on the statute’s effective date — it isn’t. The FSA increased the threshold quantities necessary to trigger the five- and ten-year mandatory minimums for crack cocaine offenses. The statute thus partially closes the notorious crack-powder sentencing disparity, with an effective date of August 3, 2010. Shortly thereafter, in United States v. Bell, 624 F.3d 803 (7th Cir. 2010), the Seventh Circuit held that the FSA does not apply retroactively to cases in which an appeal was pending on August 3.
Once again, however, the court declined to apply the FSA:
Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the underlying criminal conduct, not the date of sentencing.
Although this ruling easily disposed of the defendants’ arguments in Fisher, the court suggested that another class of “straddle” defendants might present some more difficult questions:
Because crack cocaine quantity is viewed as a sentencing factor rather than a charged element of the offense, it is possible that a defendant could be convicted for conduct taking place both before and after August 3, 2010. Were this the case, any conduct committed after August 3, 2010 would necessarily be considered within the confines of the FSA. But Dorsey’s sentence was based entirely on conduct that occurred two years prior to August 3, 2010. He can, therefore, not get the kind of relief that may be available to a defendant whose criminal conduct straddles August 3, 2010. A future defendant in that situation may very well be able to benefit, at least in part, from the FSA.
The court acknowledged the unfairness of its holding, but attempted to pin the blame on Congress:
We have sympathy for the two defendants here, who lost on a temporal roll of the cosmic dice and were sen- tenced under a structure which has now been recognized as unfair. However, “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 664 (1974).
The court thus wryly observed:
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.