(CN) – The Supreme Court on Monday took up two cases concerning retroactive application of new sentencing guidelines for the crack-to-powder cocaine ratio, an issue that divided the circuit courts this summer.
Consolidating two 7th Circuit cases, the justices allotted one hour total for oral argument and said the defendants can proceed in forma pauperis.
When President Barack Obama signed the Fair Sentencing Act of 2010 into law on Aug. 3, 2010, defendants across the country faced sentencing for crimes committed prior to the law’s passage. Whether the courts should retroactively apply the new guidelines for such crimes is a matter that the justices will now sort out.
Under the FSA’s new crack-to-powder cocaine ratio, which took effect Nov. 1, 2011, the federal mandatory minimums and maximums for crack-related offenses are 18:1, reduced from 100:1. The act also includes significant reductions in the guidelines range.
In the older case picked up by the Supreme Court, United States v. Fisher, the 7th Circuit held that criminals should be punished based on the law in effect at the time when the crime was committed.
Edward Dorsey Sr. pleaded guilty to distributing 5.5 grams of crack cocaine. Dorsey committed the crime before passage of the FSA and was sentenced about a month after the law was enacted.
Dorsey appealed his sentence to the 7th Circuit because an Illinois federal judge decided not to apply the FSA. The court consolidated Dorsey’s case with that of Anthony Fisher, but a three-judge panel affirmed both sentences in March. The full circuit later refused to grant a rehearing sought by Dorsey.
Two judges on the court dissented, however, saying retroactivity should apply.
“We are the first circuit to address the question of whether individuals sentenced after the enactment of the FSA are entitled to the benefit of the statute,” according to that opinion, authored by Judge Ann Claire Williams (italics in original). “Given the five-year statute of limitations for offenses such as the one at issue, adhering to a flawed view concerning the application of the General Saving Statute will require the district courts to continue administering sentences that have been acknowledged by Congress as unjust. While the number of people indicted for pre-FSA conduct will diminish over time, in fiscal year 2010, at least 78.8% of defendants sentenced for crack-cocaine offenses were sentenced for conduct involving five grams or more of the drug.”
In April, a three-judge panel also rejected the other case that has been consolidated with Fisher for review by the Supreme Court.
Corey Hill had pleaded guilty in 2009 to possessing at least 50 grams of cocaine with intent to distribute. Since the trial court elected to use the old guidelines, Hill was sentenced to 10 years in December.
The 7th Circuit also refused to waver in a separate case brought for review by the full court because the government prosecutor filed a Notice of Changed Position in light of the fact that the attorney general wanted to apply the new guidelines.
That decision in August created a circuit split, since the 1st, 3rd and 11th Circuits each adopted the attorney general’s sentencing recommendations.
The Supreme Court did not comment on its decision to consolidate Fisher and Hill for review. Sentences affirmed by the full 7th Circuit in August do not appear to be involved in the cases taken up by the high court.