Criminal Law: Retroactive Application of the Fair Sentencing Act

United States v. Rigaud, USDC Crim. No. 06-10385-NMG (August 11, 2010)

Issue: Whether the Fair Sentencing Act of 2010 (“FSA”) applies retroactively to sentences imposed before August 3, 2010 (the date the FSA went into effect)?

Summary: No, the FSA does not apply retroactively, subject to the exception delineated below.  The FSA is the law which reduced the disparity between federal criminal penalties for crack cocaine and powder cocaine offenses from a 100:1 ratio to an 18:1 ratio (based on number of grams in possession and eliminated the five-year mandatory sentence for simple possession of crack cocaine, among others.  Defendant in this case was sentenced in 2008 to 120 months after pleading guilty to seven counts of possession with intent to distribute cocaine base.  The FSA does not apply to the Defendant’s sentencing because his wrongful conduct occurred long before Aug. 3, 2010.

Practice Pointer: In United States v. Goncalves, F.3d 245, 254-55 (1st Cir. 2011), the First Circuit Court of Appeals held that the FSA does not apply retroactively to persons whose wrongful conduct occurred before Aug. 3, 2010.  However, the Court created an exception to the rule in United States v. Douglas, 644 F.3d 39 (1st Cir. 2011), in situations where the sentencing was after November 1, 2010, the date when corresponding amendments to the Sentencing Guidelines took effect.  The FSA applies to sentences imposed after November 1, 2010, despite the fact that the wrongful conduct occurred before August 3, 2010.  The case at bar was distinguishable from Douglas because the defendant was sentenced well before the November 1, 2010 date and also well before the enactment of the FSA.

Note: Full text of the opinion may be obtained from PACER upon request.  Please contact Wassem Amin for more information.

For more information on the FSA and the retroactive amendment, please visit this site.

Wassem M. Amin

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