United States v. Andrew Kelly
2013 U.S. App. LEXIS 9639
| 5th Cir. | 2013Background
- Kelly pled guilty in 2004 to possession with intent to distribute 50+ grams of cocaine base and possession of a firearm in aid of a drug offense.
- Amendment 706 reduced the Count One sentence; district court reduced to 120 months but left the 10-year mandatory minimum in place for the original offense.
- Under the Fair Sentencing Act, the new minimums would have lowered the applicable sentence for the drug quantity originally attributed to Kelly.
- Kelly moved under § 3582(c)(2) to further reduce his sentence based on Amendment 750, arguing the FSA should apply retroactively to his sentence.
- The district court declined to reduce below the original mandatory minimum, applying the pre-FSA 10-year minimum.
- The court and appellate panel noted that § 3582(c)(2) reductions are not plenary re-sentencings and discuss controlling circuit precedent on post-FSA modifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dorsey allows post-FSA reductions to retroactively apply FSA minimums. | Kelly relies on Dorsey to apply FSA benefits to his post-enactment modification. | Pre-FSA mandatory minimums apply to § 3582(c)(2) reductions; Dorsey does not require retroactive application here. | No retroactive application; pre-FSA minimum controls. |
| Whether § 3582(c)(2) authorizes a reduction below the original mandatory minimum. | The FSA reductions should allow a further cut in sentence. | A 3582(c)(2) reduction cannot go below the pre-existing mandatory minimum. | Not authorized to reduce below the pre-FSA mandatory minimum. |
| Whether post-FSA modification hearings are plenary re-sentencings under Dorsey. | Hearing constitutes a new sentencing after FSA, entitling benefits. | Hearing is not a full re-sentencing; standard § 3582(c)(2) procedure applies. | Post-FSA hearings are not plenary re-sentencings. |
Key Cases Cited
- United States v. Carter, 595 F.3d 575 (5th Cir. 2010) (pre-FSA minimums govern reductions under § 3582(c)(2))
- United States v. Evans, 587 F.3d 667 (5th Cir. 2009) (guidelines interpretation; de novo review)
- United States v. Garcia, 655 F.3d 426 (5th Cir. 2011) (limits on § 3582(c)(2) reductions; not plenary resentencing)
- United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013) (rejection of retroactive FSA application to pre-Act offenders)
- United States v. Hammond, 712 F.3d 333 (6th Cir. 2013) (FSA not retroactive for post-enactment sentence reductions)
- United States v. Berry, 701 F.3d 374 (11th Cir. 2012) (Dorsey limited to pre-Act offenders awaiting sentencing)