United States v. Fisher, 635 F.3d 336

Fisher and Dorsey filed petitions for rehearing and rehearing en banc from their convictions on crack cocaine distribution and related sentences, respectively.
A panel held that the Fair Sentencing Act (FSA) was not retroactive to individuals with conduct before its enactment, applying the default to pending cases via sentencing guidelines as of the date of sentencing.
The defendants argued the General Saving Statute (1 U.S.C. § 109) precluded applying the FSA to those yet to be sentenced by operation of the saving provision.
The U.S. Sentencing Commission issued emergency guidelines under section 8 of the FSA and those amendments became effective for defendants sentenced after November 1, 2010.
The dissent contends that section 8 demonstrates Congress’s intent to apply the FSA to pending cases and that the saving statute should not block that application.
Dorsey challenges whether the penalty is incurred at sentencing or at the time of conduct, discussing whether sentencing factors (drug weight) trigger penalties under § 841 and how that interacts with the FSA and saving provisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the General Saving Statute bar applying the FSA to pending cases?	Government argues saving statute permits delays.	Dorsey argues section 8 shows intent to apply FSA to pending cases.	Panel held saving statute bars retroactive application; dissent disputes.
Should the FSA apply to defendants sentenced after its enactment for conduct before enactment?	Panel reads FSA to affect only conduct after enactment or under guidelines.	Section 8 shows Congress intended consistency and application to pending cases.	Dissent would apply FSA to Dorsey; panel did not.

Great Northern Ry. Co. v. United States, 208 U.S. 452 (1908) (saving statute may be overridden by necessary implication)
Marrero v. United States, 417 U.S. 653 (1974) (necessary implication of saving statute with later enactment)
Lockhart v. United States, 546 U.S. 142 (2005) (congressional saving statute can be overridden by fair implication)
Watts, 775 F. Supp. 2d 263 (D. Mass. 2011) (districts applying emergency amendments under FSA section 8)
Douglas, 746 F. Supp. 2d 220 (D. Me. 2010) (emergency guidelines under FSA applied to post-enactment sentencing)
United States v. Fisher, 635 F.3d 336 (7th Cir. 2011) (panel decision on retroactivity of FSA to pending cases)
Great Northern Ry. Co. v. United States, 208 U.S. 452 (1908) (savings and implied conflict concept with subsequent repeal)
United States v. Bjorkman, 270 F.3d 482 (7th Cir. 2001) (drug quantity as sentencing factor, not an element)
United States v. Krieger, 628 F.3d 857 (7th Cir. 2010) (mandatory minimums constrain sentencing discretion rather than create elements)
Bell, 624 F.3d 803 (7th Cir. 2010) (FSA is not procedural/remedial; it changes punishments)