688 F.3d 74
2d Cir.2012Background
- Highsmith pled guilty to conspiracy to distribute crack cocaine and to a firearm offense under § 924(c).
- The district court sentenced Highsmith to ten years on each count, consecutive, with five years of supervised release.
- The Fair Sentencing Act reduced crack-powder sentencing disparities and became law in 2010.
- Dorsey v. United States held the FSA applies retroactively to certain pre-FSA-crack offenses when sentencing after the FSA became law.
- This appeal addresses whether Highsmith’s sentence must be vacated and remanded for resentencing under Dorsey, and whether the district court erred in adopting the PSR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Dorsey retroactively apply the FSA to Highsmith? | Highsmith | Government | Yes; vacate and remand for resentencing under Dorsey |
| Did the district court plainly err by not expressly adopting PSR facts for § 924(c)(1)(A)(iii)? | Highsmith | Government | No plain error; adoption of PSR facts suffices |
Key Cases Cited
- Dorsey v. United States, 132 S. Ct. 2321 (Supreme Court 2012) (FSA retroactivity to post-FSA sentencing of pre-FSA crack offenses)
- United States v. Acoff, 634 F.3d 200 (2d Cir. 2011) (circuit prior view on FSA; abrogated by Dorsey)
- United States v. Olano, 507 U.S. 725 (Supreme Court 1993) (plain-error review standard)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc review of sentencing rulings; procedural and substantive errors)
- United States v. Eyman, 313 F.3d 741 (2d Cir. 2002) (adoption of PSR findings supports sentence)