793 F. Supp. 2d 1048
S.D. Ohio2011Background
- Shull was convicted on two counts, conspiracy to possess with intent to distribute crack and possession with intent to distribute crack; on appeal, Count1 was reversed, Count2 affirmed; case remanded for resentencing.
- At trial, police found 52.9 grams of crack cocaine in a car containing Shull; Shull arrested on an outstanding warrant and the vehicle was searched.
- Shull originally received 121 months on Counts 1 and 2 to run concurrently; sentencing issues arose after the Sixth Circuit vacated Count1’s conviction.
- The case discusses crack/powder cocaine sentencing disparity, the 100:1 ratio, and critiques of mandatory minimums and guidelines leading to reform.
- The Fair Sentencing Act of 2010 (FSA) lowered the crack-to-powder ratio to 18:1 and directed the Sentencing Commission to adopt conforming guidelines; the FSA’s provisions took effect while Shull awaited sentencing, prompting a reconsideration of applicable law.
- The court ultimately applies the FSA—its amended Guidelines and the new mandatory minimums—to Shull's pending sentencing and imposes a 60-month sentence on Count 1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FSA applies to pending sentences | Carradine forecloses FSA for pending cases | Shull argues FSA applies to his post-enactment sentencing | FSA applies to Shull’s sentencing |
| Whether amended guidelines apply to Shull | Guidelines amended by FSA apply | Guidelines should not retroactively apply | Amended Guidelines apply; no ex post facto issue |
| Whether the FSA saving statute bars application | Saving Statute preserves old minimums | Saving Statute blocks retroactive application | Saving Statute does not bar application; FSA applies to pending cases |
| Whether mandatory minimums under FSA apply | Mandatory minimums should apply under FSA | Old minimums should remain due to pre-enactment conduct | FSA mandatory minimums apply to pending cases; sentence imposed under 60 months on Count 1 |
Key Cases Cited
- United States v. Carradine, 621 F.3d 575 (6th Cir.2010) (FSA not retroactive; cannot be applied to pre-enactment sentences)
- Kimbrough v. United States, 552 U.S. 85 (U.S. 2007) (Guidelines advisory; courts may consider deviations for policy reasons)
- United States v. Gillam, 753 F. Supp. 2d 683 (W.D. Mich.2010) (Carradine did not apply to not yet sentenced defendants)
- United States v. Marrero, 417 U.S. 653 (U.S. 1974) (Saving Statute does not override clear congressional directives in later statutes)
- Lockhart v. United States, 546 U.S. 142 (U.S. 2006) (Saving Statute read as part of subsequent enactments to give effect to Congress)
- Great Northern Ry. Co. v. United States, 208 U.S. 452 (U.S. 1908) (Saving Statute may be displaced by necessary implication of later law)