Background

• Tickles and Gibson were convicted of possession with intent to distribute crack cocaine and sentenced to the pre-FSA minimum of 120 months.
• Tickles’ conviction involved 50 grams of crack cocaine; Gibson pled guilty to five grams of crack cocaine and related charges.
• The Fair Sentencing Act of 2010 reduced crack/powder penalties, creating a contested issue of retroactivity for conduct pre-enactment but sentencing after enactment.
• The government shifted positions: initially opposing retroactive application, later requesting remand to apply the FSA retrospectively.
• The court considered the Savings Statute, 1 U.S.C. § 109, and held no express repeal of prior thresholds, so the old law applies to pre-enactment conduct.
• Dissent argues the FSA should apply to all offenders sentenced after enactment, regardless of when conduct occurred.

Issues

Key Cases Cited

• United States v. Doggins, 633 F.3d 379 (5th Cir.2011) (FSA not retroactive to pre-enactment sentencing)
• United States v. Lewis, 625 F.3d 1224 (10th Cir.2010) (retroactivity rejected)
• United States v. Brewer, 624 F.3d 900 (8th Cir.2010) (retroactivity denied)
• United States v. Bell, 624 F.3d 803 (7th Cir.2010) (retroactivity denied)
• United States v. Gomes, 621 F.3d 1343 (11th Cir.2010) (retroactivity denied)
• United States v. Carradine, 621 F.3d 575 (6th Cir.2010) (retroactivity denied)
• United States v. Dixon, 648 F.3d 195 (3d Cir.2011) (retroactivity denied)
• United States v. Rojas, 645 F.3d 1234 (11th Cir.2011) (retroactivity denied)
• United States v. Douglas, 644 F.3d 39 (1st Cir.2011) (retroactivity denied)
• United States v. Fisher, 635 F.3d 336 (7th Cir.2011) (retroactivity denied)
• United States v. Acoff, 634 F.3d 200 (2d Cir.2011) (retroactivity denied)
• United States v. Spires, 628 F.3d 1049 (8th Cir.2011) (retroactivity denied)