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United States of America v. Kenneth Dixon

August 9, 2011

UNITED STATES OF AMERICA
v.
KENNETH DIXON, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-08-cr-00456-001) District Judge: Honorable John E. Jones, III

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued May 24, 2011

Before: FUENTES, FISHER and NYGAARD, Circuit Judges.

OPINION OF THE COURT

The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the "FSA" or the "Act") apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards. We hold that the FSA does apply in this instance. The language of the Act reveals Congress‟s intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory. Therefore, we will vacate the judgment of the District Court and remand for resentencing.

I.

From November 2007 until December 2008, Dixon conspired to distribute approximately fifty-one grams of crack cocaine. On March 19, 2010, he pled guilty to conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846, and receipt and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). At the time of Dixon‟s offense, the Anti-Drug Abuse Act of 1986 (the "1986 Act") mandated penalties for powder cocaine and crack cocaine according to a 100:1 ratio, creating a pronounced disparity between offenders convicted of possessing crack cocaine and those convicted of possessing powder cocaine. More precisely, a conviction involving five grams of crack cocaine resulted in the same five-year mandatory minimum term of imprisonment as a conviction involving 500 grams of powder cocaine. Similarly, a conviction involving fifty grams of crack cocaine resulted in the same ten-year mandatory minimum term of imprisonment as a conviction for 5,000 grams of powder cocaine. 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (2006).

The initial justification for this difference in treatment -- that crack cocaine was more dangerous and addictive than powder cocaine -- repeatedly came under attack as the implications of the disparity emerged. See Kimbrough v. United States, 552 U.S. 85, 97-99 (2007) (describing the United States Sentencing Commission‟s criticism of the 100:1 ratio). This controversy resulted from data suggesting that African-American defendants received disproportionately higher sentences for crack cocaine offenses than white defendants convicted of powder cocaine offenses, even though the drugs were essentially the same substance. See generally Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?, 45 Wash. U. J. Urb. & Contemp. L. 121 (1994). The Sentencing Commission identified major problems with the crack/powder disparity, namely that the assumptions regarding violence and addictiveness were unfounded, that it did not effectively punish major drug traffickers, and that it imposed severe sentences primarily upon African-American offenders. See Kimbrough, 552 U.S. at 98 (summarizing the Sentencing Commission‟s efforts to alter 100:1 crack/powder disparity).

Prior to Dixon‟s sentencing hearing, however, Congress passed the FSA, and it became law when the President signed it on August 3, 2010. See Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1151 n.1 (3d Cir. 1989) ("Where no specific effective date is provided, the provision or statute becomes effective upon the date the president signs the bill."). Congress described the FSA as "[a]n Act To restore fairness to Federal cocaine sentencing." Fair Sentencing Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010). The FSA reduced the crack/powder ratio to approximately 18:1. According to the Act, the five-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses twenty-eight grams and the ten-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses 280 grams (the triggers for powder cocaine remain 500 grams and 5,000 grams, respectively). Id.

Recognizing the need to connect the new mandatory minimum penalties with the Sentencing Guidelines, Section 8 of the Act vests the Sentencing Commission with emergency authority to:

(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act . . . and

(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.

Id. § 8. New, FSA-compliant, sentencing Guidelines implementing the 18:1 ratio went into effect on November 1, 2010. See Notice of a Temporary, Emergency Amendment to Sentencing Guidelines and Commentary, 75 Fed. Reg. 66,188 (Oct. 27, 2010); U.S.S.G. supp. to app. C, amend. 748 (Supp. 2010) (amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010).*fn1 Additionally, Congress directed the Sentencing Commission to "study and submit to ...


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