Fifth Circuit Remands Crack Case for Resentencing Under Fair Sentencing Act

In Hicks v. United States, No. 11-50608, the Fifth Circuit remanded a sentence where the defendant’s alleged conduct was before the enactment of the Fair Sentencing Act but his sentencing was after the enactment of the Fair Sentencing Act.

Hicks was arrested on April 8 and a search revealed 80 grams of crack cocaine.  His mandatory minimum was set on 20 years based on when he was arrested.  On August 3, 2010, the Fair Sentencing Act took effect.  The fair sentencing act increased the drug amounts necessary to trigger mandatory minimum sentences for crack offenses.  Hicks’ mandatory minimum would have been 10 years under the Fair Sentencing Act.

The judge held that the Fair Sentencing Act did not apply to defendants who had been accused of committing their crimes before the effective date of the Fair Sentencing Act even if their sentencing dates were after its enactment. The Supreme Court rejected that argument in Dorsey v. United States.  So now a person whose conduct allegedly happened before the date of the Act are eligible to receive the benefit of the Act if their sentencing happened after the Act was passed.

Hicks did not bring up that the Act should have been applied to his sentence on direct appeal. He sought certiorari from the Supreme Court who vacated and remanded it back to determine if the failure to apply the Act was plain error.

In order to show plain error, “an appellant must show (i) the existence of an error (ii) that is “clear or obvious,” (iii) that affects the appellant's substantive rights, and (iv) that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.””

The government conceded that the error has been met in this case. In light of Dorsey v. United States, there is unresolved clear error and that it violated Hicks’ substantial rights. This is because defendants who are subject to sentences under 3553 receive sentences far lower than defendants who are subject to mandatory minimums.

The prosecutor realized that this error affected the fairness, integrity and public reputation of judicial proceedings. The prosecutor agreed at sentencing when the prosecutor indicated that “[i]f the Supreme Court ultimately says that [the Fair Sentencing Act] should be retroactive to conduct that occurred like for this, before August 2010, then I can guarantee that all of those cases are going to be resentenced. Every single one.”

The Fifth Circuit Reversed, No. 11-50608.

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