In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2352
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY F ISHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-00161—Lynn Adelman, Judge.
No. 10-3124
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DWARD D ORSEY, S R.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:09-cr-20003—Michael P. McCuskey, Chief Judge.
A RGUED F EBRUARY 15, 2011—D ECIDED M ARCH 11, 2011
2 Nos. 10-2352 & 10-3124
Before R OVNER, W OOD , and E VANS, Circuit Judges.
E VANS, Circuit Judge. The Fair Sentencing Act of 2010
(FSA) might benefit from a slight name change: The Not
Quite as Fair as it could be Sentencing Act of 2010
(NQFSA) would be a bit more descriptive. But whether
the FSA should be amended to more closely resemble
its name is a matter for Congress. We can do nothing
about it at this time.
The FSA increased the drug quantities necessary to
trigger mandatory minimum sentences under the Con-
trolled Substances Act and the Controlled Substances
Import and Export Act. Prior to the effective date
(August 3, 2010) of the FSA, the amount of cocaine neces-
sary to bring the mandatory minimum sentences into
play was based on what is now viewed as the flawed 100:1
ratio of crack vs. powder cocaine. For crack cocaine,
the FSA increased the amount from 5 to 28 grams for
activating the five-year mandatory minimum term. For
the ten-year mandatory minimum, the threshold amount
jumped from 50 to 280 grams. But the problem, from
the point of view of the two defendants in this case, is
that the FSA is not retroactive. It applies only to
defendants who are sentenced based on conduct that
took place after August 3, 2010.
Anthony Fisher pled guilty in Wisconsin, in February
2010, to one count of conspiracy to distribute crack. A
presentence report stated that he was responsible for
between 150 and 500 grams of crack. It recommended a
140 to 175 months guideline range. Fisher disputed this,
claiming he was responsible for only 50 to 150 grams of
crack and the proper guideline range was 120 to 150
Nos. 10-2352 & 10-3124 3
months. The district judge declined to resolve the
quantity dispute and sentenced Fisher to the 120-month
mandatory minimum based on 50 or more grams of crack.
Judgment was entered on June 2, 2010. Fisher filed a
notice of appeal the next day.
Fisher claims that the FSA should apply because his
appeal was pending on August 3, 2010, when the Act
went into effect. Fisher asks us to apply the FSA retro-
actively to his sentence. However, as he acknowledged
at oral argument, his case falls squarely within the ambit
of our recent opinion in United States v. Bell, 624 F.3d
803 (7th Cir. 2010). In Bell, we were also dealing with
a defendant who had been convicted and sentenced
and had an appeal pending when the FSA went into
effect. We found that the general federal savings statute,
1 U.S.C. § 109, applies to the FSA and prevents it from
operating retroactively. 624 F.3d at 815.
Fisher asks us to rethink Bell. However, he makes this
suggestion based not on case law, but on his own sug-
gested interpretations of the FSA and the application of
the savings statute thereto. We are not persuaded and
decline to stray from our recent precedent in Bell. We
further note that our sister circuits have likewise
found that the savings statute bars retroactive application
of the FSA. See United States v. Gomes, 621 F.3d 1343, 1346
(11th Cir. 2010); United States v. Carradine, 621 F.3d 575,
580 (6th Cir. 2010).
The appeal of our other defendant, Edward Dorsey,
presents a slight wrinkle because he was sentenced after
the FSA went into effect. On June 3, 2010, Dorsey pled
guilty to possessing 5.5 grams of crack cocaine with
4 Nos. 10-2352 & 10-3124
intent to distribute, in Kankakee, Illinois, on August 6,
2008. Because he had a prior felony drug conviction, the
mandatory minimum 10-year term was in play. Under
the FSA, however, Dorsey would have had to possess
at least 28 grams of crack in addition to the prior
felony drug conviction to trigger the 10-year mandatory
minimum. Dorsey was sentenced on September 10, 2010.
At sentencing, the district judge declined to apply the
FSA to Dorsey’s case, saying, “in this case the crime
that you pled guilty to was . . . two years before the
President signed the legislation.” Dorsey was sentenced
to 120 months.
Dorsey argues that, even if the savings statute prevents
retroactive application of the FSA, the relevant date for
a retroactivity analysis is the date of sentencing, not
the date of the commission of the criminal act, and there-
fore the FSA should have applied to him. Dorsey
suggests that, in keeping with congressional intent and
for reasons of fairness, we should distinguish someone
in his situation from that of the defendant in Bell,
and apply the FSA to all defendants sentenced after
August 3, 2010.
In Bell we held that the savings statute prevents the
FSA from “operating retroactively absent any indication
from Congress. And since the FSA does not contain
as much as a hint that Congress intended it to apply
retroactively,” we declined to apply it to Mr. Bell. 624
F.3d at 815. But Dorsey argues, rather creatively, that
when considering applicability of a savings statute, we
will apply the statute and deny retroactivity unless Con-
gress suggests otherwise either by “express declaration
Nos. 10-2352 & 10-3124 5
or necessary implication.” Great Northern Railway Co. v.
United States, 208 U.S. 452, 465 (1908). Dorsey then
suggests that, although there is no express declaration
here, there is necessary implication that the FSA must be
applied retroactively—at least as to sentences imposed
after August 3, 2010, regardless of when the criminal
conduct took place.
Specifically, Dorsey points to the fact that the FSA
expressly urged the Sentencing Commission to amend
the guidelines on an emergency basis, and required the
amendments to be adopted by November 1, 2010. He
argues that this is evidence of the implicit will of
Congress that the FSA be as speedily and widely imple-
mented as possible. Further, he points to statements of
various legislators urging the adoption of the FSA as the
means to correct the long-standing unfairness in crack
cocaine sentences, and urging the application of the FSA
to all defendants who had not been sentenced as of
passage of the FSA, regardless of whether their crim-
inal conduct occurred before this date.
In weighing this as potential evidence of a necessary
implication that Congress wanted the FSA to be applied
retroactively, we are mindful of the pitfalls of relying on
legislative history. Although we may look for statements
which can “plausibly be read as reflecting any general
agreement,” Landgraf v. USI Film Products, 511 U.S. 244,
262 (1994), cherry-picked statements made by pro-
ponents of the legislation cannot be relied upon as in-
dications of the will of Congress.
Debate surrounding the crack cocaine sentencing
scheme and the infamous “100:1 ratio” has been raging
6 Nos. 10-2352 & 10-3124
for years, and there is strong rhetoric to be found on
either side. The FSA is compromise legislation and must
be viewed as such. Given the long-standing debate sur-
rounding, and high-level congressional awareness of,
this issue, we hesitate to read in by implication any-
thing not obvious in the text of the FSA. We believe that
if Congress wanted the FSA or the guideline amend-
ments to apply to not-yet-sentenced defendants con-
victed on pre-FSA conduct, it would have at least
dropped a hint to that effect somewhere in the text of
the FSA, perhaps in its charge to the Sentencing Com-
mission. In other words, if Congress wanted retroactive
application of the FSA, it would have said so.
Given the absence of any direct statement or necessary
implication to the contrary, we reaffirm our finding that
the FSA does not apply retroactively, and further find
that the relevant date for a determination of retroactivity
is the date of the underlying criminal conduct, not the
date of sentencing.
We have sympathy for the two defendants here, who
lost on a temporal roll of the cosmic dice and were sen-
tenced under a structure which has now been recognized
as unfair. However, “[p]unishment for federal crimes is
a matter for Congress, subject to judicial veto only
when the legislative judgment oversteps constitutional
bounds.” Warden, Lewisburg Penitentiary v. Marrero, 417
U.S. 653, 664 (1974).
We close with one final observation. Because crack
cocaine quantity is viewed as a sentencing factor rather
than a charged element of the offense, it is possible that
a defendant could be convicted for conduct taking place
Nos. 10-2352 & 10-3124 7
both before and after August 3, 2010. Were this the case,
any conduct committed after August 3, 2010 would
necessarily be considered within the confines of the FSA.
But Dorsey’s sentence was based entirely on conduct
that occurred two years prior to August 3, 2010. He
can, therefore, not get the kind of relief that may be
available to a defendant whose criminal conduct
straddles August 3, 2010. A future defendant in that
situation may very well be able to benefit, at least in
part, from the FSA.
For these reasons, the judgments as to Fisher and
Dorsey are A FFIRMED.
3-11-11