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All's Fair in Love, War, and Sentencing?

By Robyn Hagan Cain | Last updated on

Whether reminding you when to file a notice of appeal, or when to take your Benz for an oil change, your calendar controls your life.

Calendars can also control whether your client gets another shot at sentencing, according to the Sixth Circuit Court of Appeals. Take Stacy Allen's crack sentence, for example.

Allen pleaded guilty to unlawful possession with the intent to distribute crack cocaine. The district court sentenced Allen to a 210 month sentence on the crack cocaine charges, to run concurrently with the 120 month sentence he received on his conviction for being a felon in possession of ammunition.

Then, the Fair Sentencing Act came along.

The Fair Sentencing Act increased the amount of crack cocaine necessary to trigger certain mandatory minimum sentences, reducing the disparity between the punishments imposed for offenses involving crack versus powder cocaine. But the Act contains a caveat: The Act's "general savings statute" prevents "fairness" applying to sentencing that occurred before the Act's effective date.

And that's where the pesky calendar comes in.

In the Supreme Court's recent Dorsey v. United States decision, the Court clarified that the Fair Sentencing Act applies retroactively to all offenders sentenced after the statute's effective date, regardless of whether their crimes were committed prior to the FSA's enactment.

Unfortunately, Allen was sentenced on July 22, 2010. The Fair Sentencing Act became effective on August 3, 2010.

The Sixth Circuit Court of Appeals concluded that the general savings statute applied under its United States v. Carradine decision. Allen missed fairness by a matter of weeks.

While all may be fair in love, war, and (post-August 3, 2010) sentencing, defendants who had the misfortune of being sentenced before the magical effective date are out of luck.

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