Eleventh Circuit Court of Appeals - Published Opinions

Friday, November 16, 2012

Berry: FSA does not apply to defendants sentenced pre-FSA

In U.S. v. Berry, No. 12-11150 (Nov. 14, 2012), the Court held that a defendant sentenced in 2002, prior to the effective date of the Fair Sentencing Act (FSA), was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).

Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.

The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.

The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.