6th Circuit Denies Retroactivity of the Fair Sentencing Act

• United States v. Marrero

The 6th Circuit decided Wednesday that the Fair Sentencing Act of 2010 is not retroactive to the date when a defendant commits an offense. The FSA was enacted to alleviate some of the disparities in sentencing for offenses involving crack cocaine and offenses involving powder cocaine. Specifically, the FSA raises the amounts of crack cocaine required to trigger a mandatory minimum sentence.


Marrero was convicted of possessing 27.25 grams of crack cocaine. He was sentenced on August 11, 2008 to 360 months (30 years) of incarceration. Marrero appealed and argued that the FSA, enacted on August 3, 2010, should apply retroactively. Without FSA amended guidelines, Marrero faced an incarceration range from a 10-year mandatory minimum sentence to a maximum life sentence. With FSA guidelines, Marrero faced no mandatory minimum and a maximum of 30 years.


The 6th circuit refused to apply the FSA retroactively to offence date stating:

"In United States v. Carradine 621 F.3d 575 (6th Cir. 2010), cert. denied, 131 S.Ct. 1706 (2011), this court determined that the Fair Sentencing Act's penalty provisions do not apply to offenses committed prior to their enactment, id at 580 ("The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time [the defendant] committed the crime in question.") Because Carradine is a prior published opinion of this court, we are bound by its pronouncement that the Fair Sentencing Act has no bearing on Marrero's case."

Because Marrero committed his offense prior to the enactment of the FSA, the 6th circuit denied his request for resentencing.


We discussed Chief Judge Curtis Collier's ruling in US v. Toney Robinson, Docket No. 1:10-CR-66 in February from the Eastern District of TN involving whether the FSA applied retroactively to those offenders who committed offenses before enactment, but were sentenced after enactment, here is the post. Today's opinion in Marrero clears up the issue of retroactivity of FSA to offence date but leaves open still other issues.  Read Judge Collier's opinion above for a full discussion.