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Hill v. U.S., USSC No. 11-5721 / Edward Dorsey v. U.S., USSC No. 11-5683, cert granted 11/28/11

Question Presented (composed by Scotusblog): 

Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

HillScotusblog page; consolidated with Dorsey (lower court decision: United States v. Fisher, 635 F.3d 336 (7th Cir. 2011))

The Fair Sentencing Act of 2010, taking effect August 3, 2010, raised from 50 to 280 grams the amount of crack cocaine necessary to trigger a mandatory minimum of 10 years, and from 5 to 28 grams the amount needed to trigger a minimum of 5 years. Hill was found guilty of possessing 50 or more grams of crack with intent to distribute, the offense occurring before the Act took effect. The trial judge concluded that the Act did not apply retroactively and imposed 10 years, while noting he would have imposed much less if not for the mandatory minimum. Hill argued on appeal that as a matter of statutory construction (statutory text and legislative history) the Act should apply to anyone sentenced after enactment, even if the underlying crime was committed before. he thus seeks a reduction to the post-enactment mandatory minimum of 5 years. (Dorsey’s argument is the same, with the factual variation that although his crime predated enactment, his sentencing was post-enactment.) The arguments appear to be purely statutory in nature – whether the general federal savings statute, 1 U.S.C. § 109 (repeal of statute doesn’t “release or extinguish any penalty” unless expressly provided) prevents this Act from retroactive application. Not clear, in other words, that the outcome will necessarily have much if anything to say about state results. However, if the Court determines that reduction in a mandatory minimum isn’t tantamount to “release or extinguish,” then there might be an interesting discussion about retroactivity, with possible pertinence to state practice, though not binding.

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