Between a Rock and a Hard Place: Ensuring that Defendants Incorrectly Sentenced between the Fair Sentencing Act of 2010 and United States v. Dorsey Achieve Re-Sentencing

Abstract

The Fair Sentencing Act of 2010 (FSA) significantly reduced the disparity between crack and powder cocaine sentences in America. After the FSA was enacted, courts disagreed about whether defendants who committed their crimes before the FSA was passed but were sentenced after the FSA were passed were eligible for sentencing under the FSA. In Dorsey v. United States, the Supreme Court resolved this disagreement by holding that the FSA applies to all defendants sentenced after the FSA’s enactment regardless of the date of their offense. This Note focuses on the thousands of defendants who were incorrectly sentenced according to the pre-FSA sentencing laws between the FSA’s enactment and Dorsey. Those defendants are entitled to re-sentencing under the FSA but are being denied re-sentencing at every turn. This Note discusses the three most common methods for seeking re-sentencing under the FSA: direct appeal, claims of ineffective assistance of counsel at the defendant’s initial sentencing, and motions for re-sentencing due to a retroactive change in the Sentencing Guidelines (“§ 3582 motions”). The first two methods are consistently foreclosed to defendants seeking re-sentencing under the FSA. The third is the subject of disagreement in the courts. This Note proposes that courts may re-sentence defendants under the FSA through § 3582 motions. Importantly, such a course may be the only way to ensure that these defendants have a viable way to seek the re-sentencing to which they are entitled.

Keywords: Fair Sentencing Act, United States v. Dorsey, Re-sentencing, 18 U.S.C. § 3582, Freeman v. United States