Tuesday, March 01, 2011
FSA applied retroactively
Kirk Redmond won a sentencing victory today in in U.S. v. Terez Warren, Case No. 10-20125-01 (D. Kan.), when Judge Vratil held that the Fair Sentencing Act (modifying the mandatory minimums to reduce the sentencing disparity between crack an powder cocaine) applied to Mr. Warren despite the fact that his offense conduct pre-dated the FSA.
The FSA, which became effective November 1, 2010, does not specifically include language supporting its retroactive application. Nonetheless, there are several arguments that the FSA should apply to those persons who committed their crimes before the law became effective but who are being sentenced afterwards. See U.S. v. Douglas, Case No. 09-202-P-H (D. Me. 2010) (applying the FSA retroactively).
In an oral ruling, Judge Vratil held that Judge Hornby's opinion in Douglas was persuasive. Judge Vratil further held that the language in U.S. v. Lewis, 625 F.3d 1224 (10th Cir. 2010), stating that the FSA is not retroactive did not apply to these facts, as sentencing was still pending in Mr. Warren's case. Redmond also argued that Lewis provides supportive dicta to applying the FSA to all pending sentencings. However, Judge Vratil did not decide this issue. Nonetheless, this is a very good win for Kirk and a good sign for anyone who practices federal criminal defense in Kansas City.