In an opinion released last week, the U.S. Court of Appeals for the Fourth Circuit came close to addressing the applicability of the Fair Sentencing Act of 2010 to certain defendants pending sentencing. Ultimately, the opinion is noteworthy only for a footnote on page 18. (Available here)
In Bullard, the court was faced with the question of whether the Fair Sentencing Act, which reduced mandatory sentencing disparities between defendants convicted of powder cocaine offenses and defendants convicted of crack cocaine offenses, applied retroactively to defendants sentenced before the FSA's enactment. As every other circuit confronted with this issue has done, the court refused to apply the FSA's changes retroactively to the defendant.
However, in footnote 5, the court noted:
"We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here."
Many defense attorneys, federal prosecutors and district judges await the Fourth Circuit's guidance on this important issue for defendants pending sentencing.