Opinion
Case No. 2:05-cr-70-2.
September 23, 2010
ORDER
Defendant has filed a motion for a modification of his sentence, arguing that his sentence should be reduced by retroactive application of the Fair Sentencing Act of 2010. Defendant's previous motion to reduce his sentence by two levels based on new amendments to the United States Sentencing Guidelines ("U.S.S.G.") applicable to cocaine base offenses was denied because defendant's five-year sentence on the conspiracy offense under 21 U.S.C. § 846 and § 841(b)(1)(B)(iii) charged in Count 1 of the indictment was the mandatory minimum term of incarceration. See U.S.S.G. § 1B1.10(a)(2)(B) and Application Note 1(a).
The Fair Sentencing Act is silent regarding whether the new threshold quantities for mandatory minimum terms of incarceration in cocaine base cases apply to conduct which occurred prior to its enactment on August 3, 2010. Therefore, the new law applies only prospectively to offense conduct occurring on or after the date of enactment. See 1 U.S.C. § 109; Warden v. Marrero, 417 U.S. 653 (1974); United States v. Carradine, ___ F.3d ___, 2010 WL 3619799 at *4-5 (6th Cir. 2010) (since the Fair Sentencing Act of 2010 contains no express statement that it is retroactive, court must apply the penalty provision in place at the time defendant committed the offense in question).
Since the offenses in the instant case were committed prior to the effective date of the Fair Sentencing Act, the Act has no application in the instant case, and defendant's motion for reduction of sentence is denied.
Date: September 23, 2010