United States v. McIntosh, No. 10-15894 (11th Cir. 2013)Annotate this Case
Due to a technical error in the original indictment and a more substantial mistake by the government in its handling of that error, no indictment was pending against defendant at the time of his sentencing. This caused defendant to challenge the power of the district court to sentence him at all. Defendant also challenged the length of his sentence due to the enactment of the Fair Sentencing Act of 2010 (FSA), Pub. L. 111-120, 2(a), 124 Stat. 2372, after he committed his offenses but before his sentencing. The court concluded that the district court retained the power to sentence defendant, and that the exercise of that power did not violate any of his constitutional rights or run afoul of the Federal Rules of Criminal Procedure. The sentence imposed, however, must be vacated because the district court did not apply the Sentencing Guidelines as revised by the FSA.