USA v. Christopher Holcomb, No. 11-1558 (7th Cir. 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 24, 2011.
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 August 17, 2012 Before ILANA DIAMOND ROVNER, Circuit Judge DIANE P. WOOD, Circuit Judge TERENCE T. EVANS, Circuit Judge* Nos. 11-1558, 11-1559 & 11-1758 UNITED STATES OF AMERICA, Plaintiff-Appellant, Appeals from the United States District Court for the Central District of Illinois v. Nos. 10 CR 30058-4, 10 CR 30047-1 & 10 CR 30058-3 CHRISTOPHER HOLCOMB, PATRICK MORAN, and ANTHONY CLARDY, Defendants-Appellees. Richard Mills, Judge. ORDER Appellees Christopher Holcomb, Patrick Moran, and Anthony Clardy were each convicted of crack cocaine offenses (see 21 U.S.C. § 841(a)(1)) occurring prior to August 3, 2010, the effective date of the Fair Sentencing Act of 2010, 124 Stat. 2372 ( FSA ). The defendants were sentenced after the FSA took effect, however, and the district court applied the FSA in determining their sentences. The court ordered Holcomb to serve a * Circuit Judge Evans died on August 10, 2011, and did not participate in the decision of this case on remand from the Supreme Court. The case is now being resolved by a quorum of the panel under 28 U.S.C. § 46(d). 2 Nos. 11-1558, 11-1559 & 11-1758 Page 2 prison term of 50 months, Moran a term of 70 months, and Clardy a term of 33 months. The government appealed the sentences, contending that the district court erred in applying the FSA to conduct which occurred prior to the FSA s enactment. Pursuant to our decision in United States v. Fisher, 635 F.3d 336 (7th Cir. 2011), which held that the FSA applies only prospectively to conduct occurring after its enactment, we concluded in our order of July 7, 2011, that the district court had erred in relying on the FSA when sentencing these defendants. We therefore vacated the defendants sentences and remanded the cases for resentencing. See United States v. Holcomb, 657 F.3d 445, 445 (7th Cir. 2011) (denying sua sponte rehearing en banc). In Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012), the Supreme Court disagreed with our holding in Fisher and conclude[d] that Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. Subsequently, the Supreme Court granted the defendants petition for a writ of certiorari, vacated the judgment, and remanded the cases to this court for reconsideration in light of its decision in Dorsey. Holcomb v. United States, 2012 WL 2470076 (U.S. June 29, 2012). The parties have filed a joint Circuit Rule 54 position statement acknowledging, in view of Dorsey, that the district court correctly applied the FSA when it sentenced the defendants and requesting that we affirm the sentences that court imposed. We agree that this is the correct result in light of Dorsey. We therefore AFFIRM the sentences imposed on defendants Holcomb, Moran, and Clardy.
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