United States v. Charles, No. 12-50150 (4-15-14)(Fernandez with Graber and Murguia).
The defendant here was convicted of possession with intent to distribute crack. He was determined to be a career offender and sentenced under that provision. His appeal concerns the Fair Sentencing Act and guideline crack amendments 750 and 759. He loses. The defendant was sentenced before the FSA had opened the leniency door a crack. The 9th and all other circuits have held that the FSA is not retroactive. No different here. In this case, the 9th held emphatically that the FSA was prospective and was not a mandate to reduce past crack sentences. As for the guideline amendment for crack sentences, it doesn't apply to those sentenced as career offenders. The defendant here was sentenced as a career offender. The two provisions are mutually exclusive.