DEFENDER SERVICES OFFICE
TRAINING DIVISION





CRACK COCAINE SENTENCING >
FAIR SENTENCING ACT OF 2010


  • Significant Provisions of the FSA: On August 3 the Fair Sentencing Act of 2010 took effect, reducing sentences for crack cocaine offenses. Significant provisions include:

    • Twenty-eight grams of crack cocaine will now trigger a five-year mandatory minimum prison sentence, and 280 grams of crack will trigger a mandatory minimum ten-year sentence.
    • The five-year mandatory minimum for simple possession of crack cocaine has been eliminated.
    • Based on the new mandatory minimums, the 100 to 1 sentencing ratio has been reduced to about 18 to 1
    • Penalties for what are deemed serious cases have increased.
    • Application to pre-enactment conduct:  On July 15, 2011 Attorney General Eric Holder issued a memo to all federal prosecutors stating that the FSA "requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after [the Act's enactment date of] August 3, 2010, regardless of when the offense conduct took place."  See Holder Memo (7/15/11) (7/15/11). Notwithstanding the issuance of the Holder memo, a Circuit split on this issue persisted until June 21, 2012, when the Supreme Court handed down its opinion in Dorsey v. United States (No. 11-5683) and Hill v. United States (No. 11-5721).  In a 5-4 decision, the majority agreed that the FSA's new, lower mandatory minimums for crack cocaine apply to the post-Act sentencing of pre-Act offenders.  See Additional Resources section below for background documents related to this issue.

  • Sentencing Guidelines Implementing the FSA: To implement the directives set forth in the FSA, the Sentencing Commission promulgated a temporary emergency amendment of the sentencing guidelines, which took effect on November 1, 2010 and is published in the Supplement to the Federal Sentencing Guidelines Manual and Appendices (2010) The amendment does the following:

    • Keys the FSA's new mandatory minimum levels to base offense levels of 26 and 32, rather than the pre-amendment levels of 24 and 30.

    • Adds a series of aggravating factors for all drug types. Enhancements include a 2-level increase if the defendant used, threatened or directed the use of violence; bribed or attempted to bribe a law enforcement officer; or maintained a premises to distribute or manufacture drugs. The amendment also includes a 2-level increase if "the defendant received an adjustment under 3B1.1 (Aggravating Role) and the offense involved 1 or more [super-aggravating] factors." For more on these enhancements see Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010.

    • For defendants with a minimal role in the offense, the amendment provides for a cap of 32 on the base offense level, and a 2-level reduction for defendants who have minimal knowledge of the offense, did not profit from it and were motivated by, among other things, fear or family pressure.

    On April 6, 2011, the Sentencing Commission promulgated a permanent amendment implementing the directives of the FSA. The Commission sent the amendment to Congress on May 1, 2011 and, absent Congressional action, the amendment as written will take effect on November 1, 2011. The permanent amendment re-promulgates the temporary emergency amendment without change, except for the new Application Note 28 (relating to the new enhancement for maintaining a premises). The Commission has voted to apply the amendment retroactively, setting November 1, 2011 as the effective date of retroactivity. See this press release and the Reader-Friendly Text of the Retroactivity Amendment for further information.