• 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 its face, the FSA is silent on the issue of whether the Act applies to pre-enactment conduct; however, in numerous cases, defendants have argued successfully that the FSA does apply in all sentencings that occur after the FSA's enactment date, even if the offense conduct took place prior to that date. Favorable decisions on this issue include U.S. v. Douglas (1st Cir. May 31, 2011), U.S. v. Dixon (3d Cir. Aug. 9, 2011), and additional cases cited in this list compiled by Sentencing Resource Counsel. After initially opposing application of the FSA to post-enactment sentences for pre-enactment conduct, the government reversed course. On July 15, 2011 Attorney General Eric Holder issued a memo to all federal prosecutors stating that "the law requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after 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, the Eighth and Seventh Circuits have refused to reconsider contrary decisions in light of the government’s change in position. (See U.S. v. Holcomb (7th Cir. Aug. 24, 2011)). On November 28, 2011, the Supreme Court granted certiorari to consider this issue in two cases consolidated for argument, Hill v. U.S. (No. 11-5721) and Dorsey v. U.S. (No. 11-5683). Because the government agrees that the judgments below should be reversed, the Court has appointed amicus curiae to argue in support of the judgments. See Additional Resources section below for more on this issue.

• 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.

• History and overview of FSA: FAMM website.
  
  
• Application of the FSA to pipeline cases: Holder Memo (7/15/11); Government's Memo in Support of Motion to Remand for Resentencing in U.S. v. Bush; Opening Brief and Reply Brief in U.S. v. Jackson; Sentencing Resource Counsel List of District Court Cases Applying FSA; Sentencing Resource Counsel sample sentencing memo (1/6/11); motion, reply and oral argument summary in U.S. v. Santana; Prof. Doug Berman's Letters in Support of Application of FSA in Pipeline Cases; 11/17/10 Letter from Senators Durbin & Leahy to Eric Holder Urging Application of FSA to Pending Sentencings; 6/24/11 bill introduced by Representative Scott clarifying that the FSA applies to pending cases.
  
  
• Sentencing guideline amendment implementing the FSA: Sentencing Resource Counsel FSA Guideline Amendment Analysis; Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010; Defender Public Comment to the Commission.
  
  
• Defender Statement on Retroactive Application of the FSA Guideline Amendment and Defender Comment on Retroactivity of the FSA Guideline Amendment.
  

Note that the Commission has since undone many of these changes with its promulgation of the 2010 FSA guideline amendment (see above on this page).