United States v. Christopher Holcomb , 476 F. App'x 87 ( 2012 )

NONPRECEDENTIAL DISPOSITION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, Appeals from the United States District Court
Plaintiff-Appellant, 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 Richard Mills,
ANTHONY CLARDY, Judge.
Defendants-Appellees.
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.