United States v. Romaill Cox , 476 F. App'x 91 ( 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NONPRECEDENTIAL DISPOSITION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 21, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge*
No. 11-1317
UNITED STATES OF AMERICA, ] Appeal from the United States District Court
Plaintiff-Appellant, ] for the Western District of Wisconsin.
]
v. ] No. 10 CR 85
]
ROMAILL COX, ] William M. Conley,
Defendant-Appellee. ] Chief Judge.
ORDER
Appellee Romaill Cox pleaded guilty to possessing with the intent to distribute 50
or more grams of crack cocaine. See 21 U.S.C. § 841(a)(1). At the time of the offense, that
quantity of crack cocaine mandated a 120-month minimum sentence. Shortly before Cox
pleaded guilty, however, Congress enacted the Fair Sentencing Act of 2010, 124 Stat. 2372
(“FSA”), which lowered the relevant mandatory minimum term to 60 months. The district
court determined that Cox was subject to the new, more lenient minimum term specified
by the FSA. See United States v. Cox, 2011 WL 92071 (W.D. Wis. Jan. 11, 2011). The court
*
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 No. 11-1317
ordered Cox to serve a prison term of 96 months. R. 31.
The government appealed the sentence, 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 8, 2011, that the district court in this case erred in applying the FSA. We
therefore vacated Cox’s sentence and remanded the case for resentencing.
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 Cox’s petition for a writ of certiorari,
vacated the judgment, and remanded the case to this court for reconsideration in light of its
decision in Dorsey. Cox v. United States, 2012 WL 2470069 (U.S. June 29, 2012).
The government has filed a Circuit Rule 54 position statement acknowledging, in
view of Dorsey, that the district court correctly applied the FSA when it sentenced Cox and
requesting that we affirm the 96-month sentence that court imposed. In his own Circuit
Rule 54 statement, Cox takes the same position.
We agree that this is the correct course of action in light of Dorsey. We therefore
AFFIRM Cox’s sentence.