NONPRECEDENTIAL DISPOSITION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*
No. 11-1274
UNITED STATES OF AMERICA, ] Appeal from the United States District Court
Plaintiff-Appellee, ] for the Central District of Illinois
]
v. ] No. 10 CR 10036
]
BRETT A. MERRIMAN, ] Joe B. McDade,
Defendant-Appellant. ] Judge.
ORDER
Brett A. Merriman pleaded guilty to possessing with the intent to distribute 50
grams or more of crack cocaine, see
21 U.S.C. § 841(a)(1), and possessing a firearm
during a drug trafficking offense, see
18 U.S.C. § 924(c). He was ordered to serve a
prison term of 120 months on the drug charge, which was the statutory minimum term
required at the time Griffin committed the offense, see § 841(b)(1)(A)(iii) (2009), and a
consecutive term of 60 months on the firearm charge, which was also mandated by the
statute, see § 924(c)(1)(A)(i), for a total of 180 months. The district court rejected
Merriman’s contention that his sentence on the narcotics charge should be calculated
pursuant to the Fair Sentencing Act of 2010,
124 Stat. 2372 (“FSA”), which reduced the
*
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. 11‐1274
penalties for offenses involving crack cocaine and which took effect prior to his
sentencing.
Merriman appealed his sentence, but in our order of July 7, 2011, we summarily
affirmed the sentence in light of our decision in United States v. Fisher,
635 F.3d 336 (7th
Cir. 2011), which held that the FSA applied only prospectively to conduct occurring
after the statute’s enactment.
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 Actʹs new, lower mandatory minimums to apply to the post‐Act sentencing
of pre‐Act offenders.” Subsequently, the Supreme Court granted Merriman’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. Merriman v. United States,
2012 WL
2470070 (U.S. June 29, 2012).
The parties have filed a joint Circuit Rule 54 statement reflecting their agreement
that, in view of Dorsey, the district court committed procedural error at Merriman’s
sentencing with respect his sentence on the drug charge and that the error was not
harmless. We agree, and we therefore VACATE Merriman’s sentence and REMAND
for resentencing.
