United States v. Derek Griffin , 476 F. App'x 88 ( 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NONPRECEDENTIAL DISPOSITION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*
No. 10-3719
UNITED STATES OF AMERICA, ] Appeal from the United States District
Plaintiff-Appellee, ] Court for the Central District of Illinois.
]
v. ] No. 10 CR 10019
]
DEREK GRIFFIN, ] Joe Billy McDade,
Defendant-Appellant. ] Judge.
ORDER
Derek Griffin pleaded guilty to possessing with the intent to distribute five grams or
more of crack cocaine, see 21 U.S.C. § 841(a)(1), and he was sentenced to a prison term of
120 months, the statutory minimum term required at the time Griffin committed the
offense, see § 841(b)(1)(B)(iii) (2009). The district court rejected Griffin’s contention that he
should be sentenced pursuant to the Fair Sentencing Act of 2010, 124 Stat. 2372 (“FSA”),
*
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. 10-3719
which reduced the penalties for offenses involving crack cocaine and which took effect
prior to his sentencing.
Griffin 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
Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act
offenders.” Subsequently, the Supreme Court granted Griffin’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. Griffin v. United States, 2012 WL 2470071 (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 Griffin’s sentencing
and that the error was not harmless. We agree, and we therefore VACATE Griffin’s
sentence and REMAND for resentencing.