United States v. Kalvin Thomas , 471 F. App'x 540 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1582
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Kalvin Thomas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 16, 2011
Filed: July 6, 2012
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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
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PER CURIAM.
Kalvin Thomas appeals his sentence for possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and punishable
under 21 U.S.C. § 841(b)(1). The offense occurred on March 1, 2010, and Thomas
was indicted in April 2010. The Fair Sentencing Act (FSA), which amended the
threshold quantities of crack cocaine triggering mandatory minimum sentences under
§ 841 and mandated amendments to the United States Sentencing Guidelines, became
effective on August 3, 2010. On November 5, 2010, Thomas pleaded guilty and he
was sentenced on February 28, 2011.
At the sentencing hearing, the district court calculated a Guidelines sentencing
range of 188 to 235 months' imprisonment. Thomas urged the district court to apply
the FSA to his sentence, which would have lowered his range. Ruling that the FSA
did not apply to conduct predating the Act's effective date, the district court sentenced
Thomas to 188 months' imprisonment. At the time of sentencing, Thomas's FSA
retroactivity argument was foreclosed by our decision in United States v. Sidney, 648
F.3d 904, 910 (8th Cir. 2011) (holding that "the FSA is not retroactive, even as to
defendants who were sentenced after the enactment of the FSA where their criminal
conduct occurred before the enactment"). The Supreme Court recently rejected the
reasoning of Sidney, ruling that the FSA applies retroactively to those who committed
criminal conduct before, but who were sentenced after, its passage. Dorsey v. United
States, No. 11-5683, 2012 WL 2344463, at *9-15 (June 21, 2012). Accordingly, we
reverse and remand for resentencing, pursuant to Dorsey.
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