DocketNumber： 10-3450
Filed Date： 8/17/2012
Status： Non-Precedential
Modified Date： 10/30/2014
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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. 10‐3450 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff‐Appellee, Court for the Central District of Illinois. v. No. 09 CR 40095 JEFFREY J. HYDE, Michael M. Mihm, Defendant‐Appellant. Judge. O R D E R A jury convicted appellant Jeffrey J. Hyde of 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 Hyde committed the offense, see § 841(b)(1)(B)(iii) (2009). The district court rejected Hyde’s contention that he should be sentenced pursuant to the Fair Sentencing Act of 2010, 124 Stat. 2372 (“FSA”), which reduced the penalties for offenses involving crack cocaine and which took effect prior to his sentencing. * 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. 10‐3450 Hyde appealed his sentence, but in our order of June 13, 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 Hyde’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. Hyde v. United States, 2012 WL 2470066 (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 Hyde’s sentencing and that the error was not harmless. We agree, and we therefore VACATE Hyde’s sentence and REMAND for resentencing.