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Court holds Fair Sentencing Act's crack sentencing amendments retroactive

In a monumental victory before the United States District Court for the Central District of California, Mark Tyrell Fowlkes, acting as his own attorney successfully argued that the reduced mandatory minimum sentences for crack offenses created by the Fair Sentening Act of 2010 (FSA) applied to his 2008 conviction for Distribution and Possession with Intent to distribute crack cocaine.

The FSA raised the amount of crack cocaine necessry to trigger a 5 year mandatory minimum sentence from 5 to 28 grams and a ten year mandatory minimum sentence from 10 to 280 grams. United States v. Fowlkes, ___ F.Supp.2d___ (C.D. California, July 1, 2011).

President Obama signed the FSA into law on August 3, 2010, but the law was silent on when these changes were to take effect. The government argued that the new mandatory minimums took effect only for people whose crimes occurred after the August 3, 2010 effective date of the FSA. Fowlkes argued that the new reduced mandatory minimums should be applied because his sentencing occurred after the passage of the FSA.

The California Court, citing strong language criticizing the government's approach in United States v. Baptist, ___ F.3d___ (9th Cir. 2011), as well as a May 31, 2011 decision out of the First Circuit in United States v. Douglas, ___ F.3d___  (1st Cir. 2011), holding the FSA retroactive to those cases sentenced after November 10, 2010, agreed with Mr. Fowlkes.

While no other case in the 9th Circuit has yet addressed the FSA's retroactivity, Mr. Fowlkes's victory provides powerful ammunition going forward in federal crack cocaine cases in federal court. Federal criminal defense attorneys will be paying close attention to these cases as they are handed down.

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