Consistent with the Third Circuit’s decision in United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011) , the Court held in Dorsey v. United States and Hill v. United States, 2012 WL 2344463 (June 21, 2012), that the Fair Sentencing Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. The Court cited six factors demonstrating Congressional intent to apply the new penalties retroactively: (1) The saving statute permits Congress to apply the new penalties without expressly saying so, where “the “plain import” or “fair implication” of the new statute point clearly in that direction”; (2) the SRA “sets forth a special and different background principle in § 3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter;” (3) the FSA implies that Congress intended to follow that principle, noting the Act’s mandate that the Guidelines “achieve consistency with other guideline provisions and applicable law,”referring to the law as changed by the FSA; (4) applying the old mandatory minimums to post-FSA sentencings (of pre-FSAoffenders) would create sentencing disparities of a kind the statutes were meant to prevent; (5) not applying the new penalties would create a new set of disproportionate sentences; and (6) the lack of any “countervailing considerations that would make a critical difference.”
With respect to Mr. Dorsey, the new Act's lower minimums also apply, regardless of the fact that he was sentenced between that FSA date on enactment and November 1, 2010, the effective date of the new Guidelines.