The Eleventh Circuit released two opinions today granting en banc review in criminal cases relating to the Fair Sentencing Act. See HERE and HERE.
In U.S. v. Rojas, the court will consider the appeal en banc and vacated the panel's opinion released on September 7, 2011 and published at 645 F.3d 1234. That order granting en banc review is available HERE. The now vacated panel opinion in this appeal began:
Arthur Smith appeals his 127-month sentence after pleading guilty to possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). He contends that an intervening decision shows that the district court erred by failing to apply the Fair Sentencing Act of 2010 (FSA) in determining his sentence. The government responds that, regardless of the merit of Smith's contention, he waived his right to appeal his sentence and that waiver covers this claim. We hold that FSA claims, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver.
In U.S. v. Hudson, the court will consider the appeal en banc and vacated the panel's unpublished opinion released on May 11, 2011. The panel opinion is available HERE and the order granting en banc review is available HERE. This panel opinion began:
Charles Levern Hudson appeals his 240-month, mandatory-minimum sentence for (1) possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and (2) possession with intent to distribute 5 grams or more of cocaine base, in violation of § 841(a)(1), (b)(1)(B)(iii). He argues that the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), which was enacted after his offense conduct and conviction but before his sentencing, retroactively lowered the statutory mandatory minimum sentence for his offense. In particular, he contends that our statement to the contrary in United States v. Gomes, 621 F.3d 1343 (11th Cir. 2010), cert. denied, (U.S. Apr. 4, 2011) (No. 10-9271), is dicta that we are not obligated to follow here. For the reasons set forth below, we affirm.