                Case: 11-16048        Date Filed: 04/09/2013      Page: 1 of 5


                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-16048
                               ________________________

                        D.C. Docket No. 1:08-cr-21104-DMM-4



UNITED STATES OF AMERICA,

                             Plaintiff - Appellee,

versus

ERICK HINDS,
a.k.a. “E”,

                             Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (April 9, 2013)

Before DUBINA, Chief Judge, BARKETT, and KLEINFELD, ∗ Circuit Judges.

PER CURIAM:

         ∗
           Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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          Erick Hinds, originally sentenced following his conviction by a jury of

conspiring to possess with intent to distribute 50 grams or more of cocaine base

(crack cocaine)1, was resentenced after this court vacated his original sentence

upon finding that the drug amount attributed to Hinds for sentencing purposes was

too speculative and remanded to the district court for resentencing. The district

court then imposed a sentence of 120 months for his crack cocaine conviction,

which Hinds now appeals. The district court held that the Fair Sentencing Act

(“FSA”), which raised the drug quantities required to trigger mandatory minimum

sentences for certain crack cocaine offenses, did not apply to his resentencing and

denied Hinds the benefit of the Act’s reduced mandatory minimum sentence. After

careful review, we agree with both Hinds and the government that the FSA applies

to defendants whose offenses occurred prior to August 3, 2010, the date on which

the FSA took effect, but who were resentenced after August 3, 2010. 2

          The narcotics offenses for which Hinds was convicted occurred during 2007

and 2008, and Hinds’s first sentencing took place on January 5, 2010. Prior to

resentencing, Hinds and the government agreed that the drug amounts attributable

to Hinds included 65.19 grams of crack cocaine. Hinds was resentenced on

December 12, 2011, at which time Hinds sought application of the FSA’s new
          1
              Hinds was also convicted of other narcotics and firearms offenses not relevant to this
appeal.
          2
        The government now agrees that the FSA should have applied to Hinds’s resentencing
and now characterizes as a mistake its contention at the time of resentencing that the FSA did not
apply.
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mandatory minimums relating to crack cocaine. Specifically, the FSA raised from

50 grams to 280 grams the amount of crack cocaine necessary to trigger the 10-

year mandatory minimum sentences, and raised from 5 grams to 28 grams the

amount necessary to trigger the 5-year minimum. See FSA, Pub. L. No. 111-220,

124 Stat. 2372 (2010). Application of the FSA to Hinds’s resentencing would have

reduced his mandatory sentence for conspiracy to possess with intent to distribute

65.19 grams of crack cocaine from 120 months to 60 months.

      The district court ruled that the FSA did not apply to Hinds’s resentencing

and applied the pre-FSA 120-month mandatory minimum for his crack cocaine

offense. Specifically, the district court determined that it would be unfair to grant

Hinds a reduced mandatory minimum sentence when his codefendants were

sentenced under the pre-FSA 120-month mandatory minimum. Consequently,

Hinds received a sentence of 180 months, consisting of the 120-month mandatory

minimum and a consecutive 60 months relating to his firearms offense. However,

the district court noted that, in the event this Court were to hold that the FSA did

apply to Hinds, his guideline range for the narcotics convictions was 78 to 97

months, and the court would sentence him at the low end of that range.

      Subsequent to the resentencing, the Supreme Court held in Dorsey v. United

States that “Congress intended the Fair Sentencing Act’s new, lower mandatory

minimums to apply to the post-Act sentencing of Pre-Act offenders.” 567 U.S. __,


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132 S. Ct. 2321, 2335 (2012). The Court expressly addressed the concern

expressed by the district court in this case—that a disparity would exist between

two defendants whose offenses were committed at the same time, but who were

sentenced at different times—and found that disparity acceptable. “[T]hose

disparities, reflecting a line drawing effort, will exist whenever Congress enacts a

new law changing sentences. . . . [W]e conclude that his particular new disparity

(between those pre-Act offenders already sentenced and those not yet sentenced as

of August 3) cannot make a critical difference.” Id.

       While we have applied Dorsey in vacating the sentences of defendants who

were sentenced post-FSA for pre-FSA offenses, United States v. Hudson, 685 F.3d

1260 (11th Cir. 2012) (en banc), we have not explicitly addressed whether the FSA

applies to a de novo resentencing following an initial pre-August 3, 2010

sentencing. We now hold that there is no meaningful difference between an initial

sentence and a resentencing post-Act, and that the FSA applies in both cases. 3

The “general rule is that a defendant should be sentenced under the law in effect at

the time of sentencing,” Untied States v. Grimes, 142 F.3d 1342, 1351 (11th Cir.

1998) and when a sentence is vacated, there is no sentence in effect and

       3
          Hudson further compels the result in this case, as that case involved a defendant whose
initial sentence was vacated, not on direct appeal, but pursuant to a § 2255 motion, based on the
district court’s conclusion that he had been denied effective assistance of counsel at sentencing.
United States v. Hudson, 727 F. Supp. 2d 1376, 1381 (S.D. Fl. 2010). The district court refused
to apply the FSA at his resentencing, and while this Court initially upheld that determination,
United States v. Hudson, 426 F. App’x 748, 750 (11th Cir. 2011), we ultimately vacated and
remanded. Hudson, 865 F.3d at 1260.
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resentencing is required. United States v. Veteo, 980 F.2d 697, 698 (11th Cir.

1993). Thus, at the time a defendant is resentenced, he is in a materially

indistinguishable position from the defendant in Dorsey, and Dorsey’s analysis is

equally applicable.

      Accordingly, we now vacate Hinds’s sentence and remand to the district

court for resentencing consistent with this opinion.

      VACATED and REMANDED.




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