                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                    No. 10-4650
                                   _____________

                           UNITED STATES OF AMERICA

                                          v.

                                  MARIO HAMLIN,

                                                    Appellant.


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 2-09-cr-00181-001)
                     District Judge: Honorable Arthur J. Schwab


                       Submitted Under Third Circuit LAR 34.1(a)
                                  on October 27, 2011

               Before: FISHER, VANASKIE and ROTH, Circuit Judges

                             (Opinion filed: May 16, 2012)



                                     OPINION


ROTH, Circuit Judge:

      In this appeal, we must determine whether a criminal defendant sentenced after the

enactment of the Fair Sentencing Act of 2010 (FSA) for crimes committed before that
date should be sentenced under the more lenient terms of the FSA. As explained below,

we have already concluded that the FSA must be applied in such a situation.

       On July 8, 2010, Mario Hamlin pleaded guilty to two counts of distribution and

possession with intent to distribute cocaine base in violation of 21 U.S.C. § 846. Count I

was based on a transaction on January 16, 2008, in which Hamlin sold 48.9 grams of

crack cocaine to a confidential source who was working with the Drug Enforcement

Agency. Count II was based on a transaction that occurred approximately two weeks

later on January 31, 2008, in which Hamlin sold 65.3 grams of crack cocaine to the same

source.

       At that time, penalties for Hamlin’s offenses were controlled by the Anti-Drug

Abuse Act of 1986. 21 U.S.C. § 841(b)(1) (2006). Under that law, a conviction for an

offense, involving at least fifty grams of a substance containing cocaine base, required a

mandatory minimum prison sentence of ten years, § 841(b)(1)(A)(iii). On August 3,

2010, Congress changed this sentencing scheme through the FSA in order to address a

disparity between sentences for crimes such as Hamlin’s that involved crack cocaine and

those that involved powdered cocaine. See Fair Sentencing Act of 2010, Pub. L. No.

111-220, § 2, 124 Stat. 2372, 2372 (2010). As a result, under the FSA, an amount of at

least 280 grams of a substance containing cocaine base was required to trigger the

mandatory minimum ten-year sentence. Hamlin’s offenses involved less than 280 grams.

       When Hamlin subsequently appeared for sentencing on December 3, 2010, he and

the government did not agree whether this statutory change affected his case. Hamlin

argued that the FSA controlled any sentence imposed after its enactment, but the

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government maintained that it did not. Although the District Court noted that, without

the 10-year mandatory minimum, it would probably have sentenced Hamlin at the low

end of the Sentencing Guidelines’ seventy to eighty-seven month range, the court

adopted the government’s position and sentenced Hamlin to ten years in prison. 1

      Hamlin now appeals, arguing that the District Court’s application of a ten-year

mandatory minimum to Count II was inappropriate in light of the changes effectuated by

the FSA. 2 We agree. We recently held in United States v. Dixon, 648 F.3d 195 (3d Cir.

2011), that the FSA applies to any sentence imposed after its August 3, 2010, enactment

regardless of when the underlying crime was committed. Because Hamlin was sentenced

on December 3, 2010, the court should have sentenced him pursuant to the FSA.

      We will, therefore, vacate the judgment of sentence and remand this case to the

District Court for resentencing under the FSA.




1
  Specifically, Hamlin was sentenced to 120 months in prison “at both Count I and Count
II,” to be served concurrently, a five-year term of supervised release and a $200
mandatory assessment.
2
  We have jurisdiction over Hamlin’s appeal on the basis of 28 U.S.C. § 1291, and our
review is plenary. See United States v. Reevey, 631 F.3d 110, 112 (3d Cir. 2010).
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