UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE UNITED STATES OF AMERICA, 

Plaintiff,

v.

D-1 THOMAS ROBINSON,

Defendant. 

________________________________/

Case No. 08-20537

SENIOR U.S. DISTRICT JUDGE

ARTHUR J. TARNOW

ORDER DENYING DEFENDANT’S MOTION [115]

FOR RETROACTIVE APPLICATION OF

SENTENCING GUIDELINES

Before the Court is Defendant’s Motion for Retroactive Application of Sentencing

Guidelines [115]. The Government filed a Response [118] per the Court’s Order [116]. 

On April 28, 2010 a Plea Agreement [85] was filed in which Defendant pleaded guilty to

Counts 1 and 7 of the Indictment [1]. Count 1 charged violation of 21 USC § 841(a)(1) and 21

USC § 846, Conspiracy to Distribute Controlled Substances. Count 7 charged violation of 21

USC § 841(a)(1), Distribution of a Controlled Substance. In the Plea Agreement [85], as to

Count 1, Defendant stipulated that between September 27, 2007 and May 19, 2008 he conspired

to distribute more than fifty grams of crack cocaine. In the Plea Agreement [85], as to Count 7,

Defendant stipulated that on March 17, 2008 he distributed more than five grams of crack

cocaine. Title 21 USC § 841(2009) carried a minimum ten-year sentence for Defendant’s guilty

plea to Count 1 and a minimum five-year sentence for Defendant’s guilty plea to Count 7. This

Court imposed both minimum sentences, to be served concurrently, in a Judgment [97] filed on

August 3, 2010. Additionally, this Court imposed five years of supervised release for each
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count, the statutory minimum, also to be served concurrently. Defendant has now filed a Motion

[115] for re-sentencing pursuant to Amendment 750 of the Fair Sentencing Act of 2010.

The Fair Sentencing Act of 2010 (FSA) became effective August 3, 2010. Among other

things, the FSA increased the quantities of crack cocaine that trigger the five- and ten-year

federal statutory mandatory minimum penalties. As of this writing, all federal courts of appeals

have held that the FSA does not apply to defendants whose sentences had already been imposed

under the former statute and Guidelines as of the effective date of the FSA. United States v.

Goncalves, 642 F.3d 245, 252-55 (1st Cir. 2011); United States v. Diaz, 627 F.3d 930, 931 (2d

Cir. 2010) (per curiam); United States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010); United States

v. Bullard, 645 F.3d 237, 248-49 (4th Cir. 2011); United States v. Doggins, 633 F.3d 379, 384

(5th Cir. 2011); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v.

Powell, 652 F.3d 702, 710 (7th Cir. July 13, 2011); United States v. Brewer, 624 F.3d 900, 909

n.7 (8th Cir. 2010); United States v. Baptist, 646 F.3d 1225, 1226-28 (9th Cir. 2011) (per

curiam); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Gomes,

621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam). As to the class of defendants who were

sentenced before August 3, 2010, the General Savings Statute requires this Court to apply the

penalties in place at the time the crime was committed, unless the new enactment expressly

provides for its own retroactive application. 1 U.S.C. § 109. Congress did not expressly make

FSA’s sentence reduction retroactive.

The FSA became effective August 3, 2010. Under the FSA, Defendant would have been

subject to a five-year mandatory minimum. Defendant was sentenced on July 26, 2010. Under

the Guidelines effective on July 26, 2010, Defendant was subject to a ten-year mandatory

minimum. The court of appeals jurisprudence on the FSA dictates that because Defendant was
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sentenced a mere eight days before the FSA became effective he must serve five more years in

prison. This Court is bound by the Sixth Circuit’s ruling in Carradine. 

Therefore, 

It is HEREBY ORDERED that Defendant’s Motion [115] for retroactive application of

sentencing guidelines is DENIED.

SO ORDERED. 

s/Arthur J. Tarnow

ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

Dated: January 24, 2012

______________________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on January 24, 2012 that I electronically filed the foregoing paper with

the Clerk of the Court sending notification of such filing to all counsel registered electronically. I

hereby certify that a copy of this paper was mailed to the following non-registered ECF

participants on January 24, 2012: Thomas Robinson; 43816-039, FCI Milan, P.O. Box 1000,

Milan, MI 48160.

s/Michael E. Lang 

Deputy Clerk to 

District Judge Arthur J. Tarnow

(313) 234-5182