United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 8, 2011

Decided July 19, 2012

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11‐1629

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

TONY B. PITTMAN,

Defendant‐Appellant.

Appeal from the United States District

Court for the Central District of Illinois.

No. 10‐20005‐001

Michael P. McCuskey,

Judge.

O R D E R

Appellant Tony Pittman pled guilty to possessing 18.6 grams of crack cocaine with the

intent to distribute, 21 U.S.C. § 841(a)(1), and possessing a firearm by a felon, 18 U.S.C.

§ 922(g)(1). He was sentenced to serve concurrentterms of 120 months in prison on each charge.

On appeal Pittman argues that the district court should have applied the Fair Sentencing Act

of 2010, Pub. L. No. 111‐220, 124 Stat. 2372, to his crack cocaine sentence, which was imposed

after the Act took effect for a crime committed before it effect. Pittman also contends that the

district court erred in sentencing him to 120 months in prison for possessing the firearm.  Based

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐1629 Page 2

on the Supreme Court’s decision in Dorsey v. United States, 567 U.S. ___, 132 S. Ct. 2321 (2012),

which reversed controlling precedent in this circuit, we agree that Pittman is entitled to

resentencing under the terms of the Fair Sentencing Act.    The firearm sentence, which

depended on the cocaine sentence, also must be vacated for reconsideration.

On January 14, 2010, law enforcement agents from Vermilion County executed a search

warrant of Pittman’s Illinois residence and found 18.6 grams of crack cocaine, 572.3 grams of

marijuana, $1,684 in cash, a digital scale, plastic bags, a grinder, and a semiautomatic pistol.

Pittman agreed to be interviewed, admitted the illegal drugs seized from his home belonged

to him, and acknowledged he had been selling cocaine and marijuana from his home for about

one and a half years. He also admitted that he had borrowed the firearm for protection after his

home was burglarized. Pittman was indicted for possessing crack cocaine with the intent to

distribute, 21 U.S.C. § 841(a)(1), and possessing a firearm by a felon, 18 U.S.C. § 922(g)(1).

Pittman entered an open plea of guilty on both counts on December 1, 2010.

Aprobation officerpreparedapresentence investigation report.Because the Sentencing

Guidelines treat firearm possession as a specific offense characteristic of unlawful drug

possession, see U.S.S.G. § 2D1.1(b)(1), the report grouped the two counts together for the

purpose of determining a total punishment. See § 3D1.2(c). The probation officer arrived at a

total offense level of 21 after considering the specific offense characteristic of possessing a

dangerous weapon and Pittman’s acceptance of responsibility, see § 3E1.1. The report stated

that Pittman’s offense level of 21 and criminal history category of III would ordinarily establish

a total punishment guideline range of 46 to 57 months in prison for both counts. At the time of

Pittman’s conduct, his possession of more than 5 grams of crack cocaine with intent to

distribute called for a statutory mandatory minimum sentence of 120 months in prison.

21 U.S.C. § 841(b)(1)(B)(iii) (2006). The probation officer recommended applying U.S.S.G.

§ 5G1.1 to sentencePittman to 120 months in prison on each count,to run concurrently. Pittman

did not object to the presentence report.  The district court adopted the report in its entirety and

sentenced Pittman to 120 months in prison on each count to run concurrently.  When the

district courtmade thatdecision, circuitprecedentindicatedthatthe Fair SentencingAct would

not apply to a defendant whose crime was committed before August 3, 2010.  See United States

v. Bell, 624 F.3d 803 (7th Cir. 2010) (refusing to apply Act to case pending on direct appeal);

United States v. Fisher, 635 F.3d 336, 339 (7th Cir. 2011) (extending Bell to defendant who

committed crime before Act took effect but was sentenced afterward), rev’d sub nom. Dorsey v.

United States, supra.

Pittman argues that the district court should have applied the Fair Sentencing Act, Pub.

L. No. 111‐220, 124 Stat. 2372, to his sentence for drug possession. The legislation was enacted

on August 3, 2010, before Pittman was sentenced but after his criminal conduct. The Act

amended § 841(b)(1) by raising the amount of crack cocaine mandating a 120‐month minimum
No. 11‐1629 Page 3

prison sentence for Pittman (because of his criminal record) from 5 grams to 28 grams.

See 21 U.S.C. § 841(b)(1)(B)(iii) (2006 & Supp. IV 2010). Because Pittman pled guilty to

possession of only 18.6 grams of crack cocaine, he would not be subject to the 120‐month

minimum sentence under the revised statute. The Supreme Court recently held that the more

lenient penalties of the Act applied to offenders like Pittman whose crimes preceded the

enactment of the Act but who were sentenced afterthat date. See Dorsey, 567 U.S. at  ___, 132 S.

Ct. at 2335‐36. Thus, we remand to the district court for resentencing in accordance with the

Act.

Pittman also challenges the concurrent 120‐month sentence for possessing a firearm as

a felon. He argues that the district court should have applied U.S.S.G. § 5G1.2(b), which

addresses sentencing for multiple counts of conviction, instead of § 5G1.1(b), which addresses

sentencing on a single count of conviction. If the court had applied the correct section of the

Guidelines, Pittman contends,the guideline range forthe firearm charge would have been only

46 to 57 months. We need notreach the merits of this argument: the district court’s sentence on

the firearm charge was dependent on the sentence for the crack cocaine charge, which must

itself be vacated.  Thus, we VACATE the sentences on both counts and REMAND to the

district court for a new sentence on both counts of conviction.