United States v. Errick Racy

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Michael J. Melloy (UNPUBLISHED) [3976543] [12-1229]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1229
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Errick Laron Racy, also known as Rook
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: November 12, 2012
Filed: November 20, 2012
[Unpublished]
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Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
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PER CURIAM.
On April 25, 2011, Errick Racy pled guilty to distributing approximately 120
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Racy’s criminal
conduct occurred on March 19, 2010. On August 3, 2010, the Fair Sentencing Act
(FSA) took effect. See Pub. L. No. 111–220, 124 Stat. 2372 (2010). The FSA
“reduc[ed] the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1” by

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increasing the amount of crack cocaine a defendant must distribute before various
statutory mandatory minimum sentences of imprisonment are triggered. Dorsey v.
United States, 567 U.S. ___, ___, 132 S. Ct. 2321, 2326, 2329 (2012). For example,
the FSA increased the amount of crack cocaine necessary for a five-year mandatory
minimum sentence from five grams to twenty-eight grams, and for a ten-year
mandatory minimum sentence from fifty grams to 280 grams. See FSA § 2(a), 21
U.S.C. § 841(b)(1)(A)(iii), (B)(iii); see also Dorsey, 567 U.S. at ___, 132 S. Ct. at
2329. The 120 grams of crack cocaine Racy distributed would thus be insufficient to
trigger a ten-year minimum sentence under the FSA, but more than sufficient to do so
under the old law.
At a sentencing hearing on December 15, 2011, the district court, relying on
circuit precedent, rejected Racy’s argument that the FSA applied retroactively to crack
cocaine offenders whose criminal conduct occurred before the FSA’s enactment on
August 3, 2010, but who were sentenced after that date. The district court accordingly
applied the pre-FSA statutory sentencing provisions, which mandated a ten-year
minimum term of imprisonment for Racy’s § 841(a) violation, and sentenced Racy to
ten years imprisonment for that charge, to be served concurrently with 36 months
imprisonment for Racy’s violations of the conditions of his supervised release. Racy
subsequently filed an appeal with this court, waiving oral argument. We held the
appeal in abeyance pending the Supreme Court’s resolution of the retroactivity
question in Dorsey.
On June 21, 2012, the Supreme Court held that the FSA’s “more lenient penalty
provisions apply to offenders who committed a crack cocaine crime before August 3,
2010, but were not sentenced until after August 3.” Dorsey, 567 U.S. at ___, 132 S.
Ct. at 2326. Because Racy falls within that category of crack cocaine offenders, we

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now vacate Racy’s sentence and remand the case to the district court for proceedings
consistent with the Supreme Court’s opinion in Dorsey.1
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1

Racy’s contention that the district court erred by not “sentenc[ing] him under
a more lenient Guideline range instead of the mandatory minimum sentence that was
imposed” based upon “the contractual nature of . . . Racy’s plea agreement” is
therefore moot. See United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).
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