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682 F.3d 1059

Docket No. 11-3214.

United States v. Mapp

Eighth Circuit Court of Appeals

Submitted: April 20, 2012.

Filed: July 2, 2012.

Eighth Circuit Court of Appeals · decided 2012-07-02

2 counsel of record

Applies 18 U.S.C. § 2 · 21 U.S.C. § 841 (§ 401 of the Controlled Substances Act)

Relies on Dorsey v. United States · United States v. Sidney

Opinion by (per_curiam) · Decided 2012-07-02

¶1*1060Eric D. Tindal, Williamsburg, IA, for appellant.

¶2Lisa C. Williams, USA, Davenport, IA, for appellee.

¶3Before WOLLMAN, BYE, and BENTON, Circuit Judges.

¶4PER CURIAM.

¶5On February 27 and March 5, 2010, Deshawn Michael Mapp sold cocaine base (crack cocaine) to a confidential informant. Thereafter, a grand jury returned an indictment charging him with two counts of distribution of at least five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Mapp entered into a written plea agreement, which the district court accepted.

¶6Before his September 29, 2011, sentencing hearing, Mapp submitted a memoranda urging the district court to apply the Fair Sentencing Act (FSA), which had taken effect on August 3, 2010. Retroactive application of the FSA and the conforming amendments to the United States Sentencing Guidelines would have had the effect of reducing Mapp’s statutory maximum term of imprisonment, see 21 U.S.C. § 841(b)(1)(C), and his offense level under the Guidelines, see U.S. Sentencing Guidelines Manual § 4Bl.l(b). The district court denied Mapp’s request, consistent with this court’s decision in United States v. Sidney, 648 F.3d 904 (8th Cir.2011). Sidney held that “the FSA is not retroactive, even as to defendants who were sentenced after the enactment of the FSA where their criminal conduct occurred before the enactment.” Id. at 910.

¶7Mapp appealed his sentence, and we held the appeal in abeyance pending the Supreme Court’s decision in Dorsey v. United States and Hill v. United States. The Supreme Court has now abrogated our holding in Sidney and ruled 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 v. United States, — U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). We therefore vacate Mapp’s sentence and remand for resentencing.

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