Wednesday, January 5, 2011

Kimbrough is not retroactive

Burston v. Warden of FCI-Williamsburg, No. 6:10cv2692, 2010 WL 5462474 (D.S.C. Dec. 29, 2010):

Petitioner raises in his application for habeas relief recent case law which has held that a District Court has discretion in applying the previously utilized ratios for crack and powder cocaine when engaged in federal sentencing, which reflected a change from a previous holding that the District Courts had no such discretion. See Kimbrough v. United States, 552 U.S. 85, 89-90 (2007); United States v. Eura, 440 F.3d 625, 632-33 (4th Cir. 2006). Courts have held, however, that Kimbrough is not retroactive and prior sentences involving convictions for the possession and/or distribution of crack cocaine are not per se improper or unlawful. Jackson v. Pearson, 2010 WL 2683132 (S.D. Miss. 2010); Thorpe v. Warden, 2010 WL 744697 (C.D. Ill. 2010); Baker v. United States, 2009 WL 2612648 (D.S.C. 2009).

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