Fifth Circuit: SCOTUS Overruled Tickles

By Robyn Hagan Cain on November 30, 2012 | Last updated on March 21, 2019

Note it in your Outlook, folks. November 26, 2012: The date that the Fifth Circuit Court of Appeals officially acknowledged that the Supreme Court has overruled Tickles.

Don’t freak out. The italicized Tickles means that we’re talking about a case; not the start of a downward spiral into a world without snuggles, giggles, or happiness.

The beginning of the end of Tickles started with the Fair Sentencing Act of 2010 (FSA).

In 2011, Jonathan Berry pleaded guilty to possession of more than five grams of cocaine base in violation of 21 U.S.C. § 844(a). The conduct giving rise to the offense took place before the FSA was enacted.

Under the pre-FSA version of 21 U.S.C. § 844(a), possession of more than five grams of cocaine base was punishable by a sentence of 5 to 20 years imprisonment. The FSA amended the statute to remove the provision specific to cocaine base. Under the current version, possession of any controlled substance other than flunitrazepam is punishable by imprisonment for up to one year with no prior drug convictions; up to two years with one prior drug conviction; and up to three years with two prior drug convictions.

Berry received a pre-FSA sentence based on the date of his offense. He appealed.

Back in 2011, the Fifth Circuit held in U.S. v. Tickles that "the penalties prescribed by the FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSA's enactment." In June, however, the Supreme Court overruled Tickles, holding in Dorsey v. U.S. that the FSA's "more lenient mandatory minimum provisions do apply to ... pre-Act offenders." Based on Dorsey, the appellate court vacated Berry's sentence.

Technically, Berry's case is slightly different from Dorsey. In Dorsey, the Supreme Court dealt only with 21 U.S.C. § 841, which prohibits possession of controlled substances with intent to distribute, and did not specifically address the FSA's changes to the simple possession statute. Nevertheless, the Fifth Circuit concluded that the more lenient post-FSA version of §844 applies to offenders sentenced after the FSA's enactment because holding otherwise would lead to simple possession being punished more severely than possession with intent to distribute.

While the end of tickles might be cause for distress, the end U.S. v. Tickles is a good thing for pre-FSA offenders.

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