Chicago, Illinois 60604 Submitted December 8, 2011 Decided December 8, 2011 Before… v. No. 09-CR-32 TIMOTHY BREWER, Charles N. Clevert, Jr

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 8, 2011 *
Decided December 8, 2011
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2073
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 09‐CR‐32
TIMOTHY BREWER, Charles N. Clevert, Jr.,
Defendant‐Appellant. Chief Judge.
No. 11‐2101
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v. No. 2:10cr24‐001
NATHANIEL BAXTER, Joseph S. Van Bokkelen,
Defendant‐Appellant. Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus, these appeals are submitted on the briefs and records. See FED. R. A PP. P.
34(a)(2)(C).

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Nos. 11‐2073 & 11‐2101 Page 2
O R D E R
Timothy Brewer and Nathaniel Baxter each appeals his conviction and sentence. We
have consolidated their appeals, which present the same issue.
Brewer pleaded guilty to distributing crack cocaine, 21 U.S.C. § 841(a)(1); the crime
was committed in October 2008 and involved 26.8 grams of crack, and under the version of
§ 841 then in force, Brewer faced a prison term of at least 5 years, id. § 841(b)(1)(B)(iii) (2006).
That is the sentence imposed by the district court.
Baxter was charged with possessing with intent to distribute crack in February 2010,
id. § 841(a)(1). The government filed a recidivism enhancement, which raised the minimum
prison term for this offense, involving 21.1 grams of crack, to 10 years.
See id. §§ 841(b)(1)(B)(iii), 851 (2006). Baxter pleaded guilty, and the district court imposed
the minimum sentence.
Both Brewer and Baxter bring these appeals to preserve their argument that the
sentencing court should have applied the Fair Sentencing Act of 2010, Pub. L. No. 111‐220,
§ 2(a)(2), 124 Stat. 2372. If Brewer had committed his crime after that legislation was enacted
on August 3, 2010, he would not have faced a mandatory minimum penalty. The same is
true for Baxter. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2006 & Supp. IV 2010),
with id. § 841(b)(1)(B)(iii) (2006).
As both men concede, however, we have concluded that the Fair Sentencing Act
does not apply if the offense conduct occurred before the statute’s enactment, even for
defendants sentenced after that date. United States v. Dorsey, 635 F.3d 336, 340 (7th Cir.
2011), cert. granted, No. 11‐5683, 2011 WL 3422126 (Nov. 28, 2011); see also United States v.
Campbell, 659 F.3d 607, 609–10 (7th Cir. 2011); United States v. Holcomb, 657 F.3d 445, 452 (7th
Cir. 2011). Accordingly, Brewer and Baxter were properly sentenced under the prior version
of § 841(a)(1), and the judgment as to each defendant is AFFIRMED.

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