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Submitted: June 17, 2011

Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and LIMBAUGH,*fn1 District Judge.

This case presents a variation on a theme from a series of recent cases all holding that the Fair Sentencing Act of 2010 (FSA), which increased the threshold amounts necessary to trigger mandatory minimum sentences in crack cocaine cases, is not retroactive. The published cases alone include United States v. Brewer, 624 F.3d 900, 909-10 n.7 (8th Cir. 2010); United States v. Spires, 628 F.3d 1049, 1055 (8th Cir. 2011); United States v. Finch, 630 F.3d 1057, 1063 (8th Cir. 2011); United States v. Smith, 632 F.3d 1043, 1047-49 (8th Cir. 2011), United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011); and United States v. Woods, 642 F.3d 640, 644-45 (8th Cir. 2011). The variation here, as we understand defendant’s argument, is that he should have been allowed to withdraw his plea of guilty for the reason that the change in the penalty provisions for his offense constitutes a “fair and just reason for requesting the withdrawal” as provided under Federal Rule of Criminal Procedure 11(d)(2)(B). Because this argument ultimately depends on whether the FSA is retroactive, and because this Court has definitively determined that it is not retroactive, the judgment is affirmed.

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