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September 20, 2010

Sixth Circuit summarily (and wrongly?) decides that sentencing changes in Fair Sentencing Act not applicable to pre-change crime

At the end of a seemingly minor opinion, the Sixth Circuit today in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addresses a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  Here is the panel's entire discussion of the issue:

On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010).  We granted the motion and accepted supplemental briefs from both parties.

This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question.  We affirm the district court’s imposition of the 60-month mandatory minimum sentence.

I have provided links to the key statutory provision and Supreme Court ruling that the Sixth Circuit panel relies upon for its important (and first impression?) ruling.  I do so because I am not 100% sure that these controlling authorities must be read in the way the Sixth Circuit contends because both address criminal provisions that have been repealed.  Critically, the Fair Sentencing Act did not repeal anything, it merely amended (by raising) the trigger quantities for the application of a mandatory prison term.

Some may contend that the difference between "repealing" a criminal statute and "amending" when certain sentences apply is just a matter of semantics and that the Sixth Circuit's work in Carradine is sound.  But one need not be a pedantic textualist to appreciate that there also may be a meaningful substantive distinction between a wholesale repeal of a criminal statute and a statutory amendment that merely revise the applicability of a restriction on the discretionary authority of a judge at sentencing.

I do not mean to assert that the Sixth Circuit panel's work here in Carradine is obviously wrong.  I do mean to assert, however, that the issue is not as clear-cut as the Carradine panel opinion suggests and that, at least in my mind, this important issue merits greater discussion and fuller analysis than gets provided by the Sixth Circuit panel here.

September 20, 2010 at 12:28 PM | Permalink

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Fully briefed. Clearly decided. "Greater discussion" and "further analysis" are unnecessary. If the decision is incorrect, then someone should make an argument that it is incorrect.

Posted by: Mark | Sep 20, 2010 3:21:18 PM

I would say it's actually very clear-cut, barring a reversal of position by the Supreme Court, and the CA6 panel was required to follow the current SCOTUS law.

"In consequence, the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense." Marrero, 417 U.S. at 661 (citations omitted).

Posted by: Bill B. | Sep 20, 2010 4:36:26 PM

But it is not 100% certain in my mind that the Fair Sentencing Act "repeals" a harsher criminal sentencing law, Bill B. Even after the enactment of the Fair Sentencing Act, there is still applicable a 5-year (and 10-year) mandatory minimum sentence for certain crack dealing in federal law --- all that has been amended is the amount of crack needed to trigger those mandatory minimums. (The sentencing judge in Carradine would still clearly have authority and discretion to impose a 60-month sentencing term even if/when sentencing under the FSA. All that has changed is his authority to go lower --- and, for what it may be worth, even under old law judges in many crack cases had authority to go below the harsh old crack laws if/when a defendant got a 3553(e) SA letter from the prosecution or if he fit the 3553(f) safety-valve criteria).

In other words --- and you may still consider this just semantics --- the FSA did not repeal ANY criminal sentencing laws, it just changed the factual circumstances when a mandatory minimum statute trumps the usual application of the 3553(a) rules. You may think this is a distinction without a difference and that Marrero clearly controls. I think this is a hard enough issue that it merits more than just a cite to Marrero. Obviously, the Sixth Circuit (at least for the time being) agrees with you.

Posted by: Doug B. | Sep 20, 2010 5:58:46 PM

hmm

"The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996)."

HORSE pucky! they don't do that with sex crimes....every year 1,000's of new laws are passed that are ilegally applied BACKWARD! what makes this one diff?

Posted by: rodsmith | Sep 20, 2010 6:17:05 PM

The weight of authority does support the Sixth Circuit's ruling, but Marrero isn't squarely on point. The quotation you provided misses Doug's point: there is a difference between a repeal and an amendment for the purposes of a savings clause. Marrero only dealt with a repealing act, and the cases it cites in support can similarly be distinguished. See, e.g., Jones v. United States, 327 F.2d 867, 870 (D.C. Cir. 1963) (statute provided "[c]ases tried prior to the effective date of this Act and which are before the court for the purpose of sentence or resentence shall be governed by the provisions of law in effect prior to the effective date of this Act"); United States v. Kirby, 176 F.2d 101, 104 (2d Cir. 1949) (statute provided "[a]ny rights or liabilities now existing . . . shall not be affected by this repeal."); Lovely v. United States, 175 F.2d 312, 316 (4th Cir. 1949) (statute provided "[prior laws] are hereby repealed. Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal").

Again, the Sixth Circuit has strong support for its decision. See Korshin v. Comm'r, 91 F.3d 670, 674 n.5 (4th Cir. 1996) ("[A]lthough [the federal general savings statute] specifically refers only to repealed statutes, it also applies to statutes changed by amendment.") (citing United States v. Mechem, 509 F.2d 1193, 1194 n.3 (10th Cir. 1975); Moorehead v. Hunter, 198 F.2d 52, 53 (10th Cir. 1952) ("[F]or purpose of [the federal general savings statute], whether statute was changed by amendment or repeal is 'immaterial.'"); United States v. Ettrick Wood Products, 774 F.Supp. 544, 554 n.15 (W.D. Wis. 1988); United States v. Taylor, 123 F. Supp. 920, 922 (S.D.N.Y. 1954)).

However, before Marrero the Supreme Court held that, "The continued prosecution [of a defendant] necessarily depend[s] upon the continued life of the statute which the prosecution seeks to apply. In case a statute is repealed or rendered inoperative, no further proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose." United States v. Chambers, 291 U.S. 217, 233 (1934). Specifically addressing the general savings statute, the Court held that, "It is a provision enacted in recognition of the principle that, unless the statute is so continued in force by competent authority, its repeal precludes further enforcement." Id. at 224. The argument against the Sixth Circuit's decision is that the general savings clause is inapposite when a law is merely amended because the statute is kept alive by the amending act itself.

Further, public policy supports a contrary conclusion to that reached by the Sixth Circuit. In Hamm v. City of Rock Hill, 379 U.S. 306 (1964), the Court noted "the principle [exemplified by Chambers] takes the more general form of imputing to Congress an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive." Id. at 313. There is little reason to continue to impose disparate punishments based on an illusory distinction that is recognized as having been made in error.

I wouldn't bet the farm on this argument, but it's certainly one that I feel comfortable making in the comments section of a blog.

Posted by: Stuart Sarratt | Sep 20, 2010 6:28:31 PM

Carradine filed a supplemental brief making just the argument Doug sketches. The Sixth's opinion is striking in not even acknowledging the argument.

Posted by: Michael Drake | Sep 20, 2010 6:38:33 PM

This issue is purely a question of interpreting Congress' intent (unlike in Chambers, which was premised on interpreting the nation's intent in repealing Prohibition when applying a Congressional statute). My personal preference is that the courts NOT engage in significant "discussion" "analysis" or "acknowledging parties' arguments" in applying Congressional statutes unless it is absolutely necessary (which is not the case here). Such discussion in judicial opinions often leads to a lack of clarity where clarity in the law is a huge benefit.

One set of rules exists at the time that a crime is committed. Congress chooses to change those rules without saying the changes are to be retroactive. What rules should apply to pending prosecutions? In the context of interpreting Congress' statutes, no one has cited a legal principle that even tends to indicate that the penalties existing at the time of a crime should not apply if Congress changes the penalties after the crime. The general savings statute evinces the opposite principle. This is not a question of the semantics of the general savings statute. It's a question of basic statutory interpretation, looking at the role of the courts vis-a-vis the legislature.

On numerous occasions (many of which were cited by the Sixth Circuit and in the comments above), the federal courts have said to Congress: "If you want a statute to be retroactive, be explicit when you write the statute." Here, Congress did not make the Act retroactive. The solution is (and was) for Congress to make the statute retroactive if they want it to be retroactive.

Your headline should replace the word "summarily" with the word "concisely." The issue was fully briefed and clearly decided. Any further discussion would just be an invitation to mischief.

Posted by: Mark | Sep 21, 2010 12:01:58 AM

There was certainly quite a bit of discussion, by FAMM and others, about retroactivity. So Congress clearly understood that it would not apply retroactively unless they made it retroactive. The courts should not intrude upon the powers of Congress.

The entire argument against the CA6 opinion appears to be semantics to me. So I'll just go with that.

Posted by: Bill B. | Sep 21, 2010 10:17:22 AM

@Mark: Yeah, I agree. It isn't necessary, as you argue, but it would have been nice if Congress would have thrown us a bone by adding "the provisions of this act take effect on ___ for offenses occurring on or after that date" to foreclose arguments like the one I've made.

Posted by: Stuart Sarratt | Sep 21, 2010 11:30:48 AM

To my mind, the Sixth Circuit somewhat misstated the law when it stated that “[t]he general savings statute, 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application.” Marrero, the Supreme Court case cited immediately after this statement, does not state that a rule of construction exists that “requires” that penalties survive unless Congress otherwise “expressly provides.”

In reality, when Congress is silent regarding the application of ameliorative criminal legislation to past or pending cases, its imputed intent depends not on presumptions, but on the circumstances.

In Hamm, the Supreme Court noted “the principle [that] takes the more general form of imputing to Congress an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive. This general principle, expressed in [Chambers], is to be read whenever applicable as part of the background against which Congress acts. Thus, we deem it irrelevant that Congress made no allusion to the problem in enacting the Civil Rights Act.” Thus, in Hamm, the Court appears to have expressly rejected the very presumption on which the Sixth Circuit relied -- and held that the savings clause did not cover cases governed by the “general principle” that avoids imputing to Congress an intent to inflict "unnecessarily vindictive" punishment. In Korshin, a case cited in Carradine, the 4th Circuit noted that the savings statute “is not an absolute” rule, because of the Hamm/Chambers “exceptions.” One could just as easily view the savings clause as an exception to the “general principle” recognized in Hamm and Chambers. Ultimately, the question here is not answered by a presumptive rule of construction. The answer depends on whether the change in the law resembles the circumstances present in Hamm and Chambers, or not. As it happens, I believe Hamm/Chambers govern.

Posted by: Tim, AFPD | Sep 21, 2010 2:15:36 PM

"My personal preference is that the courts NOT engage in significant "discussion" "analysis" or "acknowledging parties' arguments" in applying Congressional statutes unless it is absolutely necessary (which is not the case here). Such discussion in judicial opinions often leads to a lack of clarity where clarity in the law is a huge benefit."

Because nothing promotes clarity in the law like simply ignoring the main arguments raised by the parties.

Posted by: Michael Drake | Sep 21, 2010 9:12:40 PM

Assume that Hamm and Chambers are inapplicable to the question in Carradine. Each of the earlier cases involves a hierarchical evaluation. In the case of Chambers, the nation over Congress when Prohibition was revealed. In the case of Hamm, Congress over the States in the Civil Rights Act. No such hierarchical issue exists when Congress amends 841. The judicial task is simply to apply Congress' intent when Congress is silent.

The question for the Court, in drafting their opinion, is to say what the law is. One consideration for them has got to be whether a discussion of Hamm and Chambers -- which the Court has considered to be inapplicable -- is appropriate. If the Court discusses Hamm and Chambers, then the effect of the Court's decision is likely weakened. The next time Congress considers amending a criminal statute, if the federal courts have not been completely clear that the burden is on Congress to make the statute explicitly retroactive, Congress has less of an incentive to be clear about whether the statute is retroactive. "Oh well, maybe the courts will make it retroactive under a Hamm/Chambers-type theory." So yes, Mr. Drake, leaving aside your sarcasm, it's better that the Court not explicitly discuss the party's argument that Hamm or Chambers is applicable. The Court is not ignoring the party's argument. It's deciding a case and writing the opinion that will provide the greatest clarity in the law. In this context, less is better. The burden is and should always be on Congress to be explicit about retroactivity. Any language in an opinion that does not make this reality totally and absolutely clear weakens the law. Such language doesn't change the outcome of the case either, by the way.

Posted by: Mark Pickrell | Sep 22, 2010 2:14:30 PM

but here's the problem!

" if the federal courts have not been completely clear that the burden is on Congress to make the statute explicitly retroactive,"

The U.S. Constitution says no expost laws PERIOD! there is no exception for so-called civil laws or anyother kind.

So this entier thing FAILS right there! Which is the ACTUAL question any judge should be asking when looking at a new law. DOES IT VIOLATE THE CONSTITUTION? If yes it's OUT. If this is NOT the first time we have told the law makers what they are trying to do is in fact ILLEGAL....time to issue a bench warrant for their arrest for treason!

Posted by: rodsmith | Sep 23, 2010 10:44:15 PM

Wow! What about the fact crack penalties are both unjust and impact diaparitly down racial lines? Why do so many people want Black guys to go to jail for decades for crack? Why do so many AUSAs and judges shy away from the fact they are implimenting a racist statute, when the FSA has been implemented precisely because the current crack penalties promote disrespect for the justice system and are racist?

I think it is safe to say that I will be making an argument that the FSA must appliy to all crack defendants. The recent 6th Circuit opinion cited above fails to addess any of the points below:

First, unless Congress expressly states otherwise, the default rule is that a change in law favorable to a defendant should apply retroactively to “all prosecutions which had not reached final disposition in the highest court authorized to review them.”

The FSA says nothing about prohibiting retroactive application. But, the government relies on § 109 as authority to overcome the common law rule that the FSA applies retroactively to all prosecutions that have not reached their final dispositions. As noted by Professor Berman, however, this statute applies on its face to repealed statutes, not amended statutes like the FSA.

Also, the FSA, through changing the threshold amounts of crack to reach different statutory penalties implicates 5th and 6th Amendment and Apprendi issues involving statutory maximum and minimum sentences. After all, drug quantity is an element of the offense under § 841(b)(1) that must be charged in an indictment and proved to a jury beyond a reasonable doubt.

Finally, the FSA has been passed in order to correct harms caused by the discriminatory impact of current crack penalties. The FSA has been signed into law to correct the wrongful sentences African-Americas have received over the past 23 years. The continued imposition of a 100:1 ratio, with its invidious racial effects is arbitrary, capricious, and lacks a rational basis. The continued application of the current penalties, in light of the obvious and known invidious racial effects of those penalties, is tantamount to a discriminatory purpose. Thus, failing to apply the new law retroactively raises serious Equal Protection and Due Process concerns.

For all of these reasons, and likely more that I have not yet thought about, the FSA should apply to all cases not yet final upon expiration of direct review.

Posted by: Matthew Robinson | Sep 24, 2010 2:40:51 PM

So let me get this straight. After more than twenty years of hugely slanted mandatory minimums for crack offenses, there are finally laws passed. The new laws is essentially an admission that the old law is problematic and needs to be drastically changed. But the Sixth Circuit now essentially says that "yes the new law changes the mandatory minimums and under the new guidelines you would get less time but hey, your crime was committed before the law was passed and even though you are being sentenced after its passed, you still get sentenced under the old guidelines". HUH? Why is that when it comes to government changes that benefit the government, they are enacted immediately and then retroacted, but when it effects the citizens of the country, we have to wait for the red tape and arguments and interpretations before anything truly gets done. It's shameful that the Sixth Circuit has done this. why bother even considering the new law then at all if you're going to use a technicality to avoid applying it?

Posted by: Deb | Nov 11, 2010 2:51:35 PM

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