May 31, 2011
First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
I am quite pleased (and a bit surprised) to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (opinion here; blogged here), which had concluded that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well." Here are a few notable passages from today's big circuit ruling in US v. Douglas, No. 10-234 (1st Cir. May 31, 2011) (available here):
None of the Supreme Court cases squarely governs this case. Two of those cases (invoked by Douglas), United States v. Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379 U.S. 306 (1964), overrode section 109 in problematic situations. While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the "fair" result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at *6-7.
Perhaps closer to this case from a factual standpoint is Marrero (relied on by the government); it held that Congress' creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute. Marrero, 417 U.S. at 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole.
Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case. It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.
Finally, while the rule of lenity does not apply where the statute is "clear," e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009), section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well. Our principal concern here is with the "fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10; Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences. But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.
In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants. Consequently, the oft-needed circuit split to foster SCOTUS review is now in place (and I would not be too surprised if the SG's office seeks cert from this Douglas ruling in light of the Seventh Circuit's contrary opinion).
Some posts on this FSA issue:
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Notable new letter to AG Eric Holder concerning application of the FSA
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- Federal sentencing litigation at its absolute finest
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- WSJ notes dispute over application of FSA to pending cases
- A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
- Second Circuit demands application of old 100-1 crack mandatories ... with laments
- Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
- Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases
May 31, 2011 at 04:39 PM | Permalink
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The First Circuit in Douglas denies there is a circuit split, and does not even cite the Seventh Circuit opinion, because Douglas was sentenced a week after 11/1/10, when the new Guidelines reflecting the lower ratio went into effect. See footnote 3 (p. 7 of slip op.). Judge Boudin's opinion emphasizes that Congress would not have intended to keep in place statutory provisions that frequently negate the impact of Guidelines amendments which it directed should go into effect no later than 11/1.
Posted by: Peter G | Jun 1, 2011 11:29:22 AM