July 6, 2011
Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA
Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter." Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:
We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341, 2011 WL 2120163 (1st Cir. May 31, 2011).
The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.
Here is what appears to be a key new paragraph from the new Rojas opinion:
We do not disagree with our sister circuits in one major sense — absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application. Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately. See Douglas, 2011 WL 2120163, at *4 (“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.”).
Some posts on this FSA pipeline 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
- 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
- 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
- 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
- First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
- Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
July 6, 2011 at 02:40 PM | Permalink
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