October 4, 2011
Eleventh Circuit now to review en banc FSA pipeline sentencing issue
Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas 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 this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc.
I am disappointed (but not all that surprised) that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA's new, more fair mandatory minimum terms to a few more federal defendants. After all, since the Rojas ruling, both the Attorney General (as detailed here) and the Third Circuit (in Dixon discussed here) have concluded that the Rojas panel got the law right.
Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses. But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle. (I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded. Yeesh.)
Some prior 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
- Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue
- A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases
- Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases
October 4, 2011 at 12:37 PM | Permalink
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I don't think it's as bleak a situation as you make it sound. The 11th Circuit also granted en banc review in U.S. v. Hudson today, which was decided by a different panel than Rojas and came to an opposite conclusion. Couldn't the court be taking them both to affirm the panel's ruling in Rojas, rather than overturning it?
Posted by: Paul | Oct 4, 2011 7:58:54 PM
Hope so. I envy your optimism.
Posted by: Christopher Keese | Oct 5, 2011 8:42:04 AM