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October 19, 2011

How much sentencing unfairness is resulting from Fair Sentencing Act pipeline disputes?

The question in the title of this post is prompted in part by this notable recent report by Michelle Olsen, which is headlined "Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?" and which first appeared earlier this week in the National Law Journal’s Supreme Court Insider.  Here are background basics as set forth effectively in this piece:

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.  Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies.  Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants.  Each committed crack offenses before the FSA became law, but were sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant.  As a result, the defendants would get the higher sentences.  This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach.  Originally, prosecutors had been told that the FSA only applied to post-FSA offenses.  However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy.  Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact....  As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA....

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari.  If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions.  In such cases, the Court can appoint an attorney to defend the judgments below....

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending.  On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Given that a key purpose of modern federal sentencing reform was to reduce nationwide sentencing disparities, any circuit split over any federal sentencing provision undermines a goal of modern reforms.  But the circuit split over application of the FSA here is especially significant and disconcerting because many hundreds of crack offenders are sentenced in federal courts every month AND because the only goal of the FSA was to finally make crack sentencings a little more fair nationwide. 

Congress perhaps deserves the most blame for this FSA application mess because it never specified an express effective date for the reduced mandatory minimum crack sentencing provisions in the FSA.  But I also want to blame the Justice Department for making a bad situation even worse.  As this article notes, AG Eric Holder and his Justice Department initially (and I think wrongly) decided that the FSA's application should be limited; then, a full year later, the AG decided (a day late and a few dollars short) that the government should advocate the FSA's application to pipeline cases.  As a matter of substance, I was pleased when DOJ finally read the FSA the way I think it should be read; as a matter of process, this AG flip-flop aggravated the confusion, uncertainty, disparity and unfairness that continues to fester in lower courts sentencing hundreds of crack defendants every month.

There is an additional reason I am grumpy about how the Justice Department is dealing with this FSA pipeline issue: to my knowledge, there has been no serious or significant effort by any Obama Administration officials to urge the Supreme Court to take up this issue ASAP.  These FSA pipeline concerns were lurking from the moment the House in July 2010 passed the FSA and sent it to the White House for signing by President Obama (as I noted in this post).  And the problematic split over application of the FSA in pipeline cases was already clear a year ago when the Douglas case (discussed here) became the first major district court ruling that the FSA should be applied to not-yet-sentence defendants.  Without an extra push from the feds, I fear SCOTUS may not get around to finally resolvingthis FSA pipeline issue until perhaps 2013, with more large and small sentencing unfairnesses likely taking place in lower courts each month along the way.  What a waste.

UPDATE AND CORRECTION: A helpful reader alerted me that earlier this month, the feds have asked SCOTUS to take up this issue through its response to a petition for cert from the defendant in a Seventh Circuit case. The discussion section of this filing (which can be downloaded below) begins this way: 

Petitioner contends (Pet. 7-17) that this Court’s intervention is necessary to resolve a conflict in the circuits about the applicability of the FSA’s revised statutory penalties to preenactment offenders.  The government agrees.  The court of appeals incorrectly concluded that defendants who committed their offenses before the FSA are still subject, in post-FSA sentencings, to heightened statutory penalties that Congress has repudiated as fundamentally unsound.  Although that conclusion accords with the Eighth Circuit’s, it conflicts with the holdings of the First and Third Circuits.  The Seventh and Eighth Circuits have cemented the circuit conflict by denying en banc review to consider adopting the government’s position.

Contrary to the Seventh and Eighth Circuit’s positions, both the text and the purpose of the FSA demonstrate Congress’s intent that the Act apply immediately at all initial sentencing proceedings.  The issue, which will potentially affect the sentences of thousands of current and future federal defendants, is squarely presented in this case. This Court should accordingly grant certiorari and reverse the court of appeals’ judgment.

Download 11-5721_Hill_v._United_States

October 19, 2011 at 05:09 PM | Permalink


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Just yesterday, the Fifth Circuit made the problem worse and made it a 3-3 circuit split. See US v. Tickles, --- F.3d ----, 2011 WL 4953988 (5th Cir. Oct. 19, 2011).

Circuits that have held FSA applies to those not-yet-sentenced:
First: Douglas
Third: Dixon
Eleventh: Rojas

Circuits that have held FSA does not apply to those not-yet-sentenced:
Fifth: Tickles
Seventh: Fisher
Eighth: Sidney

Posted by: DEJ | Oct 20, 2011 12:19:02 PM

I'll further note that the panel was divided in Tickles, with Judge Stewart dissenting.

Posted by: DEJ | Oct 20, 2011 12:20:13 PM

I wonder if the S.G. is going to take the same postion on the fast-track disparity issue (i.e., that cert should be granted) given that there is now a 5 to 3 circuit split on the issue.

Posted by: snapple | Oct 20, 2011 12:32:32 PM

The Second Circuit is also on the negative side: Acoff.

Posted by: Jonathan Edelstein | Oct 20, 2011 1:32:23 PM

Acoff is not exactly the same, because the defendant there was sentenced pre-FSA. See pages 2-3: http://www.justice.gov/usao/ct/Documents/Appeals/2010/10-285USvAcoff.pdf

The split cases address post-FSA sentences.

Posted by: Legal Writing | Oct 20, 2011 10:59:18 PM

Maybe we should call it a 3.5 to 3 split (given the strong dicta in Acoff)?!

Posted by: DEJ | Oct 21, 2011 11:51:01 AM

Don't give up on the second circuit yet. They are taking their time considering United States v. Bush, a case where the defendant was sentenced after the enactment of the FSA. They have been apprised of all the activity regarding the FSA, the circuit split, and the letter from Senators Leahy and Durbin to AG Holder. Hopefully, they will agree the FSA should be applied to defendants who are sentenced after August 3. They also appointed amicus curiae counsel to argue the opposing position (that the FSA should not apply).

Posted by: Rachael | Nov 7, 2011 5:06:17 PM

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