Wednesday, July 06, 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:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack

Friday, July 01, 2011

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

Some recent related posts:

July 1, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, June 30, 2011

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 27, 2011

US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

As indicated in this official public notice, this Thursday, June 30, a public meeting of the US Sentencing Commission is scheduled at which the USSC is expected to vote on whether and how to make the new reduced crack offense sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  The Sentencing Commission has posted here on its website a lot of interesting links to the input the USSC has received about this consequential issue.  (Enterprising researchers and students can learn a lot about the politics and practicalities of federal drug sentecing by reviewing these materials.)

Based on the (incomplete and non-insider) buzz that I have heard surrounding this issue, I predict that the Sentencing Commission will vote to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 27, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, June 24, 2011

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

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.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Thursday, June 02, 2011

Informed criticisms of Justice Department's proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department's proposed limits on who should get the retroactive benefits of the new lower crack guidelines (basics here).  Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department's proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60% of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70%, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses [at the USSC hearing on June 1] -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission's new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them.

The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified [at the USSC hearing] thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department's recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

Recent related posts:

UPDATE Margaret Love also passed along for posting another informed observer's reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction (e.g., 924(c)). (This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.)  After he left, the US Attorney for Northern Iowa elaborated on the Department’s position in her testimony.  The Commissioners grilled her on how these limitations (especially those based on criminal history) could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners.

She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process.

It is always hard to predict based on questions at a hearing,... but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction (i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553(a)).  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O'Hear has still more observations on the hearing at his Life Sentences blog here and FAMM's twitter feed has even more on the hearing.

June 2, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, June 01, 2011

Lamar Smith's (deeply misguided) statement about crack retroactivity debate

Via the Main Justice blog I came across a notable, and in my view deeply misguided, statement issued by House Judiciary Chairman Lamar Smith concerning today's US Sentencing Commission hearing about whether to make its new crack guidelines retroactive. Here is the statement:

“The Sentencing Commission is poised to once again overstep its role and enforce laws not as enacted by Congress, but as the Sentencing Commission believes they should be enacted.  Congress did not create the Sentencing Commission to legislate or amend the laws passed by Congress.  But that is precisely what the Commission is considering with the Fair Sentencing Act of 2010.  Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively.  And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

“I’m also disappointed by the Obama administration’s position supporting the release of dangerous drug offenders.  It shows that they are more concerned with wellbeing of criminals than with the safety of our communities.  This sends a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.

“The members of the Sentencing Commission are unelected and therefore are not accountable to the American people.  Time and again, the Sentencing Commission has chosen to usurp the authority of Congress and impose its will on our communities.  It is time for Congress to restore accountability to our sentencing laws and ensure that the Sentencing Commission cannot continue to create law without Congressional approval.”

There are so many troubling aspects of this statement with respect to the work of the US Sentencing Commission, I am not sure where to begin.  Most critically, everything that the US Sentencing Commission does is always subject to subsequent rejection by Congress, so the notion that the USSC does lots of stuff without at least tacit congressional approval is just wrong.  More specifically, there are in fact parts to the Fair Sentencing Act of 2010 and lots in the congressional record to suggest that Congress did expect and intend that the new crack cocaine guidelines could and should be applied retroactively by the USSC. 

As for the pot-shots at the Obama Administration, this rhetoric is even worse and even more irresponsible.  As reported here, the Obama Administration's position on crack retroactivity is expressly that "dangerous drug offenders" should not get the benefit of the new lower crack guidelines.  Moreover, to assert that Justice Department is "more concerned with wellbeing of criminals than with the safety of our communities" itself sends a "dangerous message" that the House Judiciary Chair doesn’t take seriously the challenge of responsible public policy decision-making and instead has a greater interest in sound-bite demagoguery.

Recent related posts:

June 1, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, 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:

May 31, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 25, 2011

Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases

As regular readers know, I have been following closely (and have been at times involved in) the litigation surrounding the issue of applying the Fair Sentencing Act's revised mandatory minimum sentencing provisions to not-yet-sentenced defendants.  Today, Seventh Circuit Judge Williams (joined by Judge Hamilton), has this opinion making the strongest arguments for applying the FSA to these pipeline cases, though this opinion comes as a dissent from the circuit's denial of en banc review of a panel decision (blogged here) that was decided the other way in March.

Anyone involved with on-going FSA litigation will want to review this new opinion, and here is a passage that effectively articulates what I consider the strongest justification for reading the FSA's new minimums to apply to not-yet-initially sentenced cases:

The panel recognized [the argument based on the FSA's Section 8 directive to the USSC to amend the crack guidelines ASAP], but then stated that Congress “could have dropped a hint” that it sought to apply the FSA to pending cases “in its charge to the Sentencing Commission.”  I see no hint that Congress intended otherwise.  In that very charge, in fact, Congress ordered the USSC to exercise emergency powers to conform the guidelines to the FSA “as soon as practicable,” and no later than ninety days, instead of waiting for the Commission to promulgate new guidelines under existing procedures.  When the FSA was enacted, Congress was undoubtedly aware of the default rule of applying amended guidelines to pending cases, which would require the application of a new 18:1 guideline ratio regardless of when the violation occurred.  Section 8 of the FSA sought to promote “consistency” between the guidelines and the statute, which signals an intent to apply the FSA to pending cases just as the guidelines would be.  Under the panel’s interpretation, for many defendants currently being sentenced whose conduct occurred before the FSA was enacted, the sentencing court would calculate an 18:1 guideline ratio, but would have to apply a statutory 100:1 ratio.  Oddly, under the panel’s interpretation, of these defendants, the only ones who benefit from this “emergency authority” are the worst offenders, whose new guidelines range would be reduced to the statutory minimum. Congress’s mandate in section 8 would not have made much sense if Congress did not intend the FSA to apply to defendants in Dorsey’s situation because, regardless of what the Commission promulgated, the new guidelines would simply look to the old statutory minimums. 

Some posts on this FSA issue:

UPDATE Thanks to this post at SentencingSpeak, I saw this effective local article about one (of many?)individuals adversely impacted by the continued application of the old crack mandatory minimums.  The piece is headlined "Old mandatory-minimum law lengthens Pittsburgh man's crack-cocaine sentence," and here is an excerpt:

In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.

If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams....

The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.

"I know people who have shot someone and gotten less than five years in jail," said Mr. Brewer's mother, Nicole Roach, who drove more than 100 miles in a rented car to attend her son's sentencing. She emerged in shock, recalling how Mr. Brewer's guilty pleas in 2005 and 2007 to drug possession resulted in probation. "If there's a new law, it should be applied," said Mr. Brewer's fiancee, Ebony Tolliver, of Mount Washington. "How does that work?"

May 25, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Saturday, May 21, 2011

Revised data from USSC concerning potential impact of FSA guideline retroactivity

The US Sentencing Comission now has posted here this document described as an "Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively." This Commission document provides an updated estimate of the impact on drug offenders currently incarcerated of any decision to make the new revised crack guidelines retroactive. Here are key snippets from the lengthy document:

On October 15, 2010, the United States Sentencing Commission promulgated a temporary, emergency amendment that implemented the emergency directive in section 8 of the Fair Sentencing Act of 2010. On April 6, 2011, the Commission re-promulgated the temporary amendment as a permanent amendment, which will become effective, absent congressional action, on November 1, 2011.  The Commission also voted to publish an issue for comment regarding whether, pursuant to 28 U.S.C. § 994(u) and 18 U.S.C. § 3582(c)(2), it should give the amendment retroactive effect, and announced a hearing for June 1, 2011 regarding that issue.  This memorandum estimates the impact on offenders currently incarcerated in the federal prison system of portions of the amendment, if the Commission were to make all of the amendment, or those portions, retroactively applicable....

After accounting for those offenders for whom the sentencing range would not change after application of the FSA Guideline Amendment, the total number of crack cocaine offenders incarcerated on November 1, 2011, who are estimated to be eligible to receive a reduced sentence under 18 U.S.C. § 3582(c)(2) is 12,040....

Based on [various] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.6 percent (or 37 months, from 164 months to 127 months)....  [It appears] that 7,152 offenders (78.1%) would receive a sentence reduction of 48 months or less.  Conversely, 280 offenders (3.1%) would receive a sentence reduction of more than 10 years.

May 21, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Saturday, May 07, 2011

Fourth Circuit discusses inapplicability of FSA to case on appeal after enactment

The Fourth Circuit on Friday joined its fellow circuits in holding that the new provisions of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal.  The ruling in US v. Bullard, No. 09-5214 (4th Cir. May 6, 2011) (available here), includes these passages and a key footnote:

Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to "promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable . . . ," Pub. L. No. 111-220, evinces its intent to have the law apply retroactively.  We disagree.  Congress’s desire to have the FSA implemented quickly in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed.[FN5]  Congress knows how to explicitly provide for retroactive application when it so desires.

[FN5] We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here.

May 7, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact | Permalink | Comments (2) | TrackBack

Thursday, May 05, 2011

USSC request comments on possible retroactivity of new crack and drug guidelines

As detailed in this document described as a "Reader-Friendly Version of the Commission's Request for Comment on Retroactivity," the US Sentencing Commission is now requesting public comment by June 2, 2011, concerning "whether Amendment 2 [of its most recent set of Guideline amendments sent to Congress], pertaining to drug offenses, should be included as an amendment that may be applied retroactively to previously sentenced defendants."  Here is more background and details from this document:

On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register.  See 76 FR 24960 (May 3, 2011).

Amendment 2, pertaining to drug offenses, has the effect of lowering guideline ranges.... The Commission seeks comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2)....

Amendment 2, pertaining to drug offenses, contains three parts.  The Commission seeks comment on whether it should list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. This has the effect of lowering guideline ranges for certain defendants for offenses involving crack cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs, regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively....

If the Commission does list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced? 

May 5, 2011 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Friday, April 29, 2011

First Circuit thoughtfully talks through inapplicability of new FSA minimums on appeal

The First Circuit has a thoughtful discussion of its view that the new mandatory minimums of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal. The ruling in US v. Goncalves, No. 10-1367 (1st Cir. April 29, 2011) (available here), includes these passages (with indicated emphasis in the original):

There is assuredly a policy reason favoring Goncalves' requested result: Congress did think that the superseded law was too harsh, so that it will be too harsh for Goncalves just as much as for those who committed the same offense after the FSA went into effect. Indeed, Goncalves suggests that the discrepancy is itself unconstitutional under equal protection principles; but discrepancies among persons who committed similar crimes are inescapable whenever Congress raises or lowers the penalties for an offense. Most often, the dividing line is the date of the crime....

In legal terms, the FSA is clearly inapplicable to this case; in human terms, the result is much less attractive but that is because the savings statute treats all such penalty reductions generically, and Congress did not expressly make the FSA an exception here.  It could easily have done so; indeed, it remains free to do so now.  More broadly, it could sensibly amend section 109 so that reductions in penalties for a pre-existing crime presumptively applied upon the enactment (or effective date) of the statute to anyone not yet sentenced or otherwise still on direct appeal.

Among other important points, the opinion includes this important footnote concerning what the panel describes as a "distinct" FSA pipeline issue:

At least one district court has held that provisions of the FSA, coupled with later amendments by the Sentencing Commission, do make the FSA's adjustments -- including a lessening of mandatory minimums -- applicable to defendants sentenced after the amendments became effective.  United States v. Douglas, 746 F. Supp. 2d 220 (D. Me. 2010) (now pending in this circuit).  Nothing in this decision is intended to resolve the distinct issues in that appeal.

April 29, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, April 26, 2011

Justice Department, six months later, responds to Senators' inquiry about handling FSA pipeline cases

Thanks to a very helpful reader, I have gotten a copy (and provide for downloading below) of a response from the Justice Department to the letter, dated November 17, 2010, from Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder (blogged here) which urged the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  

The response says little more than what the DOJ lawyers have been saying in courts around the country, namely that the Fair Sentencing Act's silence about implementation dates means that the general Savings Statute entails that only conduct after the effective date of the FSA gets the benefit of the new mandatory minimums.  Nevertheless, the letter is an interesting read, especially because it includes as attachments the internal memos sent from Main Justice to all prosecutors about how they should respond to the enactment of the FSA in August 2010 and to the promulgation of revised crack guidelines in November 2011.

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

April 26, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, April 25, 2011

NY Times editorial about crack sentence debates after FSA

This morning's New York Times includes this editorial concerning federal crack sentencing headlined "Multiple Inequities."  Here are excerpts:

Congress moderated, but unfortunately didn’t eliminate, that disparity last year by passing the Fair Sentencing Act of 2010, reducing the ratio to 18 to 1.  For anyone, that is, who committed a crack offense after the law went into effect last August.  For those who committed crack-related crimes before then but have yet to be sentenced, it doesn’t. They are subject to the old mandatory minimum sentences — 5 years for 5 grams, 10 years for 50 grams.

As Adam Liptak reported in The Times, federal judges have expressed outrage about being forced to impose the harsher treatment with no discretion.  While courts decide if the new law can be applied retroactively, the Justice Department has the discretion to do something now, building on a policy Attorney General Eric Holder Jr. began last May.

He called for the “reasoned exercise of prosecutorial discretion,” authorizing a tough but flexible approach.  He asked prosecutors to take into account the kind of gross unfairness that results from applying the Fair Sentencing Act to someone who committed a crack offense in August 2010 but not to someone who did so the month before.

By statute, judges must give the mandatory minimum sentences to offenders subject to the old law.  Even under the old law, however, prosecutors have considerable discretion. Through plea bargaining, they can also ask for sentences of five years rather than 10.  If they decide not to prosecute in federal court, they can let a state prosecute with more flexibility in sentencing.

April 25, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 19, 2011

An interesting pro-Reagan spin on crack-powder federal sentencing reform

The Heritage Foundation blog has this very interesting new post about federal crack-powder sentencing reform which is headlined "Vindicating Reagan’s Drug Policy … 25 Years Later."  Here are excerpts:

Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine.  Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy.  Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.

However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010.  A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.

In 1986,...[the] person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden.  Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio.  His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio.  The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines.  By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.

As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who for trafficking in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007.  Each of these recommendations was unsuccessful because Congress refused to make a change.

Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.”  He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”

The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences.  Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1.  After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.

On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office.  He made no remarks at the signing.  What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.

April 19, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, April 18, 2011

NYT Sidebar column discusses crack sentencing in FSA pipeline cases

Now available on line here is the latest New York Times Sidebar column by Adam Liptak, which this week is focused on the debates over application on the new Fair Sentencing Act.  Here are excerpts:

The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.  A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”

The new law, the Fair Sentencing Act of 2010, narrowed the vast gap between penalties for crimes involving crack and powder cocaine, a development many judges welcomed.  But it turns out that the law may have been misnamed. “The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive,” a federal appeals court judge in Chicago wrote last month.

The problem is that the law seems to reduce sentences only for offenses committed after it went into effect in August.  The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing.  That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences.

In his recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right.  It is one thing, he wrote, to have to impose an unjust sentence.  But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”

About 30 other federal trial judges have said more or less the same thing. Margaret Colgate Love, a former Justice Department official who oversaw pardon applications, said the decisions were a part of a movement by judges who are sick of imposing sentences they view as too harsh....

Almost no one defends the way offenses involving crack and powder were treated under the old law, which was enacted when crack, in particular, was seen as new, terrifying and seemingly unstoppable.  Crack and powder cocaine are two forms of the same drug. But, under the old law, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

The new law narrows the gap, for no reason better than compromise, to 18 to one.  In practice, that means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

In November, the lead sponsors of the new law — Senator Richard J. Durbin, Democrat of Illinois, and Senator Patrick J. Leahy, Democrat of Vermont — wrote to Attorney General Eric H. Holder Jr.  They urged Mr. Holder to apply the new law to people who had committed their crimes before it was passed but were sentenced after.

The two senators wrote approvingly of an October decision from Judge D. Brock Hornby of Federal District Court in Maine, who said he would “find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.”  They urged Mr. Holder to exercise restraint and prosecutorial discretion “regardless of the legal merits of this position.”  The Justice Department responded by appealing the 56-month sentence Judge Hornby had imposed, saying the old law required a sentence of at least 10 years.

April 18, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 08, 2011

Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings

In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:

Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges.  Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010.  When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio.  I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio.  Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio.  This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....

Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants.  While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.

Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one.  I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders.  I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.

In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1.  When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have.  This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine.  Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer?  Of course not.

I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances.  The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.

I will sentence defendant Billy Williams, Sr., accordingly.

Download 10cr4083.dno305.Williams.newcrackratio.040711

April 8, 2011 in Booker in district courts, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, April 06, 2011

US Sentencing Commission makes guideline crack reductions permanent

As detailed in this official press release from the US Sentencing Commission, the USSC today promulgated a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010."  Here is more:

Commission chair, Judge Patti B. Saris (District of Massachusetts) said, “The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades. For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”

No crack cocaine offender will see his or her sentence increase based solely on the quantity thresholds the Commission set today in the federal sentencing guidelines. As a result of today’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

Based on an analysis of the most recent sentencing data, the Commission estimates that crack cocaine offenders sentenced after November 1, 2011, will receive sentences that are approximately 25 percent lower on average as a result of the changes made to the federal sentencing guidelines today. Moreover, the Commission estimates that these changes may reduce the cost of incarceration for crack cocaine offenders in the federal prison system in the future.

Today’s vote by the Commission will set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. This action maintains proportionality with other drug types insofar as the quantity of illegal drugs, including crack cocaine, required to trigger the five- and ten-year statutory mandatory minimum penalties is subject to the same base offense level no matter the drug type.

Pursuant to statute, the Commission must consider whether its amendment to the federal sentencing guidelines implementing the Fair Sentencing Act should apply retroactively. The Commission plans to hold a hearing on June 1, 2011, to consider retroactivity, and voted today to seek public comment on the issue.

April 6, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

The latest, greatest district court opinion applying FSA to pipeline cases

A couple of veru helpful readers have alerted me to a notable new district court opinion concerning the application of the Fair Sentencing Act to pipeline cases.  Here is one report I received via e-mail concerning the opinion:

Although there are a litany of FSA retroactivity cases being decided on a weekly bases..., I thought the attached opinion was worthy of highlighting to you.  The case is US v. Watts, 09-cr-30030-MAP (D. Mass. April 5, 2011) [available for download below].

It's a 50 page Memorandum from Judge Ponsor that describes the history of crack sentencing and then explains in a thorough analysis why the FSA must be applied to defendants who are pending sentencing and why the General Savings Statute is no bar to that conclusion.  Consistent with your amicus letter [discussed here], it also distinguishes between individuals who have already been sentenced vs. defendants pending sentence.

There are a lot of choice passages, [including]:

  • "A review of the background of [the General Savings Statute], and the authorities construing it, reveals that it is simply not the straitjacket some courts have supposed it to be." (slip op. at 33-34).
  • "An examination of the muddied jurisprudential history of the General Saving Statute reveals the impertinence of the government’s position." (slip op. at 37).
  • "It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by 'fair implication,' to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing." (slip op. at 42).

Download JudgePonsorMemoonFSA-Watts

Some posts on this FSA issue:

UPDATE Another helpful reader suggested that I spotlight this additional quote from the first few pages of the Watts opinion:

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice.  It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself.  For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset.  For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

April 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, February 10, 2011

Second Circuit demands application of old 100-1 crack mandatories ... with laments

Anyone following closely the debate concerning the application of the old crack laws to defendants whose sentences are not yet final will want to check out the Second Circuit's work today in US v. Acoff, No. 10-285 (2d Cir. Feb. 10, 2011) (available here).  Here are the basics:  

Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841.  Although the district court accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and admitted to by Acoff.  The government appealed.  We find that the district court acted unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum.  Accordingly, we vacate the judgment of the district court and remand the case so that Acoff can be resentenced consistent with the statutory mandate.

In the course of reaching this ruling, the panel opinion rejects a number of different arguments with which the defendant contended that his pre-FSA crimes ought only be subject to the new reduced post-FSA mandatory minimums.  In addition, Judges Calabresi and Lynch write notable separate concurrences essentially to lament that the current state of the law seems to demand this outcome.  Here is a section from Judge Calabresi's concurrence:

To the extent that one could have viewed what occurred in Congress as a response to a suggestion by courts that the sentencing statutes were heading towards unconstitutionality, one might question whether the traditional presumption against retroactivity should apply.  In circumstances where the legislature has responded to a judicial suggestion of unconstitutionality, the appropriate starting point might well be the opposite: to assume that the change reaches back—at the very least to cover cases pending on appeal at the time of enactment (and perhaps further) — in the absence of a specific statement that some other metric should be used.  The import of this shift in presumption would be to force Congress to focus specifically on the impact of a legislative change resolving a potential constitutional problem, a focus that is not necessary in the run-of-the-mill situation where no countervailing constitutional-level values suggest that a statute’s official “effective date” and its practical application date should be different.  If the statute’s validity was becoming dubious, why should we assume that the legislature wished the statute’s constitutional dubiousness to apply in any case?

And here is a section from Judge Lynch's concurrence:

It is more difficult, however, to understand why Congress would want to continue to require that courts impose unfair and unreasonable sentences on those offenders whose cases are still pending.  Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one.  It seems likely that simple congressional inattention produced this result: understandably focused on the much larger question of full retroactivity, when Congress decided against making the provisions of the FSA fully retroactive, it may simply have overlooked the distinguishable, and much smaller, category of past offenders who are still being sentenced for pre-FSA crimes.

This is simply a transitional problem.  The class of affected past offenders who are still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1 ratio is presumably small.  But it is no comfort to those, like the defendant in this case, who are sentenced unduly harshly under a now-discredited and repealed law, to know that a relatively small number of offenders share their predicament.

February 10, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, February 02, 2011

US Sentencing Commission forecasts impact of making new crack guidelines retroactive

I just notice this important new document posted on the US Sentencing Commission's website, which is a USSC memorandum titled "Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively."  The details of this 60+ page memo are as intricate as the title, though the basic story concerns how many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced.

The detailed analysis in this memo defies simplistic summary, especially because lots of assumptions and alternative ideas are built into the crack re-sentencing number-crunching.  But these two passages provide the highlights of one key part of the analysis: 

This section of the memorandum provides an analysis of the estimated impact of New Crack Amendment BOL 26, should it be made retroactive, on offenders incarcerated as of October 1, 2010, in the federal prison system.  This analysis was prepared by the Commission's Office of Research and Data (ORD).  ORD estimates that 12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if New Crack Amendment BOL 26 were made retroactive.  If these offenders were to receive reduced sentences pursuant to New Crack Amendment BOL 26, the dates on which they would be released would span more than thirty years....

Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months).  Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less.  Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.

It is interesting to compare this forecast of the impact making the new FSA-inspired crack guidelines retroactive with the USSC's detailed data concerning the actual impact of the 2007 crack guideline reduction being applied retroactively (with the USSC's latest data run here). The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment. Thus, its seems making the FSA-inspired crack guidelines retroactive will actually effect a slightly smaller number of defendants, but could have an even greater impact on those defendants' sentencing terms.

February 2, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, January 21, 2011

Long, thoughtful (and wrong?) new opinion on FSA application to pending cases

As regular readers may recall, aided by a helpful lawyer in NYC litigating a Fair Sentencing Act issue for a defendant awaiting initial sentencing in a multi-defendant case, I had the opportunity and honor to serve as an amicus in an SDNY case dealing with the issue of applying the FSA's provisions to not-yet-sentenced defendants.  Yesterday, US District Judge Kenneth Karas issued a 58-page opinion in US v. Santana, No. 09-CR-1022 (S.D.N.Y. Jan. 20, 2011) (available for download below), which concludes this way:

The Court recognizes that over the course of the last two decades there has been growing belief among practitioners, courts, commentators, and many others that the 100-to-1 ratio that Congress hastily adopted in 1986 was based on insufficient facts and has resulted in severe sentences that have been disproportionately imposed on certain groups of individuals.  By enacting the FSA, Congress appears to have responded, at least in part, to this consensus. The Court also appreciates the desire of many, including the district judges who must impose mandatory sentences, that there be no more sentences based on the 100-to-1 ratio, and that this sentiment may explain the view that the FSA should govern all sentences going forward.... Indeed, at oral argument, counsel for Defendants, expressing similar sentiment, urged the Court to find some “play in the authority” to apply the FSA to this case. (December 8, 2010 Oral Argument Tr. 51.)  But, here, in light of the Saving Statute, “we are not dealing with optional rules of statutory construction.” Holiday, 683 A.2d at 79.  It is a law that like any other must be applied as written.  And while the goal of those who wish to immediately abandon the old sentencing regime in favor of that adopted in the FSA is understandable, it is a suggestion “addressed to the wrong governmental branch.” Marrero, 417 U.S. at 664.  As Justice Brennan has explained: “Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Id.

Here, Congress easily could have made clear its intent, if it wanted to, that the FSA apply to all individuals who had not yet been sentenced.... But here, Congress adopted no such clear provision.

Of course, it remains a possibility that Congress still could enact legislation expressly applying the FSA to all those not sentenced as of August 3, 2010.  Or, it is always possible that the Executive Branch, as Senators Durbin and Leahy have suggested, could exercise its discretion, through its charging decisions, to avoid continued imposition of sentences under the old law.  But, in the end, it is not the obligation or province of the courts to fill in the gaps left by the other branches of government.  Therefore, for the reasons stated herein, the pending motions to apply the FSA to this case are DENIED.

Download Santana FSA opinion

As my amicus filings in the Santana case reveal, I do not think this is the right result. But I remain grateful to have had a chance to participate in this litigation, and I am impressed that a busy district court judge found the time and energy to write at such great length on this important (but transitory) sentencing issue.

Some posts on the Santana litigation and recent related cases:

January 21, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 20, 2011

Notable new letter to AG Eric Holder concerning application of the FSA

This morning I received a copy of a letter that the Leadership Conference on Civil and Human Rights sent to Attorney General Eric Holder urging him to issue guidance instructing all federal prosecutors to apply the modified mandatory minimums in the new Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment. The letter can be downloaded below, and here is an excerpt:

The passage of the FSA was a watershed moment in the move toward fairness in criminal sentencing and in the effort to correct a long standing wrong. Your leadership and support for the FSA were not only crucial to its passage, but also conveyed the need for immediate action. As you noted last year when testifying before the Senate, “the stakes are simply too high to let reform in this area wait any longer.” We agree....

All of this would lead us to think that the Justice Department would work with some urgency to prosecute crack offenders along the new guidelines consistent with the remedial purpose of the Act. But to our dismay, Assistant U.S. Attorney Michael J. Conley recently argued in court that it was the Justice Department‟s policy, and not simply a matter of prosecutorial discretion, to apply the old mandatory minimums to all future prosecutions and sentencing based on pre-August 3, 2010, conduct.... As Attorney General, you are well within the bounds of your authority to issue such guidance since there is ample precedence for producing various memoranda addressing Department policies with respect to charging, case disposition, and sentencing.... The recent passage of the FSA emphatically reaffirms Congress' intention that crack defendants are entitled to fair treatment. It makes no sense to apply punishment differentially for defendants whose conduct occurred a few days apart.

For these reasons, we call upon you to issue new guidance to all Justice Department prosecutors that closely follows the Congressional intent behind the Fair Sentencing Act of 2010 found in the legislative history surrounding its passage. Such guidance necessarily entails seeking sentences consistent with the Act‟s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place.

Download 1_18_11_Ltr_to_AG_Holder_on_Crack_Sentencing

Some recent related posts:

January 20, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, January 18, 2011

"The Moral Urgency of Crack Retroactivity"

The title of this post is the headline of this commentary by Julie Stewart, the president of Families Against Mandatory Minimums, which ran yesterday at The Huffington Post.  Here is how it begins:

On August 3, 2010, the nation's first African-American president signed into law a bill to reform what many considered the most racially discriminatory sentencing policy in federal law.  The old policy required dramatically more severe penalties for crimes involving crack cocaine than for offenses involving powder cocaine.  The president and Congress deserve credit for working together to lower crack penalties.  Yet, in a cruel irony, they failed to provide any relief to the very prisoners whose unnecessarily harsh sentences they had pointed to as the impetus for reform.  As our nation celebrates the life and legacy of Martin Luther King, Jr., we implore the president and new Congress to listen to their consciences, do what is right, and apply the reformed crack penalties retroactively to all offenders.

January 18, 2011 in Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (7) | TrackBack

Tuesday, January 11, 2011

A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases

US District Judge Gregory Presnell, whose first opinion on the application of the new Fair Sentencing Act to pending cases was posted here, has issued now another interesting FSR order entered earlier this week in US v. Green, Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 7, 2011) (available for download below). This opinion notes and summarizes the district court divisions regarding the application of the FSA to offenses committed before its enactment:

[T]he Court has now obtained a survey from counsel in a related case, United States v. Smith, No. 6:10-cr-202 (Doc. 54), which summarizes all written opinions dealing with application of the FSA to defendants whose conduct occurred before August 3, 2010, when the FSA was enacted, but who were sentenced after its enactment.  That survey is attached [and can also be downloaded below].

In sum, there have been no circuit court opinions dealing with the application of the FSA to defendants in the same position as this defendant -– i.e., who were sentenced after August , 2010, for offenses committed before that date.  There are, however, eighteen district court opinions that fall into this category.  Eleven of these opinions, from nine states and ten districts, have held that the FSA should be applied in this circumstance. Seven opinions from three states and four districts have held otherwise.

 Download FSA green_order

Download FSA green_attachment

I am not certain that accounting of 18 written district court opinions on the application of the FSA to these pipeline cases is the entire universe of written opinion on this issue and I am certain that there have been a lot of addition on-the-record resolutions of these issues by various district judges going both ways without the production of a written opinion.  Thus, Judge Presnell's survey is just a partial account of the deep split in the district courts over this issue, which is highly consequential to lots and lots of defendants in lots and lots of courts around the nation.

As explained in this prior post, I remain troubled that the Department of Justice persists with its advocacy policy calling for the unfair and now reformed old crack sentencing statute to be applied for as long as possible to as many defendants as possible.  That concern is enhanced by the reality that this advocacy position is contributing to deep disparity in the sentencing of pipeline crack cases (and my view that DOJ ought to be using its litigation resources and energies on other issues).  It will be interesting to keep an eye on these issues of law and advocacy as they eventually moves to the circuits and possible the US Supreme Court.

January 11, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 05, 2011

Another district judge rules FSA terms should apply to not-yet-sentenced defendant

US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, garners still more appreciation from me for a little order entered earlier this week in US v. Johnson , Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 4, 2011) (available for download below).  This opinion addresses the widely debated issue of whether the new terms of the Fair Sentencing Act are to apply to not-yet-sentenced defendants who committed crack offenses before the FSA became law. These final few substantive paragraphs readily reveal why I especially appreciate Judge Presnell's work here on an issue I have been helping to litigate in recent months:

Several Circuits have rejected the argument that the provisions of the FSA should be applied after the fact to defendants who were sentenced before the Act became law.  See, e.g., United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Glover, 2010 WL 4250060 at *2 (2d Cir. Oct. 27, 2010); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir. 2010).  No Circuit has yet addressed the question now confronting this Court -- whether the amended (lower) mandatory minimum sentence under the FSA applies to a defendant whose offense occurred before August 3, 2010, but who is sentenced thereafter.

There are, however, district court opinions that have found that the new mandatory minimums are applicable in a case such as this, where the conduct predated the FSA but the sentencing occurred afterward.  See, e.g., United States v. Johnson, Case No. 3:10-cr-138 (E.D. Va. Dec. 6, 2010); United States v. Spencer, Case No. 5:09-cr-400-JW-1 (N.D. Cal. Nov. 30, 2010); United States v. Favors, No. 1:10-cr-384-LY-1 (W.D. Tex. Nov. 23, 2010).

Perhaps the most thorough and compelling opinion is that of Judge Hornby in United States v. Douglas, 2010 WL 4260221 (D. Me. Oct. 27, 2010).  A number of other courts have followed Judge Hornby’s decision.  See, e.g., United States v. Gillam, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v. Shelby, Case No. 2:09-cr-00379 (E.D. La. filed Nov. 13, 2009).  Professor Douglas Berman, an expert in the field of federal sentencing, has also made two submissions to Judge Kenneth M. Karas for his consideration in United States v. Santana, Case No. 7:09-cr-01022-KMK-1 (S.D. NY filed Oct. 22, 2009).  These submissions, attached to this opinion as Appendix B, provide persuasive arguments for application of the FSA to all defendants who are sentenced after the effective date of the Act.  Along these same lines, Senator Dick Durbin and Senator Patrick Leahy were lead sponsors of the FSA.  In a letter to the Attorney General dated November 17, 2010, they cited Douglas with approval and implored him to apply the modified mandatory minimums of the FSA to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.  A copy of this letter is attached as Appendix C.

The Government acknowledges that I must sentence Johnson under the new FSA sentencing guidelines, which are based on an 18:1 crack-to-powder ratio, but would have me apply the old mandatory minimum sentencing provisions, which are based on a 100:1 crack to powder ratio.  This is an incongruous and absurd result, which is at odds with the intent of Congress in enacting the FSA.

Download Cleotha Johnson FSA order

Some recent related posts:

January 5, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, December 22, 2010

"Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses"

The quote in the title of this post is a line from this CNN commentary by Kemba Smith Pradia, which is headlined "My life saved by reprieve of 24-year sentence for crack." Here is how it begins:

Ten years ago, days before Christmas, President Bill Clinton changed my life forever. I was in federal prison, serving the seventh year of a 24-year sentence for a first-time nonviolent crack cocaine offense.

Clinton's mercy and acknowledgement that my sentence was unjust led him to grant me a commutation.  Had he not done so, I would be in prison until 2016.  On December 22, the anniversary of my release, I will join others in a fast for justice to honor those in prison who deserve the same relief from their long sentences for low-level drug offenses.

Many things have changed in the last decade.  I graduated from college, attended law school, got married, raised my son who was born while I was incarcerated and gave birth to a daughter.  I also established my own foundation to give hope to children of incarcerated parents.

At the same time, the sentencing law that I was convicted under came under intense scrutiny.  This year, President Barack Obama signed the Fair Sentencing Act to limit the harsh mandatory minimum sentences associated with low-level crack cocaine offenses. Progress has been made.

But also since my release, an estimated 5,000 men and women have gone to federal prison each year for a crack cocaine offense.  They have been subject to a sentencing structure that the U.S. Sentencing Commission, an independent judicial body, said applied "most often to offenders who perform low-level trafficking functions, wield little decision-making authority, and have limited responsibility."

Indeed, I went to prison for being complicit in my abusive boyfriend's crack cocaine trafficking operation.  Prosecutors in the case acknowledged that I never sold, handled or used any drugs.  Just as Clinton did 10 years ago, Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses.

December 22, 2010 in Clemency and Pardons, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, December 21, 2010

WSJ notes dispute over application of FSA to pending cases

The Wall Street Journal has this new piece noting the on-going legal battles over applying the new crack  law to federal cases in the sentencing pipeline.  The piece is headlined "Crack Sentences Still Tough: Hard Time Given Even for Small Offenses Committed Before Rules Eased in August," and here are excerpts:

The Fair Sentencing Act passed this summer knocked down the requirement of long prison sentences for possession of crack cocaine, but a quirk in how the law was written has resulted in some defendants being sentenced under the old rules — and the situation could continue for years.

Lawmakers who backed the change, with the support of the attorney general and federal sentencing officials, aren't pleased with the outcome. They said the new guidelines rectified an injustice born during the drug wars of the 1980s. Instead, the snafu has created a parallel universe where defendants face different rules for the same crimes — sometimes in front of the same judge — because their offenses were committed at different times.

The cause of the problem: Congress didn't say whether the Act should apply to crimes committed before Aug. 3, when it was signed into law. Penalties for any repealed law remain in place for acts committed under that statute, unless lawmakers "expressly" establish otherwise, according to a federal statute....

But prosecutors and judges have always had some discretion in the crimes that are charged and sentences meted out. Congressional aides said the thinking of lawmakers who supported the law without a retroactive provision was that most prosecutors and judges would opt to follow the new, more lenient rules, even for acts committed before Aug. 3....

Nearly 5,700 defendants each year are sentenced for crack-cocaine crimes, according to data from the U.S. Sentencing Commission, the agency that sets sentencing guidelines for judges....

Lawmakers didn't address whether the law should be retroactive out of concern that a battle over this issue would scuttle the tenuous deal that was reached to pass it, congressional aides said. Opponents of making the law retroactive argued that doing so would lead to a flood of appeals from people already sentenced....

Most judges are issuing sentences under the old crack-cocaine law for crimes committed before Aug. 3. Earlier this month, Hartford, Conn., U.S. District Judge Christopher Droney sentenced a defendant to five years for possessing 14 grams of crack, after prosecutors argued that he had no alternative. Judge Droney said at the sentencing that he likely would have been more lenient if he had any leeway....

In Maine, U.S. District Judge D. Brock Hornby recently broke from the pattern, ruling in October that he would sentence William Douglas under the new law for an older crime. Mr. Douglas was convicted of possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher law should be imposed, saying, "Congress stated its goal was to restore fairness to Federal cocaine sentencing. But what possible reason could there be to want judges to continue to impose sentences that are not fair over the next five years while the statute of limitations run?"

Prosecutors filed notice they planned to appeal.

Some recent related posts:

December 21, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, December 08, 2010

Federal sentencing litigation at its absolute finest

The title of this post is a fitting description of what I experienced this morning in the courtroom of U.S. District Judge Kenneth Karas of the Southern District of New York. 

As regular readers know, I have been troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions. And, with the help of a terrific attorney litigating this issue for a client awaiting with a case pending before Judge Karas, I had the opportunity to submit a couple amicus letters (discussed here and here) setting out my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Today was argument day in the White Plains courthouse of the SDNY, and Judge Karas devoted three hours to hearing argument from numerous defense counsel and from me and from the Government.  At every stage of the proceeding today, I was wowed by the effectiveness, insightfulness and kindness of all the litigating and especially Judge Karas.  I feel confident asserting that the level of argument and legal discourse in this district court (as well as the copious briefing that came before the argument) rivaled what one expects before the Courts of Appeals or even the Supreme Court.

I always hope and expect that federal district courts will give as much time and attention to sentencing issues as do appellate courts, but busy dockets and busy litigants do not always make that possible.  In this case, my hopes and expectations were not only met, but exceeded.  And I could gush on at length about many facets of the experience, but at this point I have probably already given the parties involved a justified sense of how impressed I was by their efforts and how grateful I was to be able to participate in this (not so?) little facet of federal criminal justice administration.

Some recent related posts:

December 8, 2010 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, December 01, 2010

A few more thoughts on applying the FSA to not-yet-sentenced defendants

As regular readers know, I am troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions.  Because I think the argument for applying the FSA to defendants awaiting initial sentencing is especially strong, I have previously here posted an amicus letterthat I submitted in a New York case with my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Earlier this week, I submitted another letter in this case that is particularly focused on the Government's claim that, with regards to the FSA's applicability, there is no basis for distinguishing between already sentenced defendants and not yet sentenced defendants.  That full letter is available for download below, and here are two key paragraphs of my argument:

Critically, the Government seeks to obscure the important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentencedas of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date.  It is reasonable and sensible to suggest that Congress concluded that offenders who were sentenced before the FSA became law should not be able to demand a return to court for a complete “redo” — with all the added expense and uncertainty of the resentencing process — based on the FSA’s new sentencing provisions and its ordered revision of the federal sentencing guidelines.  But it is neither reasonable nor sensible to suggest that Congress concluded that only minor crack offenders who have not yet been sentenced should be subject to harsher (now-amended) sentencing laws while all major crack offenders who have not yet been sentenced should get the benefits of the amended sentencing provisions of the FSA.

Stated slightly differently, it is reasonable to assume and conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable already sentenceddefendants from reopening and relitigating the sentences they received before the FSA became law.  But it is not sensible to assume or conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable not-yet-sentenceddefendants from being initially sentenced pursuant to the FSA’s new sentencing structure.  In fact, judicial economy is better served by making the terms of the FSA’s sentencing structure applicable to all not-yet-sentenced defendants: a simple, straight-forward rule applying the FSA to pending cases would prevent sentencing judges in many cases from having now to figure out (1) whether a defendant’s offense conduct took place before or after the FSA enactment, and/or (2) whether and how a defendant’s sentence should be governed by the new crack sentencing guidelines or the old crack sentencing statute.  Indeed, though it is easy to understand how Congress’s interest in sentencing fairness, consistency and judicial economy supports application of the FSA to all not-yet-sentenced defendants, it is hard to understand or even to identify any valid congressional interest that would be served by continuing to apply the older (and now amended) crack sentencing provisions to only not-yet-sentenced minor crack offenders.

Download FSA pipeline applicability follow-up letter

Some recent related posts:

December 1, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Monday, November 29, 2010

Notable FSA application letter from large number of defense counsel to USA for SDNY

As regular readers know, I have been following closely the debates over the application of the new sentencing terms of the Fair Sentencing Act to pending cases.  Indeed, through this amicus letter submitted in a pending case in the Southern District of New York, I have exaplained my view that there is "strong contextual support" for application of the FSA to all pending not-yet-sentenced cases.  In addition, this post of mine from a few weeks ago wondered "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?". 

Against this brackdrop, I am pleased to be able to post a letter addressed to Preet Bharara, the United States Attorney of the Southern District of New Yorkset today, which asks about local FSA policy and it signed by a large group of criminal defense attorneys representing defendants in New York. Here is a snippet:

As you're undoubtedly aware, about two weeks ago, Senators Durbin and Leahy wrote Attorney General Holder to urge him to direct federal prosecutors to take the position that the Fair Sentencing Act of 2010 (the "FSA") should be applied to not-yet-sentenced defendants (a copy of their letter is enclosed). Consistent with legislative history we have canvassed in motions submitted in cases throughout this district, the two Senators explain that Congress intended the FSA to apply to all defendants who had not yet been sentenced when the law took effect.1 Judges are already starting to apply the FSA to pending cases over the Government's objection. See, e.g., United States v. Douglas, 2010 WL 4260221 (D. Me. 2010) (Hornby, J.). Included among them is the Honorable Shira A. Scheindlin, who recently applied the FSA to the sentencing of a defendant whose conduct predated its enactment. See United States v. Jeannette Garcia, 09 Cr. 1054 (SAS).

In light of the Senators' letter and what we believe will be an increasing number of decisions applying the FSA to pending cases, we write to inquire whether you plan to adopt a policy requiring (or at least allowing) prosecutors in this district to support defense motions to apply the FSA to such cases. Not only do we believe it would be consistent with congressional intent, the goal of sentencing consistency would be furthered by a uniform policy that accords with the decision of Judge Scheindlin and other district judges. Many of us have more than one client that would be affected by a change in policy. We note that the large number of dispositions that would undoubtedly follow would provide the added benefit of conserving prosecutorial and judicial resources that could be better applied to other cases.

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

November 29, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, November 28, 2010

Editorial urges crack/powder parity even after FSA

Because I fear that the push for crack sentencing reforms will lose steam now that the Fair Sentencing Act became law, I was pleased to see this new editorial in the Grand Rapids Press headlined "Goverment should treat crack, powder cocaine offenders the same." Here are excerpts:

The same drug crime is being committed whether a person snorts powder cocaine in the suburbs or smokes crack cocaine in the ’hood.

One form of cocaine should not be sentenced harsher than another. A federal law took effect this month that finally eliminates much of the disparity in prison sentences that’s resulted in blacks disproportionately doing harder time.

Punishment for breaking the law should be tough but fair. The new guidelines are a strong step in the right direction — but “fairer” isn’t the same as “fair.” Congress should seek parity.

Crack is the cheaper form of cocaine, and it is used predominantly by low-income people in urban areas. Blacks represent roughly 80 percent of those sentenced to longer prison terms for crack cocaine crimes....

Last year, Lanny Breuer, assistant Attorney General for the Criminal Division of the Justice Department, testified before a Senate Committee that “we cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.”...

Everyone wants to keep communities safe and see the devastating impact illegal drugs have on families and communities decline. But laws must be smart, tough and fair. Just as federal officials said there was no definitive evidence behind the rationale for the adoption of the 100-to-1 ratio, there is none for 18-to-1. Congress should enact 1-to-1 parity.

Public trust and confidence are vital to an effective criminal justice system.

November 28, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact | Permalink | Comments (0) | TrackBack

Thursday, November 18, 2010

Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

I am very pleased to have learned this morning of a potent two-page letter, dated November 17, 2010, signed by Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder, which urges the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  Here is most of the text from the letter (which can be downloaded below):

The preamble of the Fair Sentencing Act states that its purpose is to "restore fairness to Federal cocaine sentencing." While the Fair Sentencing Act did not completely eliminate the sentencing disparity between crack and powder cocaine, as the Justice Department had advocated, it did significantly reduce the disparity. We believe this will decrease racial disparities and help restore confidence in the criminal justice system, especially in minority communities.

Our goal in passing the Fair Sentencing Act was to restore fairness to Federal cocaine sentencing as soon as possible. As Senator Durbin said when the Fair Sentencing Act passed the Senate: "We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust." You expressed a similar sentiment in testimony before the Senate Judiciary Committee, when you urged Congress to eliminate the crack-powder disparity: "The stakes are simply too high to let reform in this area wait any longer."

This sense of urgency is why we required the U.S. Sentencing Commission to promulgate an emergency amendment to the Sentencing Guidelines. The revised Guidelines took effect on November 1,2010, and will apply to all defendants who have not yet been sentenced.

And this sense of urgency is why the Fair Sentencing Act's reduced crack penalties should apply to defendants whose conduct predates enactment of the legislation but who have not yet been sentenced. Otherwise, defendants will continue to be sentenced under a law that Congress has determined is unfair for the next five years, until the statute of limitations runs on conduct prior to the enactment of the Fair Sentencing Act. This absurd result is obviously inconsistent with the purpose of the Fair Sentencing Act.

As you know, Judge D. Brock Hornby, an appointee of President George H.W. Bush, recently held that the Fair Sentencing Act's reduced mandatory minimums apply to defendants who have not yet been sentenced. In his opinion, Judge Hornby wrote, "what possible reason could there be to want judges to continue to impose new sentences that are not 'fair' over the next five years while the statute of limitations runs? ... I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair." We wholeheartedly agree with Judge Hornby.

We were therefore disturbed to learn that the Justice Department apparently has taken the position that the Fair Sentencing Act should not apply to defendants who have not yet been sentenced if their conduct took place prior to the legislation's enactment. In his opinion, Judge Hornby states that the Assistant U.S. Attorney in the case said he understood this to be the position of the Department of Justice.

Regardless of the legal merits of this position, the Justice Department has the authority and responsibility to seek sentences consistent with the Fair Sentencing Act as a matter of prosecutorial discretion. This is consistent with your view that reforming the sentencing disparity "cannot wait any longer." It is also consistent with the Justice Department's mission statement, which states that the Department should "seek just punishment for those guilty of unlawful behavior" and "ensure fair and impartial administration of justice for all Americans."... In this instance, justice requires that defendants not be sentenced for the next five years under a law that Congress has determined is unfair.

Therefore, we urge you to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Act's reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place. Additionally, please provide us with any guidance that you have already issued to federal prosecutors regarding implementation of the Fair Sentencing Act.

Download Fair Sentencing Act AG Holder letter 111710

Regular readers may recall this post of mine from a few weeks ago in which I wondered "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?".  I am extraordinarily pleased to discover that two US Senators who played a leading role in the FSA's enactment are wondering the same thing.

I hope and certainly expect that this important and potent letter generates more of an official response from the Justice Department than did by blog post.  More importantly, I hope (though I am not sure if we can expect) that this important and potent letter greatly increases the likelihood that many not-yet-sentenced defendants will be subject to the FSA's new sentencing provisions.

Some recent related posts:

November 18, 2010 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, November 16, 2010

Does Abbott provide new and added support for applying the FSA to pending cases?

The Supreme Court's unanimous (and unsurprising) opinion in Abbott v. US (available here; discussed here), which adopted the government's approach to the application of the special firearm sentencing provisions set forth in 924(c), may seem of little relevance to anyone but defendants who face multiple sentences for multiple offenses that carry multiple mandatory minimum sentence provisions.  But, for anyone currently litigating another (now hot) statutory sentencing issue, Abbottis still worth a close read.  Specifically, I think defendants and attorneys arguing that the new Fair Sentencing Act's provisions concerning crack sentencing should apply to pending cases can draw some new and added support from the Justices' work in Abbott.  Let me explain my thinking.

First, at slip op. 10 of the Abbott opinion, the Supreme Court stresses the "primary objective" of the statutory amendment at issue in that case.   The Abbottcourt reasons that because Congress meant to broaden the reach of the gun sentences set out in 924(c), the defendant's arguments to limit the reach of that statute were not compelling.  I think the inverse argument could be made concerning the "primary objective" of the new FSA amendments to crack sentencing provisions: because Congress clearly meant to reduce the scope and impact of the disparity between crack and powder offenses, the government's arguments to limit the applicability of the new statute seem to me to be less than compelling.

Second, at slip op. 11 of the Abbottopinion, the Supreme Court stresses the defendants' suggested statutory reading "would result in sentencing anomalies Congress surely did not intend" because, under that reading, "the worst offenders would often secure the shortest sentences."  A similar argument can be made concerning the government's suggested approach to the FSA: because the US Sentencing Commission has amended and made applicable new crack guidelines that plainly apply to pending case involving large quantities of crack, the failure to give the new FSA statutory provision in yet-to-be-sentenced cases means that only "the worst offenders would often secure the shortest sentences" as a result of the FSA's changes while cases are still in the pipeline.

Third, at slip op. 14 of the Abbottopinion, the Supreme Court rejects the defendants' suggestion that Congress expected the federal sentencing guideline to serve as a gap-filler because there is not any indication that "Congress was contemplating the Guidelines' relationship" to mandatory minimum sentencing when it amended 924(c).  But, in sharp contrast, Congress in the FSA plainly and expressly did contemplate the Guidelines' relationship to crack sentencing statutes when it enacted the fair Sentencing Act.  Thus, the kind of Guideline-centric statutory construction claim rejected in Abbottshould have far more force in the FSA setting.

Fourth, at slip op. 16 of the Abbott opinion, the Supreme Court asserts there is "strong contextual support" for government's statutory interpretation in that case.  In contrast,  as I suggested in this amicus letter submitted in a pending case in the Southern District of New York, I see "strong contextual support" for defendants' proposed application of the FSA to all pending not-yet-sentenced cases.

Some recent related posts:

November 16, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (3) | TrackBack

Tuesday, November 02, 2010

Seeking ground reports on the FSA's application to not-yet-sentenced cases

To my knowledge and as of this writing, the opinion by US District Judge D. Brock Hornby last week in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), is the only written district court decision expressly holding that a defendant guilty of committing a crack offense before the Fair Sentencing Act became law in August 2010, 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 ... "  I did hear today from a federal public defender, however, that a district judge in the District of Massachusetts formally adopted Judge Hornby's opinion in a similar case in his court.

I assume that this issue is arising in federal district courts around the nation, and I would be grateful if any and all folks "in the know" would consider using the comments to report on what it going on in various districts.   Regular readers may recall that, as I sought to explained in this amicus letter  submitted in a pending case in the Southern District of New York, I believe that a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.  But the Justice Department apparently does not agree with my reading of congressional intent (see my lament here), and perhaps other district judges see this differently as well.

Happily, I have been granted some argument time in the case before SDNY District Judge Kenneth Karas in which I submitted this amicus letter on this issue.  The argument is scheduled for December 8, and I will report further on the matter as events develop (to the extent reasonably permitted by blogging/lawyering ethical norms).

November 2, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, October 28, 2010

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?

There are lots of notable and important aspects to the thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes 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."  But in this post I want to spotlight and wonder aloud about a footnote from the opinion noting DOJ's current advocacy position on this important and consequential issue.

Specifically, after explaining that the government in Douglas was urging that the old crack mandatory minimums apply to "to all future prosecutions and sentencings based on pre-August 3, 2010, conduct," Judge Hornby drops this footnote:

At oral argument, I did inquire of the Assistant United States Attorney whether his argument was a matter of individual U.S. Attorney Office discretion or the position of the Department of Justice, and he replied that he understood it to be the policy of the Department of Justice.

I am very pleased that Judge Hornby asked this important question, and now very curious why President Obama's Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible.  For a number of reasons, this policy/advocacy seems deeply misguided and troublesome:

First, as I sought to explained in this amicus letter I submitted in a pending case in NYC, I think a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.

Second, given that there are debatable statutory claims here and that every defendant in every district court with a sentencing pending will press for immediate application of the FSA, the DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. If DOJ is really interested in consistent sentencing practices and outcomes, it could and should simply embrace the policy of having the FSA now apply to all not-yet-sentenced defendants.

Third, way back in April 2009, the official advocacy policy of the DOJ was to call upon Congress to "completely eliminate[] the sentencing disparity between crack and powder cocaine" (testimony here). Disappointingly, Congress only partially reduced the disparity; but, now even more disappointingly, DOJ now seems to want the old unjust 100-1 ratio to apply for a long as possible to as many defendants as possible.

I can imagine various reasons why federal prosecutors have adopted its worrisome position in these FSA pipeline case.  But because DOJ is supposed to be a Department of Justice, not merely a Department of making the best arguments for federal prosecutors, I am hopeful that DOJ might before long consider changing course.

October 28, 2010 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, October 27, 2010

New USDC opinion applying new FSA law to not-yet-sentenced defendants

A helpful lawyer altered me to a thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes 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 is Douglas opinion's final substantive paragraph (and footnote) explaining how Judge Hornby reaches this conclusion:

I conclude, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment.  Yes, the 1871 Saving Clause deserves attention, but it does not command special attention. Generally, as Great Northern recognized, an earlier Congress cannot bind a later Congress. If it is a stretch to say that the Fair Sentencing Act of 2010 "expressly provide[s]" that the previous mandatory minimums are vacated for future sentences, Congress certainly made clear the urgency of change and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow.  In the words of the Supreme Court, it is either a "necessary implication" or a "fair implication" that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal crack sentencings that are not "fair."[FN57]

[FN57] Indeed, I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair. One can imagine the ramifications of a contrary decision.  Defendants would seek to negotiate with federal prosecutors to waive indictment and plead to an information that charges conduct that extends after August 3, 2010, so that they could be sentenced under the new Act.  That charging option would be formidable leverage for prosecutors until the statute of limitations has run on criminal conduct that occurred before August 3, 2010.  And that discretion would be lodged with prosecutors where its exercise is invisible, rather than with judges whose decisions must be explained upon the public record.  That operation of the Fair Sentencing Act would belie its title, at least for the next few years.

October 27, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 24, 2010

Adding my two cents concerning application of the FSA to pending cases

As I noted in recent posts here and here, I think some courts have been a bit too quick to assert that defendants who committed crack offenses before the enactment of the Fair Sentencing Act can get no benefit from the the FSA's provisions.  Spurred on by a helpful lawyer in NYC litigating this issue for a defendant awaiting initial sentencing in a multi-defendant case, I put together a letter with my thoughts about applying the FSA's provisions to cases in the pipeline that have not yet been sentenced. 

The letter, which can be downloaded below, sets forth my view that Congress intended the new sentencing terms of the FSA to apply to pending cases as soon as possible.  The letter gets started this way:

Counsel for some defendants in the above-captioned case have informed me that your Honor is currently considering motions to apply the terms of the Fair Sentencing Act of 2010 (hereafter “FSA”), which amended the penalty provisions of 21 U.S.C. § 841, during the upcoming sentencing of pending cases in which the offense behavior took place before the FSA became law.  Taking on the role of a de facto amicus curae, I write to supplement some of the arguments set forth by counsel in this case.  Because I believe that principles of statutory construction support application of the provisions of FSA to all pending cases, I wanted to write to suggest a resolution to these motions that would enable this Court to avoid wading too deeply into the many complicated constitutional and policy issues that might arise if this Court were to refuse to apply the amended penalty provisions of 21 U.S.C. § 841 in a case of this nature.

As the motion papers already highlight, there are serious constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final.  But, even more fundamentally, basic principles of statutory interpretation as well as venerated canons of construction suggest the FSA is to be applied to any and all cases such as this one in which an initial sentencing has not yet taken place.  As detailed below, I believe Congress revealed its intent for the FSA to apply to pending cases through key provisions of the statute itself and through comments by key legislators in the Congressional Record.  Moreover, even if this Court finds congressional intent to be unclear, both the rule of lenity and the constitutional doubt canon of statutory construction call for the FSA to be so applied.

Download FSA application letter from DAB

October 24, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Wednesday, October 20, 2010

Seventh Circuit joins Sixth and Eleventh Circuits in rejecting applicability of FSA to pipeline cases

At the end of a lengthy opinion addressing other issues, a Seventh Circuit panel today in US v. Bell, No. 09-3908 (7th Cir. Oct. 20, 2010)  (available here), weighs in concerning an issue that I know is being litigated in various ways in various federal courts in the wake of the enactment of the Fair Sentencing Act.  Here are excerpts from the panel's work:

Three days after the FSA was enacted, Bell, who had not previously challenged any aspect of his sentence, filed a pro se motion for leave to file a supplemental brief regarding the application of the FSA to his case. We granted Bell’s motion, ordered his court-appointed counsel to file a brief on his behalf, and ordered the government to file a response. After reviewing the ably prepared briefs of both parties, we conclude that the FSA is not retroactive and therefore does not apply to Bell’s case....

Like our sister circuits that have considered this issue, see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the savings statute operates to bar the retroactive application of the FSA. Bell’s arguments to the contrary are novel but ultimately unpersuasive....

[T]he FSA’s predominant purpose was to change the punishments associated with drug offenses. The savings statute therefore prevents it from operating retroactively absent any indication from Congress.  And since the FSA does not contain so much as a hint that Congress intended it to apply retroactively, it cannot help Bell here.

Though I guess it is fair to say that "the FSA does not contain so much as a hint that Congress intended it to apply retroactively," I am not so sure (1) that Bell is technically seeking its retroactive application (at least as that term is used in habeas jurisprudence), nor so sure (2) that Congress did not want the FSA to be applied to cases still in the sentencing pipeline. Let me explain what I mean here:

1.As the term is used in habeas jurisprudence, asking for a new law to apply "retroactively" means seeking to apply that new law to cases that have already become "final," which means cases that have already completed all stages of direct appeal (up to and through SCOTUS review).  Bell's case is still on direct appeal, so he is not really seeking "retroactive" application of the FSA, at least not as that term is used in habeas settings.

2.Congress did provide in the FSA for the US Sentencing Commission to make emergency amendments to the sentencing guidelines to reflect the FSA's new crack/powder ratio. It is not entirely clear why Congress would want/need the USSG to make such emergency amendments unless it wanted the provisions and consequences of the FSA to kick in ASAP. This reality is not a clear statement of Congressional purpose to apply the FSA to cases in the pipeline like Bell's case, but it does at least "hint" that Congress intended the new sentencing terms of the FSA to impact crack sentencing cases as soon as possible.

October 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Friday, October 15, 2010

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

October 15, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, October 01, 2010

Eleventh Circuit summarily (in dicta?) asserts that FSA sentencing changes cannot impact pre-change crimes

A few weeks ago in this post, I noted that the Sixth Circuit at the end of a seemingly minor opinion in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addressed 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.  And I complained that the Sixth Circuit's analysis struck me as a bit too cursory.  Today, the Eleventh Circuit at the end of a seemingly minor opinion in US v. Gomes, No. 10-11225 (11th Cir. Oct. 1, 2010) (available here), seems to resolve a complex issue being litigated in district courts to a single sentence (of inaccurate? dicta?).

Specifically, here is the final sentence of a relatively short opinion in Gomes: "Moreover, because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment."   As my post title and mention above suggests, I am not sure if this sentence is part of the holding or just dicta in Gomes, and i am also not sure if it is accurate.  Nevertheless, I suspect all the folks litigating similar issues in district courts around the country will find this sentence important even if though it is opaque.

Related post:

October 1, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Monday, September 27, 2010

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

September 27, 2010 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (43) | TrackBack

Wednesday, September 22, 2010

Top House Republican complaining that Obama administration is not fighting drug war hard enough

As detailed in this report from The Hill, which is headlined "Republican: Obama administration fosters use of marijuana," at least one House Republican wants the Obama Administration to keep growing one part of the federal government:

Rep. Lamar Smith (Texas) accused the administration of being too lax in its enforcement of drug laws.  President Obama's drug policies are encouraging increased marijuana use, a top Republican lawmaker charged Tuesday.

Rep. Lamar Smith (Texas), the top Republican member of the House Judiciary Committee who would likely become chairman of the committee under a GOP majority, accused the administration of being too lax in its enforcement of drug laws.  "The administration is clearly sending the message that they don't think it's bad to use marijuana," Smith said on Fox News. "So they're encouraging the use of marijuana.  And that simply is not a good thing to do."

Smith blamed the administration's decision to not enforce federal laws against marijuana dispensaries in states that have legalized the drug for medicinal purposes.  Smith blamed the administration's approach on drug laws for recent statistics showing an increased use of marijuana.

"We ought to be enforcing our drug laws, not backing away from them," said Smith, who also lamented a recent revision of criminal sentencing guidelines that reduced sentencing guidelines for crack-cocaine traffickers.  Proponents of the law in both parties had pushed that reform because sentencing for crack-related drug crimes were much more severe than for similar amounts of cocaine, a disparity which fueled a racial divide in drug sentencing.

As this article highlights, a Republican take-over of the House of Representatives this fall would likely result in Representative Lamar Smith becoming the chair of the House Judiciary Committee.  And Representative Smith has long been a vocal proponent of the war on drugs and an array of other tough-on-crimes measures that have increased the severity and scope of the federal criminal justice system. 

September 22, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, 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 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

September 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, September 17, 2010

Symbol and substance in crack sentencing reform

The Oakland Tribune has this lengthy and interesting new article headlined "Though largely symbolic, crack-powder cocaine law change seen as social victory."  Here are excerpts:

On Aug. 3, President Barack Obama addressed that disparity at the federal level when he signed the Fair Sentencing Act, a law that reduced the long-standing, hotly debated sentencing gap that treats powder and crack cocaine differently.  The move excited proponents of racial equality who have long argued that coming down harder on a drug chiefly found in communities of color is essentially a modern-day form of Jim Crow-era segregation and persecution.

Though the new law represents a victory for racial justice advocates, the victory may largely be symbolic. Alameda County assistant district attorney Norbert Chu points out the Fair Sentencing Act will have no impact on prosecutions under state law, which is what most police patrolling Oakland streets are there to enforce....

As for federal prosecution, street-level drug interaction is largely coincidental, U.S. attorney's office spokesman Jack Gillund said.  "While (federal) investigators may encounter street-level dealers while combating gang violence or when they are engaged in a targeted enforcement effort, they don't patrol city streets looking for drug dealers; that mission is best handled by the dedicated men and women who serve daily in local and state law enforcement agencies," Gillund wrote in an e-mail.

However, the U.S. attorney's office does prosecute both large and small cocaine-enforcement cases, and it's "impossible to predict what possible impact this change may have on the Bay Area's problems with drugs," Gillund added.

September 17, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Friday, September 03, 2010

US Sentencing Commission releases proposed amendments to implement FSA and final priorities

Though I will certainly need the long weekend to consume and assess and comment on all of the new materials that emerged this week from the US Sentencing Commission, I wanted to spotlight these important new USSC documents ASAP.  So, here are the titles and descriptions of all the new goodies just put out by the US Sentencing Commission (with links to the documents referenced):

Proposed Amendment and Issues for Comment: Fair Sentencing Act of 2010: The Commission is seeking comment on its emergency, temporary proposed amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111–220). The Act was signed into law on August 3, 2010, and requires the Commission to promulgate its emergency, temporary amendment (pursuant to section 21(a) of the Sentencing Reform Act of 1987 (28 U.S.C. § 994 note)) within 90 days, i.e., not later than November 1, 2010. Public comment is due [30 days after publication in the Federal Register].

"Reader-Friendly" Version of Proposed Emergency Temporary Amendment and Issues for Comment: Fair Sentencing Act of 2010: This compilation contains unofficial text of the proposed emergency temporary amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111-220). Official text will appear in an upcoming edition of the Federal Register.

Notice of Final Priorities: In July 2010, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2011. (See 75 Fed. Reg. 41927) After reviewing the public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these priorities.

September 3, 2010 in Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack