« Will litigation over California's lethal injection protocol ever end? | Main | An original response to "A Brief and Modest Proposal" from another US District Judge »

August 3, 2010

Fair Sentencing Act about to alter crack sentencing ... with lots of transition issues to follow

As noted in this new Washington Post editorial, President Obama is expected to sign the Fair Sentencing Act of 2010 into law on Tuesday.  As detailed in prior posts, the FSA reduces somewhat the disparity between crack and powder cocaine sentencing in mandatory minimums, it is not entirely clear how the US Sentencing Commission will adjust impacted sentencing guidelines or what cases in the pipeline will be effected by the revisions in the Act.

I imagine there will be unique the transition issues for those indicted but not yet convicted, as well as those convicted but not yet sentenced, under the old law.  In addition, we will have only 90 days to wait for new guidelines from the US Sentencing Commission as well, which presents a host of related transition issues.  Rather than spot the possibilities, I encourage readers to use the comments to note the transition issues they expect to be raised and litigated most frequently after the Fair Sentencing Act becomes law later today.

UPDATE:  Here is a brief USA Today piece on the FSA's signing, which is headlined "Obama signs law targeting disparities in cocaine cases." Here is an excerpt:

President Obama signed a law today designed to change the way that crack and powder cocaine are handled in court. The Fair Sentencing Act is "a bipartisan bill to help right a longstanding wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine," Obama said last week in a speech to the National Urban League. "It's the right thing to do."

August 3, 2010 at 08:43 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fair Sentencing Act about to alter crack sentencing ... with lots of transition issues to follow:


I am a federal defense attorney and I ask the question: Why not retroactive?

It seems that all inmates incarcerated based on a crack offense should seek retroactivity of the FSA, whether that be on direct appeal, or some form of post-conviction motion.

Success would have significant implications for many defendant and inmates. For example, many inmates received mandatory sentences of 10 years under § 841(b)(1)(A) because it was admitted or proved that the offense involved 50 grams or more of crack. See, Apprendi v. New Jersey (requiring drug amount be admitted or proved to a jury beyond a reasonable doubt before increased statuary maximum is permitted)

If the new law is applied retroactively, a sentence of 10 years to life would no longer apply because 50 grams of crack is punished under amended § 841(b)(1)(B), carrying a sentence of 5 to 40 years.

Clearly there are strong policy reasons to apply the law retroactively. After all, the law has been changed in order to correct past wrongs, including a disparate impact of unduly harsh penalties on African-American families, it seems logical that many courts would be inclined to grant retroactive relief.

Posted by: Matthew Robinson | Aug 9, 2010 2:16:10 PM

I am facing the issue mentioned above directly next week and am seeking inout on how to proceed. My client pled guilty to the (b)(1)(a) charge in March, while admitting to an amount of less than 100 grams. There were substantial reasons why that took place, especially considering the defendant,although safety valve eligible, tactically could not move forward with a safety valve proffer. He therefore has a guideline range of 78-97 months under the present guidelines, but obviously must receive at least 10 years for pleading under the prior statute. I have adjourned his sentence just to reach this issue of how the new law wouldapply. Certainly the more favorable guidelines govern at the time of sentence; why not the same concept for the statute. I am not looking to create retroactivity to settled cases - only application to pending ones. Sentence date is August 18th and I would like to some guidance how to proceed, other than in preserving the issue.
Greg Cooper

Posted by: greg cooper | Aug 11, 2010 11:49:16 AM

Im looking for an attorney that is able to do a appeal or a motion on behalf of my husband. He is incarcerated and has been for 6 years and wont get out until 2013. He was convected of a cocaine case less thin 50 grams.I fill that he has a good opportunity to be part of the fair sentencing act and it can be retroactive. Im asking for some one to help us and bring are family back together. If you can help or if you know of an attorney that can us please email me at safelandmg@yahoo.com

Posted by: Chelsea Baker | Aug 12, 2010 2:09:07 AM

I am a defense attorney, and like Mr. Cooper, I have clients who have pleaded guilty under the old statute, but are awaiting sentencing. I am trying to get the prosecutors to make 3553(e) motions to avoid the mandatory minimums in the hope that the new guidelines will drastically reduce the guideline range at sentencing. Would like to hear how other attorneys are handling this transition period.

Posted by: Edward Box | Aug 17, 2010 10:24:11 AM

I do not expect the government will move for sentences below the minimum mandatory under § 3553(e) because the provision provides for reductions based on defendant cooperation, not fairness. I do expect the government to oppose any request for application of the FSA to defendants at sentencing or on direct appeal and continue to push for the longest sentence possible. That is simply what they do.

As I indicated in an earlier post, I will be arguing that the new law must be applied retroactively to cases that are currently pending, either in the district court or on direct appeal. Some courts may grant relief, others will not. And, eventually, the case law will become settled.

In the meantime, I think it would be a tremendous mistake to not make the argument. The worst that can happen is the sentencing judge denies the argument, but it is preserved for appeal.

Matthew M. Robinson
Robinson & Brandt, PSC

Posted by: Matthew Robinson | Aug 18, 2010 10:09:14 AM

This is only my opinion...but I am pretty sure I am correct (famous last words)

An argument should be made that the FSA can be applied to all defendants currently facing sentencing, or who have cases pending on direct appeal.

Convictions do not become final until the expiration of direct review. See, Kapral v. United States, 166 F.3d 565, 577 (3rd. Cir 1999). This distinction is important because it will be a more difficult argument to make if the attempt is to apply the FSA retroactively on collateral review (rather than on direct appeal)See Griffith v Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). See also Reynoldsville Casket Co. v Hyde, 514 U.S. 749, 752, 131 L. Ed. 2d 820, 115 S. Ct. 1745 (1995) (civil case); Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 125 L. Ed. 2d 74, 113 S Ct 2510 (1993) (same).

For example, it is well settled by now that the holding in Booker applied retroactively "to all cases on direct review," but not on collateral review.

The same should be true for the FSA. Obviously, the difference here is that Congress changed the law, not the Supreme Court. But, the reason the Griffith Court found it necessary to apply new law retroactively on direct appeal, was to "treat[] similarly situated defendants the same." 479 US at 323.

If the FSA is not applied on direct review, similarly situated defendants will not be treated the same.

I think I am on the right track here.... Does anyone agree?

Attorney Matthew M. Robinson
Robinson & Brandt,PSC

Posted by: Matthew Robinson | Aug 19, 2010 6:17:56 PM

Thank you for your post, I look for such article along time,today i find it finally.this postgive me lots of advise it is very useful for me .i will pay more attention to you ,i hope you can go on posting more such post, i will support you all the time.

Posted by: Louis Vuitton Handbags | Aug 19, 2010 9:22:48 PM

Matthew, I completely agree. I was actually reading the blog today because I am having trouble finding support and ideas for application of the FSA to a case on direct appeal in the Eleventh Circuit. I’ve emailed you through your website because I want to brain storm with you on this issue. I look forward to hearing from you.

Posted by: Victoria Brunner | Aug 20, 2010 5:50:43 AM

I agree w Matthew. August 18 post. I filed a mtion arguing the same position as Matthew. I also used language from the DOJ May 2010 memo to all prosecutors stating that the government should encourage the courts to exercise their discretion under 18 USC sec. 3553. (Memo is on fd.org website.) I also used AAG's statements made to both houses where he states the government's desire to see the sentencing disparities eliminated. (Excerpts from Statements are also on fd.org.) Also, read Langraf v. USI Film, 511 U.S. 244, 114 S.Ct. 1483 (1994). While not dealing with a criminal issue, the Court does discusses in detail retrospective application of statutory changes which has been cited in numerous Courts of Appeals decisions.

Louis Elias Lopez
Attorney at Law
Board Certified in Criminal Law by the TBLS

Posted by: Louis Elias Lopez | Aug 25, 2010 12:36:58 PM

Perhaps the most thoughtful and courageous opinion by a district court judge ever. United States v. Miller, 2010 U.S. Dist. LEXIS 79763 (Dist. MN 8/6/10)

Miller was convicted in 1990 of offenses involving 50 grams or more of crack cocaine. He was subject to a § 4B1.1 enhancement because he had at least two prior controlled substance convictions. And he received a statutory minium life sentence under § 841(b)(1)(A) because he had two prior felony drug convictions. He moved for a reduced sentence under § 3582(c) based on the 2007 amended crack guidelines.

The court noted that “A career offender sentence, or sentence imposed by a statutory minimum, is generally ineligible for a § 3582(c) sentence reduction (cites omitted). Indeed, the Eighth Circuit has clarified that a statutory minimum sentence remains ‘unaffected by the recent amendments to the crack quantity guidelines.’(cite omit). The Court does not lightly stray from the bounds of these decisions. This case, however, represents a singular and unique exception.”

The judge went on to explain all of the reasons why a sentence of life imprisonment was too long, citing the parsimony provision under § 3553(a)(2). Then, noting the Fair Sentencing Act in a footnote, the court reduced the sentence from life, down to 262 months.

Posted by: Matthew Robinson | Aug 27, 2010 9:12:37 AM

I am a CJA attorney. I have a client facing sentencing on Monday (August 30). My argument is similar to Mathew Robinson's. Our prosecutor cites 1 USC 109 and Bradley v. US 410 U.S. 605. The Bradley case appears to be the controlling authority. However, the Statute in Bradley expressly stated it does not apply to people "prosecuted" prior to X date. The 2010 FSA is silent as to when it should be applied.

Posted by: Jason Loos | Aug 28, 2010 3:01:39 PM

I think the government's argument can be distinguished on a few levels.....

First, as pointed out by Attorney Loos, the CDAPCA discussed in Bradley expressly stated it does not apply to people "prosecuted" prior to the effective date of the statute. Whereas, the FSA is silent as to this issue. Notably, the Bradley Court points out that at common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. Thus, unless Congress expressly states otherwise, the default rule is that the FSA should apply retroactively to “all prosecutions which had not reached final disposition in the highest court authorized to review them.” The FSA says nothing about prohibiting retroactive application. But, the government will rely on § 109 as authority to overcome the common law rule that the FSA applies retroactively to all prosecutions that have not reached their final dispositions.

Second, the CDAPCA in Bradley did not implicate 5th and 6th Amendment and Apprendi issues involving statutory maximum and minimum sentences. The FSA does implicate these concerns because the statute has the effect of increasing the amount of drugs necessary to reach statutory penalty thresholds. After all drug quantity is an element of the offense under § 841(b)(1) that must be charged in an indictment and proved to a jury beyond a reasonable doubt.

Third, and I think most importantly, there can be no serious dispute that the FSA has been passed in order to correct harms caused by the discriminatory impact of current crack penalties. The FSA has been signed into law to correct the wrongful sentences African-Americas have received over the past 23 years. The continued imposition of a 100:1 ratio, with its invidious racial effects is arbitrary, capricious, and lacks a rational basis. The continued application of the current penalties, in light of the obvious and known invidious racial effects of those penalties, is tantamount to a discriminatory purpose. Thus, failing to apply the new law retroactively raises serious Equal Protection and Due Process concerns.

Posted by: Matthew M. Robinson | Aug 30, 2010 12:56:00 PM

Judge Erickson in North Dakota relied on 1 USC 109. I argued 1 USC 109 only applies to REPEALED statutes, not AMENDED statutes. That argument went over like a fart in church.

I will find out what the 8th Circuit thinks in a few months.

Posted by: Jason Loos | Sep 1, 2010 4:22:17 PM

Too bad. Perhaps other district court judges will view the issue differently. ....At least the argument has been preserved for appeal.

Posted by: Matthew Robinson | Sep 3, 2010 9:32:43 AM

I'm writing your blog to continue to learn more information about the Fair sentencing Act of 2010. I was sentence to 20 due 10 in 2003 i did a total of 41 months and I'm currently on probation with a fine of 300,330 dollars yes you read it right 300,330 with a income of only 30,000 with overtime. I'm currently looking to have my sentence modified so way so how will this act help me or will i have to wait until its retroactive? Please contact me at. This was my first and only offense. Shunbrowner@yahoo.com

Posted by: Shun Browner | Feb 21, 2011 11:06:54 AM

I have a friend that is currently serving a life sentence for crack cocaine 851 enhancements. If there is inaccurate information in the PSI in support of less envolvement in a conspiracty and if the new guideline manual deleted somethings in 21D.1 under crimnal history could a crack offender request legal assistance for help, if there is proof in the PSI for minumum participation. What motions to file in order to request a reduction under the new Fair Act Sentencing of 2010. I am a friend and sending this information about you blog to a FCI Prision where it will be passed amoung hundreds of inmates and their family to visit this site for answers. Can you please help me?

Posted by: Anitra Jones | Jul 25, 2011 11:40:25 AM

I too have a friend that was sentenced to life with the cocaine/crack charge. Can someone PLEASE email information to send him in the right direction to appeal using the fair sentence act. PLEASE any information can help.

Posted by: Pam | Dec 13, 2012 10:28:04 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB