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November 2, 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 at 05:28 PM | Permalink


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Prof. Berman:

Stay tuned. The issue is being squarely presented in the NDOH next week. We will likely get a written ruling.

Posted by: Dennis Terez | Nov 3, 2010 5:33:39 PM

DOJ issued another memo to USAOs yesterday reaffirming its position that the FSA mandatory minimums are not retroactive to crimes commited before passage of the act, citing Warden v. Marrero, 417 U.S. 653 (1974); and 1 U.S.C. ยง 109. So it appears DOJ will at least see the issue though to the Circuit Courts.

Posted by: AUSA | Nov 3, 2010 7:37:27 PM

If a law has recently been enacted, most of its drafters and supporters should still be alive. If term is ambiguous, has anyone ever interviewed the living enacters as to the real intent of legislature, as opposed to divination and mind reading?

If this has never been done, is there any procedural or constitutional obstacle to such a tactic? Naturally, both sides should be allowed to do an interview and to present their results, before a tribunal.

Posted by: Supremacy Claus | Nov 4, 2010 12:27:37 AM

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