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.