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January 5, 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

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January 5, 2011 at 01:19 PM | Permalink


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Hes a good man and Judge...He wants to do the right thing...Following Congress's intent, why else would they have have approved the FSA....

Posted by: Abe | Jan 5, 2011 2:56:26 PM

I think your argument here is much stronger than your argument for revisiting sentences that have been entered but have not yet been rendered final by the completion of appeals.

Posted by: Soronel Haetir | Jan 5, 2011 6:36:09 PM

Get ready for the 11th Circuit smackdown. The Court of Appeals and Judge Presnell have a long and colorful history, so stand back and wait for the fireworks.

Posted by: defendergirl | Jan 6, 2011 11:37:52 AM

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