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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 at 01:10 PM | Permalink


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Is something the president could remedy with commutations? (Although it is doubtful he would do so, based on his current track record.)

Posted by: Mike | Feb 10, 2011 1:44:36 PM


Posted by: Doug B. | Feb 10, 2011 2:25:17 PM

If, as Judge Lynch says, the problem was mere Congressional "inattention" -- something I very much doubt -- the solution is to go back to Congress and get its attention.

Posted by: Bill Otis | Feb 10, 2011 3:32:22 PM


The attention span of Congress, except for being tough on crime political posturing (a platitude, check Mencken for the real definition), is less than that of a pre-K class.

Why? Money, votes, misleading MSM. Don't look smart on crime, but keep repeating the same platiudes and hope they work again.

They won't! That is why America is bankrupt, morally, spiritually and financially. We use to have American exceptionalism (real non-lawyers on the Supreme Court, instead of DOJ government apologists), until the majority of it's citizens (voters) were educated by American Public Education and the teachers were supported by their public unions, and (surprise), public unions could buy votes with tax-payer dollars. Just like LE.

Posted by: albeed | Feb 10, 2011 10:15:23 PM

It would have been nice to see Calabresi and Lynch expressly suggest that the President could provide class-level relief by commuting all sentences in this category to whatever sentences the prisoners would have received under the FSA... (I'm assuming they didn't say that because Doug surely would have highlighted it if they had.)

Posted by: Anon | Feb 11, 2011 11:52:27 AM

It is odd that Judge Lynch would express an opinion on an issue not raised by the case -- viz., whether the FSA should apply to cases not yet sentenced at the time of its passage. The arguments for applying the FSA are stronger in those cases than in a case like Acoff, where sentence was imposed before the efffective date of the FSA.

Also, the Sentencing Commission is likely to be encouraged in what I suspect is its present inclination not to make the new crack guidelines retroactive by Judge Lynch's gratuitous comments about how Congress probably thought it would be a "huge burden" on courts, and "simply too difficult to . . . reprosecute the cases as they might have played out had the provisions of the FSA been in effect all along." Reprosecute? Much as I admire Judge Lynch, that is a really strange word to use. He also uses "rewind" and "unscramble" but "reprosecute" is what got my attention.

Posted by: margy | Feb 12, 2011 10:56:23 PM

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