Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases

As regular readers know, I have been following closely (and have been at times involved in) the litigation surrounding the issue of applying the Fair Sentencing Act's revised mandatory minimum sentencing provisions to not-yet-sentenced defendants.  Today, Seventh Circuit Judge Williams (joined by Judge Hamilton), has this opinion making the strongest arguments for applying the FSA to these pipeline cases, though this opinion comes as a dissent from the circuit's denial of en banc review of a panel decision (blogged here) that was decided the other way in March.

Anyone involved with on-going FSA litigation will want to review this new opinion, and here is a passage that effectively articulates what I consider the strongest justification for reading the FSA's new minimums to apply to not-yet-initially sentenced cases:

The panel recognized [the argument based on the FSA's Section 8 directive to the USSC to amend the crack guidelines ASAP], but then stated that Congress “could have dropped a hint” that it sought to apply the FSA to pending cases “in its charge to the Sentencing Commission.”  I see no hint that Congress intended otherwise.  In that very charge, in fact, Congress ordered the USSC to exercise emergency powers to conform the guidelines to the FSA “as soon as practicable,” and no later than ninety days, instead of waiting for the Commission to promulgate new guidelines under existing procedures.  When the FSA was enacted, Congress was undoubtedly aware of the default rule of applying amended guidelines to pending cases, which would require the application of a new 18:1 guideline ratio regardless of when the violation occurred.  Section 8 of the FSA sought to promote “consistency” between the guidelines and the statute, which signals an intent to apply the FSA to pending cases just as the guidelines would be.  Under the panel’s interpretation, for many defendants currently being sentenced whose conduct occurred before the FSA was enacted, the sentencing court would calculate an 18:1 guideline ratio, but would have to apply a statutory 100:1 ratio.  Oddly, under the panel’s interpretation, of these defendants, the only ones who benefit from this “emergency authority” are the worst offenders, whose new guidelines range would be reduced to the statutory minimum. Congress’s mandate in section 8 would not have made much sense if Congress did not intend the FSA to apply to defendants in Dorsey’s situation because, regardless of what the Commission promulgated, the new guidelines would simply look to the old statutory minimums. 

Some posts on this FSA issue:

• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Notable new letter to AG Eric Holder concerning application of the FSA
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

UPDATE:  Thanks to this post at SentencingSpeak, I saw this effective local article about one (of many?)individuals adversely impacted by the continued application of the old crack mandatory minimums.  The piece is headlined "Old mandatory-minimum law lengthens Pittsburgh man's crack-cocaine sentence," and here is an excerpt:

In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.

If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams....

The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.

"I know people who have shot someone and gotten less than five years in jail," said Mr. Brewer's mother, Nicole Roach, who drove more than 100 miles in a rented car to attend her son's sentencing. She emerged in shock, recalling how Mr. Brewer's guilty pleas in 2005 and 2007 to drug possession resulted in probation. "If there's a new law, it should be applied," said Mr. Brewer's fiancee, Ebony Tolliver, of Mount Washington. "How does that work?"