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June 24, 2011

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 at 02:01 PM | Permalink


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I find it interesting that, when regarding a Tenth Amendment challenge, those powers not expressly given to the federal government are then 'implied powers' without question.

However, when it comes to a new law that repairs a grossly biased sentencing law/policy, challenging a sentence in the absence of an explicit retro-activity clause (when in this case retro-activity would only apply to arrest and not sentencing) is both hypocritical and malicious. A grey area emerges when seeking relief from 'new' legislation when the instant offense and sentencing straddle the enactment date of law.

IMHO, what this instance shows is the United States Attorney's office summarily resisting any sentence mitigation because effective prosecution is viewed internally using these dual metrics: Conviction rates and sentence length.

So long as a prosecutors are rewarded for these metrics, the culture of ignoring specifics of the case in favor of the longest sentence possible will continue to perpetuate the current system of mass-incarceration. Thus continuing to tax society with broken lives and huge cost burdens while simultaneously making the general public no safer.

Posted by: Eric Matthews | Jun 24, 2011 3:08:43 PM


Unless I am mistaken there is a specific statute commanding that retroactivity not be granted unless the new law specifically indicates such. As I understand it that particular matter is not an outcome of judicial interpretation so much as legislative choice.

Posted by: Soronel Haetir | Jun 24, 2011 3:40:18 PM


Thank you for your response. I understand that statute and jurisprudence may mandate that inference of retroactivity, when not specifically indicated by a new law, is barred. However, much has been said in this blog about prospective sentencing post-enactment of the FSA 2010.

I think my main point was that prosecutorial challenges to post-law sentencing (when a crime was committed before enactment, but sentencing was still pending), and district court reliance on appellate courts for clarification, shows both inconsistency in governmental practice (astounding, right?) and a disregard for ethics and the obvious legislative purpose of the FSA 2010.

Ethics: the prior sentencing laws were patently unfair;

Legislative Purpose: correcting the unfair sentencing statutes that were patently unfair;

Prosecutorial enforcement of those sentencing laws in sentence-pending cases after the enactment of FSA is malicious and shows no acknowledgement of the intent of the law. It only reveals the desire for maximum sentences as practice and policy regardless of ethics, new laws, or decency.

Posted by: Eric Matthews | Jun 24, 2011 4:46:31 PM

Very good!Really nice!

Posted by: Red Bottom Heels | Jun 25, 2011 5:17:14 AM

Cocaine sentencing laws are patently unfair. Finally, it's good to see a court of appeals step up to the plate! This impressive opinion is very nicely written, succinct and clear! It was long needed.

Posted by: Ines Villejos | Jun 25, 2011 11:13:17 PM

I am unable to connect to and/or find this opinion. It does not appear on the Circuit's webpage under either published or unpublished opinions from June 24. Am I missing something?

Posted by: Emily Harrill | Jun 29, 2011 2:13:02 PM

(defense att'y). 11th Cir. seems to have withdrawn this opinion without public notice. Which could be an issue for me b/c I discussed it at length in a 2d Cir. brief filed 6/27/11. (Oh, hell, the job was getting old anyway.)

Posted by: Kim Bonstrom | Jul 1, 2011 10:01:32 PM

I contacted the Clerk who indicated in a very obtuse manner than the case was "still pending."

Posted by: Emily Harrill | Jul 5, 2011 12:08:33 PM

Kim, see the new post on this blog about the fact that this opinion is still the law of the 11th circuit -- your citations in your brief before the 2nd circuit should be okay, as nothing major appears to have been changed in the new opinion. both slip opinions are now available on the court's website.

Posted by: SK | Jul 6, 2011 4:55:40 PM

We had prohibition which in order to beome the law of the land had to be ratified by 3/4 of the states. It was later overturned in the same manner.

How is it that the War on Drugs is a law of the land but wasn't ratified? Doesn't that violate the 10th Ammendment and create violation of an inalienable right to buy/sell to a willing buyer and the right to decide what you can put into your own body?

This seems to be a state issue, not a federal issue as it is NOT a ratified ammendment.

Doesn't anybody read the Constitution which clearly outlines the diference.

Posted by: Eugene Garner | Oct 11, 2011 7:31:14 PM

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