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July 18, 2011

A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases

As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:

The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point.   For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach.  As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.  

Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence.  Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position."   Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct.  The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.

So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit.  While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me.  If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range.  So forgive me if my celebration of the Holder memo is muted.

Some prior posts on this FSA pipeline issue:

July 18, 2011 at 01:16 PM | Permalink


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Look on the bright side -- the good news is with are not dealing with a Attorney Alberto R. Gonzales memo !!!

Posted by: Steve Prof | Jul 18, 2011 2:22:41 PM

Mr. Stiller is onto something, as I noted in response to the earlier thread. I remarked that one of our commenters had detected:

...the fly in the crack dealers' ointment. Government concessions do not change law. Courts that have already rejected retroactivity are not bound to change, and are unlikely to change, their view of the Savings Statute simply because of DOJ's cave-in to the druggie bar.

Here's what's going to happen. In such circuits the AUSA will cave, as he has been ordered to do. The Court will then appoint amicus to represent the view that the law remains as the Court previously held it to be. An exactly analogous thing was done when DOJ caved in on Section 3501 in its brief in the Fourth Circuit in Dickerson v. United States. Amicus was appointed to argue the Department's abandoned position, and Judge Karen Williams famously wrote in the Court's opinion, "The Department of Justice, elevating politics over law, prohibited the U.S. Attorney's Office from arguing that Dickerson's confession is admissible under ... [section] 3501. The Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it."


The defendant eventually won Dickerson in the SCOTUS, but I wouldn't count on any such thing in this context. Miranda was an icon, and Section 3501 a waif. That is not the case here. The Savings Statute has a long and strong record in the SCOTUS.

In other words, the anti-retroactivity position is at least an even bet to survive in those circuits that have already taken it. If that happens, the defense is in big trouble once the issue gets cert. Justice Kennedy went along with the defendant in Dickerson, but this is a very different issue with a very different history. My guess is that he votes for the anti-retroactivity side, and if he does, that's the ballgame.

If this turns out to be the scenario, the defense will be worse off than it is now. Instead of having a few circuits, it will have none.

Posted by: Bill Otis | Jul 18, 2011 3:14:58 PM

Bill's analysis is powerful and his prediction not unlikely. I think the Savings Caluse is less like Miranda than he does so this might be more like this terms Pepper decision where DOJ conceded 8th Cir error than like Dickerson. Plausable either way.

Posted by: Steve Prof | Jul 18, 2011 3:46:34 PM

Here is a question I have for prosecution and defense positions alike. With the Sentencing Commission's amendment from June 30th, taking effect on November 1st of this year, won't this entire point be moot?

Here is what I mean:

Those sentenced under pre-FSA 2010 law will be allowed, after November 1st, to apply those FSA guidelines adjustments and be resentenced under them. Say a defendant is sentenced under old law in district courts who have held that the Savings Statue denies retroactive application for those who committed their crime before enactment of FSA 2010. Couldn't that defendant then turn around and apply, under the new U.S.S.C. amendment in November, to have their sentence reduced to what it would have been with FSA reductions?

It appears to me that the argument over retroactive application of FSA sentence reductions is pointless. It would simply save the court's time byapplying the sentence reductions prospectively so the sentence wouldn't be revisited by the defendant via a sentence reduction pleading in a few short months.

If I have this wrong, can somebody please clarify for me?

Posted by: Eric Matthews | Jul 18, 2011 6:27:46 PM


It's the mandatory minimums that are at issue here, so any retroactive application of the more favorable guidelines won't help defendants who are bumping up (er, down) against those mandatory minimums.


Posted by: Alex E. | Jul 18, 2011 6:59:45 PM

Eric Matthews --

The hitch in your analysis lies in the current anything-goes state of sentencing law. Under Kimbrough, Gall, Nelson and Spears, it's plain that the district judge can sentence crack cases as he pleases, without regard to USSC or even Congressional policy. The defense bar liked this fine when that policy was harsh, but now that it's lenient, it's turned into a boomerang. It used to give carte blanche to soft-sentencing judges. Now it will give carte blanche to the tougher ones.

I have been warning about this for years. Now it's arrived. November 1 can come and go, and the tough judges will be able to do as they please.

Short summary: The defense bar discovers "discretion" cuts both ways.

Posted by: Bill Otis | Jul 18, 2011 7:01:47 PM

Bill Otis -"The defense bar discovers "discretion" cuts both ways."

As it should -- I have much more faith in Article III Judges than BIll - he seems to prefer snot-nosed AUSA's.

Posted by: Steve Prof | Jul 18, 2011 7:06:30 PM

After reflecting on this for three days now, I'd like to share some thoughts on immediate steps I believe DOJ and defense counsel should be taking to implement the Holder memorandum's objectives and to preserve defendants' abilities to benefit from them.

With respect to DOJ, to implement the Holder memorandum's goal of undertaking "today" the steps needed to implement the change in position it announces, DOJ should really be taking the following steps:

1) Immediately file joint motions to vacate and/or to recall the mandates of the several circuit decisions that erroneously held that the FSA did not apply to pipeline cases; and

2) Immediately seek certiorari in the Supreme Court and request summary reversal of at least one, but hopefully all, of those circuit decisions.

With those steps, DOJ would be acting in the most efficient, expeditious and responsible way to rectify what it now says was the erroneous position it advanced for the past 11 months. It would immediately sweep away all of the potentially-problematic circuit decisions that could block district courts from implementing its welcome, but belated, reversal in position. Any failure to take these proactive steps would, in my opinion, evince a lack of commitment to righting a wrong it helped perpetuate.

As far as defense counsel are concerned, some speedy action might be required to pave the way for resentencings in light of the change in DOJ position. For defendants who were sentenced more than 14 but less than 44 days ago, I'd strongly recommend filing notices of appeal today, whether they accompanied by motions to extend the filing time or not. See Fed. R. App. P. 4(b)(4) (permitting district courts, before or after time has expired, and with or without a motion, to extend the time to file a notice of appeal by up to 30 days for "good cause").

Although 2255 petitions will be the last resort to get a resentencing for any defendent sentenced since August 3, 2011--and it is likely the timing of the Holder memorandum was influenced by the upcoming one-year deadline for the earliest defendants who were sentenced at the beginning of August 2010--an appeal with the hope of a remand for resentencing on consent is far preferable and that avenue shouldn't be squandered away because of the availability of a 2255. For those sentenced more than 44 days ago, a 2255 will likely be the only route unless some more creative solution is crafted by Congress or the local circuit.

Good luck to all. Don't get complacent when action might be required.


Posted by: Alex E. | Jul 18, 2011 7:48:52 PM

A typo: The second to last paragraph should have begun "Although 2255 petitions will be the last resort to get a resentencing for any defendent sentenced since August 3, 2010...."

Posted by: Alex E. | Jul 18, 2011 7:52:50 PM

Steve Prof --

"I have much more faith in Article III Judges than BIll - he seems to prefer snot-nosed AUSA's."

Federal judges are mostly quite good. But I have more faith in law than in judges, you bet. Judges are human beings, and human beings are prone to willfulness. One of the main purposes of civilization itself is to replace willfulness with rules.

As for the characteristic nose of your basic AUSA, I have no particular opinion. I haven't been one for a while. I don't know that they're anymore snot-nosed as a whole than defense counsel. Some of my colleagues were jerks, as were some of my adversaries. Likewise, some of my colleagues were utterly fair-minded and principled people -- as were some of my adversaries, then and now.

Posted by: Bill Otis | Jul 18, 2011 8:01:49 PM

Yes you do have this wrong because, as Alex E. pointed out, the retroactive application of the amended guidelines to previously sentenced individuals does not include application of the FSA's new mandatory minimums. The DOJ's new position allows the FSA's statutory mandatory minimums to be applied to all individuals who were sentenced after FSA's enactment. I hope that clarifies things.

On another note, I don't see anything in your analysis where the "hitch" is Kimbrough discretion. The two issues have nothing to do with each other. The amended guidelines are tied to the FSA's new 18:1 ratio; however, this means nothing for low-level offenders who would otherwise still be subject to the 100:1 mandatory minimum ratio (which was the result under the DOJ's previous position).

Posted by: DEJ | Jul 18, 2011 8:46:50 PM

I think it's important to clarify that only ONE circuit has held that the FSA's new mandatory minimums do not apply to those sentenced after the FSA's enactment. That is the 7th Circuit in Fisher. Two Circuits have come to the opposite conclusion -- the 2d Circuit in Douglas (which held that FSA applies at all sentencing hearings after Nov. 1, 2010) and the 11th Circuit in Rojas. There is a 2-1 split, in favor of applying the FSA.

Therefore, when Bill and Alex E. use the plural phrases "those circuits" and "the several circuit decisions" they are somewhat mistaken.

Posted by: DEJ | Jul 18, 2011 8:56:08 PM

Bill, my choice of "snot-nosed" was poor ...I meant it to refer to young ---seems to me that the USSG transferred discretion from judges to AUSA'a and now with Booker and it's progeny it is largely back with judges - a place I am comfortable with. As for not being more snot nosed thatn defense lawyers I agree there are a equal number of jerks between defense lawyers, AUSA's and law professors :) DEJ, Kimbrough discretion is not divorced from FSA because judges can still go lower than the 18:1 and, indeed some have both, pre and post FSA.

Posted by: Steve Prof | Jul 18, 2011 9:00:24 PM

I am not as confident that Bill's prediction would come to fruition; however, I absolutely agree that a mere change in the government's position does not guarantee success in pending appellate cases.

Because (as I pointed out in my last post), only one Circuit has problematic precedent on this issue, I don't see the main problem as lying with "Courts that have already rejected retroactivity." Instead, it will be in what courts do with cases where a) briefing has been completed (or even started) and the government (presumably) moves to dismiss the appeal as the Appellant, or b) the government confesses error as the Appellee. In such situations, it remains to be seen whether the panels a) will routinely grant the motion to dismiss the appeal and b) routinely accept the government's concession.

Concerning the merits of the position, I don't think the resolution of the issue is as clear as Bill sees it. Scalia, for example, has been insistent that statutory provisions such as the Savings Clause that bind future Congress's must be interpreted with flexibility. The Court has a -- in Bill's words -- "long and strong record" that an express statement requirement is not necessary and that one must look at the "fair and necessary" implication of the legislation. In sum, I don't believe it's accurate to say "the defense is in big trouble once [and if] the issue gets cert." In fact, I think the government's new position is the better reasoned one.

Posted by: DEJ | Jul 18, 2011 9:16:31 PM


You might be right, technically, that there's only a 2-1 split--although you mean the First (not the Second) in Douglas and Eleventh in Rojas versus the Seventh in Fisher. But it seems the Second Circuit (my own circuit) is pretty close to the position of the Seventh as well. In US v. Acoff, 634 F. 3d 200 (2d Cir. 2011) (per curium) decision, it held the FSA didn't apply to those whose convictions were not yet final on August 3, 2010. It includes dictum, really strong dictum, to the effect that the FSA applies only to offenses committed after its enactment. There were two apologetic concurring opinions by Judges Calebresi and Lynch, which address only the non-final issue and not classic "pipeline" cases involving not-yet-sentenced defendants but which, still, rely on the Savings Statute and congressional intent to conclude that there is no "retroactive" effect of the FSA. It may not be an insurmountable hurdle for district judges in the Second Circuit but I wouldn't be surprised to see some being reluctant to go against what seems like pretty clear direction. Hopefully, I'm proven wrong.


Posted by: Alex E. | Jul 19, 2011 12:49:45 AM

I am very pleased with the thought and don’t feel like adding anything in it. It a perfect answer.

Posted by: Apple iPhone 3gs | Jul 19, 2011 5:01:40 AM

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