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July 15, 2011

Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue

Regular readers know that, since the Fair Sentencing Act became law in August 2010, lower courts have been divided over whether defendants who committed crack offenses before the FSA was enacted but had not yet been initially sentenced should get the benefits of the FSA's new mandatory minimum provisions.  And, as I explained in this post way back in October 2010, I have been troubled and disappointed that the Justice Department had been arguing in these "pipeline" cases that defendants should continue to be sentenced under the old now repealed 100-1 crack/powder ratio if their crimes were committed before August 3, 2010.  

I am now pleased to report than I need not be troubled or disappointed by DOJ's position on this issue anymore, because today Attorney General Eric Holder has come to see the statutory sentencing light and reversed course.  In a two-page memo to all federal prosecutors dated July 15, 2011 (and available for download below), AG Holder details his new view on this issue: 

In light of the differing court decisions -- and the serious impact on the criminal justice system of continuing to impose unfair penalties -- I have reviewed our position regarding the applicability of the Fair Sentencing Act to cases sentenced on or after the date of enactment.  While I continue to believe that the Savings Statute, 1 U.S.C. § 109, precludes application of the new mandatory minimums to those sentenced before the enactment of the Fair Sentencing Act, I agree with those courts that have held that Congress intended the Act not only to "restore fairness in federal cocaine sentencing policy" but to do so as expeditiously as possible and to all defendants sentenced on or after the enactment date. As a result, I have concluded that the law requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.  The law draws the line at August 3, however.  The new provisions do not apply to sentences imposed prior to that date, whether or not they are final.  Prosecutors are directed to act consistently with these legal principles.

Download Holder FSA memo 7.15.11

Though I am pleased that AG Holder has now seen the light on this issue of statutory interpretation, I remain deeply disappointed that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  Among the costs of this mistake has been a large number of sentencings based on the old law that now will need to be redone, not to mention many litigation resources expended as defense counsel and judges have been force to grapple with DOJ's prior position.  So while I celebrate DOJ now getting this right, I cannot help but express sadness that this reversal of course took so long.

Among the benefits of this change of position should be a quick end to lots of district and circuit (and possible SCOTUS) litigation over this pipeline issue.  But, of course, the principal benefit of this new DOJ policy is that more defendants will now be able to benefit from the fairer sentencing terms that Congress created through its enactment of the FSA last year.

Some posts on this FSA pipeline issue:

July 15, 2011 at 09:52 PM | Permalink


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thanks Doug. this is hugely helpful.

North Carolina has significantly lowered the mandatory minimum for low level nonviolent offenses under the three strike law, but made the changes effective only for offenses committed after december 1.

I think the new levels should apply immediately and I will show Holder's memo to judges as an illustration of why the new sentencing levels should be applied now.


Posted by: bruce cunningham | Jul 16, 2011 7:30:28 AM


Warm congratulations and heartfelt thank you for your central role in this. Your amicus submissions and the other compelling arguments you helped develop through the Santana case in the SDNY received wide distribution throughout the country and undoubtedly contributed to the circuit decisions that convinced DOJ to abandon its untenable position.




Posted by: Alex | Jul 16, 2011 9:52:57 AM

This welcome change in position by DOJ may lead to some challenging issues at resentencings for some defendants.

One might be difficulties with guidelines weight determinations. For example, let's suppose a defendant who pleaded guilty to a (b)(1)(A), ten-year mandatory minimum, by allocuting to only 50 grams or more of crack (the old (b)(1)(A) threshhold) actually had an easily-provable accountable weight of more than 280 grams (the current (b)(1)(A) threshhold). The government may express buyer's remorse but the original plea allocution will certainly stand and the mandatory minimum will become only five years (because the weight will be between 28 and 279 grams, now only a (b)(1)(B)--or, perhaps, zero years, if the original allocution was only to five grams or more on a (b)(1)(B) plea.

If the government believed it was originally negotiating for a ten-year sentence, what position will it take at a resentencing if the PSR's determinations on weight under represent the readily-provable weight. As those determinations were likely adopted by the sentencing court at the original sentencing, could the government prevail on a request to reopen the court's weight findings at a resentencing or could the defendant defeat that effort by arguing that the government should be collaterally estopped (or argue that the earlier findings constitute law of the case)?

The government would likely argue it wouldn't be fair to limit the guidelines' weight to that determined in a report created at a time when any weight above 50 grams but below 2.8 kilograms (above which the guidelines themselves recommend more than ten-years' imprisonment) had no significance. Because the defendant was allocuting to a ten-year minimum, it will argue, there would have been no reason to try to prove up weight over 50 grams but below 2.8 kilograms. The defendant would have to argue in response that the government could easily have anticipated future developments with respect to the FSA when it negotiated the plea agreement and/or failed to object to the PSR's weight determinations. Indeed, some of this might turn on whether one party or another objected to the PSR's original weight determinations. How this plays out in practice for the potentially large number of cases falling within the 50 gram to 2.8 kilogram range remains to be seen.

Another possible obstacle might be the sentencing court's original decision rejecting the argument that the FSA applied. Could that be considered law of the case? Would the government have to join in an application to vacate the original decision to overcome that? What if the government opposes and, if it does, what authority would a district court have to deviate from the earlier decision or, potentially a larger problem, any circuit precedent against applying the FSA to "pipeline" cases? What happens then if the circuit doesn't vacate its prior decision? What happens if the sentencing court simply declines to vacate its earlier decision despite a joint request to do that? If the plea agreement contains appeal or collateral-attack waivers, and/or if circuit precedent is to the contrary, certain defendants might face hurdles trying to get to a resentencing if all parties don't cooperate.

Hopefully, cool and reasonable heads will prevail, and all three sides will do their best to be true to what AG Holder now agrees was congressional intent all along. With good-faith on all sides, all of these potential obstacles can and should be overcome.

Alex Eisemann

Posted by: Alex E. | Jul 16, 2011 3:34:57 PM

This means that the only people who have no relief from concededly unfair crack sentences are prisoners serving pre-August 3 mandatory minimums. They must be next.

Posted by: margy | Jul 17, 2011 11:32:43 AM

Alex, I disagree. The amount admitted by the defendant in support of a guilty plea determines the applicable statutory minimum and maximum, not the "guidelines weight," as you put it. If the Holder memo is correctly implemented at resentencing, the mandatory minimum may thus be affected, as it should be. The applicable guidelines, on the other hand, should be determined by the amount which can be reliably proven at the time of sentencing, and would not be affected by this memo. The Guidelines to be applied at a resentencing are those in effect at the time of the re-sentencing, that is, the post-11/1/10 (FSA) temporary amendments (since sec 3742(g) does not apply, and in any event was held invalid by Pepper). Even if the parties stipulated otherwise, that stipulation would not be binding, as a matter of fact, on the sentencing judge. The judge, of course, is then free to vary below those guidelines, for example, under Kimbrough (because the ratio is still 18:1 not 1:1) and/or under Pepper (post-offense rehabilitation).

On the procedural points you raise, this memorandum does not create any right (or authority) to have an otherwise final sentence vacated and corrected. See 18 USC 3582(c). If on appeal, the government could confess error and consent to a remand for resentencing. Otherwise, the defendant must file a timely motion under 28 USC 2255 (within one year after the conviction became final; that is, for example, within 14 days plus one year after the entry of judgment if s/he did not appeal the sentence), which is a finality exception under 3582(c)(1)(B). The 2255 motion would claim, at least, that the sentence is predicated on statutory and constitutional error (that is, misapprehension of governing law, which is a due process violation). Under this memo, the government should now concede a resentencing on that ground. It is likewise implied in the memo (but unfortunately not expressly stated), that AUSAs should waive, not invoke, the terms of any appeal-and/or-collateral attack waivers included in applicable plea agreements insofar as they would be read to bar this relief.

Posted by: Peter G | Jul 17, 2011 2:29:38 PM

This raises some questions about what this means for cases on appeal that are currently litigating the issue? Even though I certainly hope that the DOJ's new position prevails, I'm not so sure that the DOJ's changed position means "a quick end" to such appellate litigation.

As the Appellant, is the government going to routinely file a motion to voluntarily dismiss the appeal? If an opening brief has already been filed, will the appellate courts grant the motion, or will the panel decide that they still want to weigh in on the issue and deny the motion?

As an Appellee, is the government going to concede error in its answer brief? What if briefing (or even oral argument) has already been completed? Can a concession be made in a 28(j) letter without it being based on controlling precedent? Still further, the appeals court is under no obligation to accept the concession.

And what about cases in the 7th Circuit, which has held that the FSA's effectiveness depends solely on the date of the defendant's conduct. I'm assuming that even with the government's new concession, the issue is still merely one of preservation in the district court, and it would take an en banc 7th Circuit to reverse its precedent.

Posted by: anon | Jul 17, 2011 9:25:57 PM

Similar to Peter G.'s points, there are also cases being currently litigated in the pre-sentencing stage. Even if the AUSA confesses the Motion to Apply FSA...and even if the PSR applies FSA (even though U.S. Probation and Pretrial Services is under the U.S. Courts, not DOJ)... the sentencing Judge (in the 7th Cir.) must still follow the Fisher precedent. No? Maybe a superseding indictment is the cure, i.e. from 21 U.S.C. § 841(b)(1)(B) to (b)(1)(C) to dispose of mandatory min?

Baby steps...come on Fair Sentencing Clarification Act of 2011, H.R. 2316!

Mark C. Palmer
CJA Panel Atty.

Posted by: Mark Palmer | Jul 18, 2011 9:52:13 AM

anon finally detects 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 take 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. 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.

Posted by: Bill Otis | Jul 18, 2011 12:14:05 PM

Des anyone know what case the linked copy of the letter refers to? It lists a docket number of 11-1558 at the top...

Posted by: Guest | Jul 19, 2011 11:07:13 AM

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