Sentencing — crack cocaine — retroactivity

Listen to this article

Sentencing — crack cocaine — retroactivity
The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders.
Six considerations, taken together, show that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act offenders, to assure themselves by the “plain import” or “fair implication” of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the Sentencing Reform Act sets forth a special and different background principle in §3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter. Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act’s special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgate conforming amendments to the Guidelines that “achieve consistency with other guideline provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatory minimums. And consistency with “other guideline provisions” and with prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments’ effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse by creating new anomalies — new sets of disproportionate sentences — not previously present. That is because sentencing courts must apply the new Guidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress’ basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations that would make a critical difference.
635 F. 3d 336 and 417 Fed. Appx. 560, vacated and remanded.

11-5683 Dorsey v. U.S.

Breyer, J.; Scalia, J., dissenting.

Full Text