United States v. Holcomb
2011 U.S. App. LEXIS 17691
| 7th Cir. | 2011Background
- Four appeals challenge whether the Fair Sentencing Act of 2010 (FSA) applies to sentences imposed after its enactment.
- The district judges had sentenced defendants for crack cocaine offenses with pre-FSA quantities that would trigger different minimums under the old law and the FSA.
- Initial panel (Fisher) held that retroactivity could be limited; later events, including the Attorney General’s memorandum, prompted reconsideration in light of retroactivity questions.
- The Attorney General issued a memorandum asserting the FSA’s new mandatory minimums apply to all sentencings after August 3, 2010, regardless of conduct date.
- Circuits diverged, with First, Third, Eleventh, and others adopting broader retroactivity; the Eighth Circuit rejected retroactivity for pre-enactment conduct.
- The Seventh Circuit denied rehearing en banc; Judge Williams dissented arguing the FSA should apply to all post-enactment sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the FSA apply to all post-enactment sentencings, not only those for conduct after August 3, 2010? | Govt and supporting circuits argue universal post-enactment application. | Fisher and similar views urged limited or no retroactivity for pre-enactment conduct. | FSA applies to all post-enactment sentencings. |
| Does 1 U.S.C. § 109 (General Saving Statute) permit partial retroactivity of the FSA? | The government argues §109 allows partial retroactivity via related provisions. | Dissenting view emphasizes §109 forecloses partial retroactivity absent express language. | Section 109 forecloses partial retroactivity; the FSA’s effect is not limited to some defendants. |
| What role do § 8 and § 10 of the FSA play in retroactivity and guideline amendments? | Emergency authority and guidelines revision could justify immediate effects. | The supports for immediate effects are unpersuasive or inconsistent with pre-enactment penalties. | § 8 and related provisions support immediate application to all post-enactment sentencings. |
| Should the transition date for applying new penalties be August 3, 2010 or another date like November 1, 2010? | Some circuits and commentary advocate broader retroactivity dating from enactment. | Judicial timing should align with legislative compromise and savings provisions. | The fair implication is that the FSA’s mandatory minimums apply to all post-enactment sentencings. |
Key Cases Cited
- United States v. Fisher, 635 F.3d 336 (7th Cir.2011) (panel decision addressing retroactivity of the FSA)
- United States v. Bell, 624 F.3d 803 (7th Cir.2010) (holding §109 makes the 2010 Act prospective absent express retroactivity)
- Warden v. Marrero, 417 U.S. 653 (U.S. 1974) (saving statute mechanics and retroactivity implications in parole context)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (test for retroactivity and legislative effects on pre-enactment conduct)
- Neal v. United States, 516 U.S. 284 (U.S. 1996) (guide on how guidelines relate to statutory penalties; not controlling here)
- Great Northern Ry. Co. v. United States, 208 U.S. 452 (U.S. 1908) (fair/necessary implication concept in saving-statute context)
- United States v. Douglas, 644 F.3d 39 (1st Cir.2011) (first circuit acknowledging broader retroactivity for FSA)
- United States v. Rojas, 645 F.3d 1234 (11th Cir.2011) (circuits diverged on transition date for FSA retroactivity)
- United States v. Dixon, 648 F.3d 195 (3d Cir.2011) ( Third Circuit adopting retroactive application to post-enactment sentences)
- Abbott v. United States, 130 S. Ct. 2083 (U.S. 2010) (reaffirmed lenity considerations in interpreting criminal statutes)