DORSEY v. UNITED STATES
No. 11-5683
Supreme Court of the United States
Argued April 17, 2012—Decided June 21, 2012
567 U.S. 260
*Together with No. 11-5721, Hill v. United States, also on certiorari to the same court.
BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dis-senting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, post, p. 288.
Stephen E. Eberhardt, by appointment of the Court, 565 U. S. 1154, argued the cause for petitioners in both cases. With him on the briefs for petitioner Hill in No. 11-5721 were William H. Theis, Mark D. Harris, Richard L. Spinogatti, Anna G. Kaminska, and Douglas A. Berman. Jonathan E. Hawley and Daniel T. Hansmeier filed briefs for petitioner Dorsey in No. 11-5683.
Deputy Solicitor General Dreeben argued the
Miguel A. Estrada, by invitation of the Court, 565 U. S. 1077, argued the cause and filed a brief as amicus curiae in support of the judgments below. With him on
JUSTICE BREYER delivered the opinion of the Court.
Federal statutes impose mandatory minimum prison sentences upon those convicted of federal drug crimes. These statutes
In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124 Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Act‘s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders.
I
The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act‘s language, structure, and basic objectives. Did Congress intend the Act‘s more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect?
We recognize that, because of important background principles of interpretation, we must assume that Congress did not intend those penalties to apply unless it clearly indicated to the contrary. See infra, at 273-276. But we find that clear indication here. We rest our conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not enacted the Fair Sentencing Act at all. See infra, at 276-279.
Because our conclusion rests upon an analysis of the Guidelines-based sentencing system Congress has established, we describe that system at the outset and include an explanation of how the Guidelines interact with federal statutes setting forth specific terms of imprisonment.
A
The Guidelines originate in the Sentencing Reform Act of 1984, 98 Stat. 1987. That statute created a federal Sentencing Commission instructed to write guidelines that judges would use to determine sentences imposed upon offenders convicted of committing federal crimes.
The Sentencing Reform Act directed the Commission to create in the Guidelines categories of offense behavior (e. g., “bank robbery/committed with a gun/$2500 taken“) and offender characteristics (e. g., “one prior conviction“). USSG §1A1.2, at 1; see
The Guidelines determine most drug-crime offense levels in a special way. They set forth a “Drug Quantity Table” (or Table) that lists amounts of various drugs and associates different amounts with different “Base Offense Levels” (to which a judge may add or subtract levels depending upon the “specific” characteristics of the offender‘s behavior). See USSG §2D1.1. The Table, for example, associates 400 to 499 grams of powder cocaine with a base offense level of 24, a level that would mean for a first-time offender a prison term of 51 to 63 months. §2D1.1(c).
In 1986, Congress enacted a more specific, drug-related sentencing statute, the Anti-Drug Abuse Act (1986 Drug Act), 100 Stat. 3207. That statute sets forth mandatory minimum penalties of 5 and 10 years applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense. See
The 1986 Drug Act, like other federal sentencing statutes, interacts with the Guidelines in an important way. Like other sentencing statutes, it trumps the Guidelines. Thus, ordinarily no matter what the Guidelines provide, a judge cannot sentence an offender to a sentence beyond the maximum contained in the federal statute setting forth the crime of conviction. Similarly, ordinarily no matter what range the Guidelines set forth, a sentencing judge must sentence an offender to at least the minimum prison term set forth in a statutory mandatory minimum. See
Not surprisingly, the Sentencing Commission incorporated the 1986 Drug Act‘s mandatory minimums into the first version of the Guidelines themselves. Kimbrough, supra, at 96-97. It did so by setting a base offense level for a first-time drug offender that corresponded to the lowest Guidelines range above the applicable mandatory minimum. USSC, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 53-54 (Oct. 2011) (2011 Report). Thus, the first Guidelines Drug Quantity Table associated 500 grams of powder cocaine with an offense level of 26,
In addition, the Drug Quantity Table set offense levels for small drug amounts that did not trigger the 1986 Drug Act‘s mandatory minimums so that the resulting Guidelines sentences would remain proportionate to the sentences for amounts that did trigger these minimums. 2011 Report 54. Thus, the Table associated 400 grams of powder cocaine (an amount that fell just below the amount triggering the 1986 Drug Act‘s 5-year minimum) with an offense level of 24, which for a first-time offender meant a sentencing range of 51 to 63 months (the range just below the 5-year minimum). USSG §2D1.1 (Oct. 1987). Following the 100-to-1 crack-to-powder ratio, the Table associated four grams of crack (an amount that also fell just below the amount triggering the 1986 Drug Act‘s 5-year minimum) with an offense level of 24. Ibid.
The Commission did this not because it necessarily thought that those levels were most in keeping with past sentencing practice or would independently have reflected a fair set of sentences, but rather because the Commission believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act‘s basic “proportionality” objective. See Kimbrough, 552 U. S., at 97; USSG § 1A1.3 (Nov. 2011); 2011 Report 53-54, 349, and n. 845. For this reason, the Commission derived the Drug Quantity Table‘s entire set of crack and powder cocaine offense levels by using the 1986 Drug Act‘s two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set proportional offense levels for other drug amounts. Ibid.
B
During the next two decades, the Commission and others in the law enforcement community strongly criticized Congress’ decision to set the crack-to-powder mandatory minimum ratio at 100 to 1. The Commission issued four separate reports telling Congress that the ratio was too high and unjustified because, for example, research showed the relative harm between crack and powder cocaine less severe than 100 to 1, because sentences embodying that ratio could not achieve the Sentencing Reform Act‘s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality” goal of treating different offenders (e. g., major drug traffickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences. Kimbrough, supra, at 97-98; see, e. g., USSC, Special Report to the Congress: Cocaine and Federal Sentencing Policy 197-198 (Feb. 1995) (1995 Report); USSC, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 91, 103 (May 2002) (2002 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007) (2007 Report). The Commission also asked Congress for new legislation embodying a lower crack-to-powder
In 2010, Congress accepted the Commission‘s recommendations, see 2002 Report 104; 2007 Report 8-9, and n. 26, and enacted the Fair Sentencing Act into law. The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively). §2(a), 124 Stat. 2372. The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18 to 1. (The Act also eliminated the 5-year mandatory minimum for simple possession of crack. §3, 124 Stat. 2372.)
Further, the Fair Sentencing Act instructed the Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” §8(2), id., at 2374. And it directed the Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days” after the new Act took effect. §8(1), ibid.
The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on November 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent version of those Guidelines amendments took effect on November 1, 2011. See 76 id., at 24960 (2011).
C
With this background in mind, we turn to the relevant facts of the cases before us. Corey Hill, one of the petitioners, unlawfully sold 53 grams of crack in March 2007, before the Fair Sentencing Act became law. App. in No. 11-5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986 Drug Act, an offender who sold 53 grams of crack was subject to a 10-year mandatory minimum.
The second petitioner, Edward Dorsey (who had previously been convicted of a drug felony), unlawfully sold 5.5 grams of crack in August 2008, before the Fair Sentencing Act took effect. App. in No. 11-5683, pp. 9, 48-49, 57-58 (hereinafter Dorsey
Moreover, as of Dorsey‘s sentencing in September 2010, the unrevised Guidelines (reflecting the 1986 Drug Act‘s old minimums) were still in effect. The Commission had not yet finished revising the Guidelines to reflect the new, lower statutory minimums. And the basic sentencing statute, the Sentencing Reform Act, provides that a judge shall apply the Guidelines that “are in effect on the date the defendant is sentenced.”
The sentencing judge, however, had the legal authority not to apply the Guidelines at all (for they are advisory). But he also knew that he could not ignore a minimum sentence contained in the applicable statute. Dorsey App. 67-68. The judge noted that, even though he was sentencing Dorsey after the effective date of the Fair Sentencing Act, Dorsey had committed the underlying crime prior to that date. Id., at 69-70. And he concluded that the 1986 Drug Act‘s old minimums, not the new Fair Sentencing Act, applied in those circumstances. Ibid. He consequently sentenced Dorsey to the 1986 Drug Act‘s 10-year mandatory minimum term. Id., at 80. The Court of Appeals for the Seventh Circuit affirmed, United States v. Fisher, 635 F. 3d 336 (2011), and denied rehearing en banc, 646 F. 3d 429 (2011) (per curiam); see also United States v. Holcomb, 657 F. 3d 445 (CA7 2011).
The Courts of Appeals have come to different conclusions as to whether the Fair Sentencing Act‘s more lenient mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date that Act took effect, namely, August 3, 2010. Compare United States v. Douglas, 644 F. 3d 39, 42-44 (CA1 2011) (Act applies), and United States v. Dixon, 648 F. 3d 195, 203 (CA3 2011) (same), with 635 F. 3d, at 339-340 (Act does not apply), United States v. Sidney, 648 F. 3d 904, 910 (CA8 2011) (same), and United States v. Tickles, 661 F. 3d 212, 215 (CA5 2011) (per curiam) (same). In light of that disagreement, we granted Hill‘s and Dorsey‘s petitions for certiorari. Since petitioners and the Government both take the position that the Fair Sentencing Act‘s new minimums do apply in these circumstances, we appointed as amicus curiae Miguel Estrada to argue the contrary position. He has ably discharged his responsibilities.
II
A
The timing issue before us is difficult in part because relevant language in different statutes argues in opposite directions. See Appendix A, infra. On the one hand, a federal saving statute, Act of Feb. 25, 1871 (1871 Act), §4, 16 Stat. 432, phrased in general terms, provides that a new criminal statute that “repeal[s]” an older criminal statute shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so expressly provide.”
On the other hand, the Sentencing Reform Act says that, regardless of when the offender‘s conduct occurs, the applicable Guidelines are the ones “in effect on the date the defendant is sentenced.”
Courts that have held that they must apply the old, higher 1986 Drug Act minimums to all pre-Act offenders, including those sentenced after the Fair Sentencing Act took effect, have emphasized that the 1871 Act requires that result unless the Fair Sentencing Act either expressly says or at least by fair implication implies the contrary. See 635 F. 3d, at 339-340; Sidney, supra, at 906-908; Tickles, supra, at 214-215; see also Holcomb, supra, at 446-448 (opinion of Easterbrook, J.). Courts that have concluded that the Fair Sentencing Act‘s more lenient penalties apply have found in that Act, together with the Sentencing Reform Act and other related circumstances, indicia of a clear congressional intent to apply the new Act‘s minimums. See Douglas, supra, at 42-44; Dixon, supra, at 199-203; see also Holcomb, 657 F. 3d, at 454-457 (Williams, J., dissenting from denial of rehearing en banc); id., at 461-463 (Posner, J., dissenting from denial of rehearing en banc). We too take the latter view. Six considerations, taken together, convince us that Congress intended the Fair Sentencing Act‘s more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are 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. It is true that the 1871 Act uses the words “expressly provide.”
Thus, the Court has said that the 1871 Act “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., supra, at 465 (emphasis added). And in a comparable context the Court has emphasized that the Administrative Procedure Act‘s use of the word “expressly” does not require Congress to use any “magical passwords” to exempt a later statute from the provision. Marcello v. Bonds, 349 U. S. 302, 310 (1955). Without requiring an “express” statement, the Court has described the necessary indicia of congressional intent by the terms “necessary implication,” “clear implication,” and “fair implication,” phrases it has used interchangeably. Great Northern R. Co., supra, at 465, 466; Hertz v. Woodman, 218 U. S. 205, 218 (1910); Marrero, supra, at 660, n. 10. One Member of the Court has said we should determine whether “the plain import of a later statute directly conflicts with an earlier statute,” and, if so, “the later enactment governs, regardless of its compliance with any earlier-enacted requirement of an express reference or other ‘magical password.‘” Lockhart v. United States, 546 U. S. 142, 149 (2005) (SCALIA, J., concurring).
Hence, the Court has treated the 1871 Act as setting forth an important background principle of interpretation. The Court has also assumed Congress is well aware of the background principle when it enacts new criminal statutes. E. g., Great Northern R. Co., supra, at 465; Hertz, supra, at 217; cf. Marcello, supra, at 310. And the principle requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act offenders, to assure themselves that ordinary interpretive considerations point clearly in that direction. Words such as “plain import,” “fair implication,” or the like reflect the need for that assurance. And it is that assurance, which we shall assume is conveyed by the phrases “plain import” or “fair implication,” that we must look for here.
Second, the Sentencing Reform Act sets forth a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall consider,” among other things, the “sentencing range” established by the Guidelines that are “in effect on the date the defendant is sentenced.”
Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act background principle here. A section of the Fair Sentencing Act entitled “Emergency Authority for United States Sentencing Commission” requires the Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “conforming amendments” to the Guidelines that “achieve consistency with other guideline provisions and applicable law.” §8, 124 Stat. 2374. Read most naturally, “applicable law” refers to the law as changed by the Fair
Fourth, applying the 1986 Drug Act‘s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal con-duct involving the same amount of crack and were sentenced at the same time would receive radically different sentences. For example, a first-time post-Act offender with five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment, while an otherwise identical pre-Act offender would have to receive the 5-year mandatory minimum. Compare USSG §2D1.1(c) (Nov. 2011) with
Moreover, unlike many prechange/postchange discrepancies, the imposition of these disparate sentences involves roughly contemporaneous sentencing, i. e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentencing statutes typically seek to combat. See, e. g.,
Finally, one cannot treat such problems as if they were minor ones. Given the 5-year statute of limitations for federal drug offenses, the 11-month median time between indictment and sentencing for those offenses, and the approximately 5,000 federal crack offenders convicted each year, many pre-Act offenders were not (and will not be) sentenced until after August 3, 2010, when the new, more lenient mandatory minimums took effect. See
Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guidelines (consistent with the Fair Sentencing Act‘s new minimums) to pre-Act offenders, see supra, at 275, and the 1986 Drug Act‘s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums.
Consider, for example, a first-time offender convicted of possessing with intent to distribute four grams of crack. No mandatory sentence, under the 1986 Drug Act or the Fair Sentencing Act, applies to an offender possessing so small an amount. Yet under the old law, the Commission, charged with creating proportionate sentences, had created a Guidelines range of 41 to 51 months for such an offender, a sentence proportional to the 60 months that the 1986 Drug Act required for one who trafficked five grams of crack. See supra, at 266-268; USSG §2D1.1(c) (Nov. 2009).
The Fair Sentencing Act, however, requires the Commission to write new Guidelines consistent with the new law. The Commission therefore wrote new Guidelines that provide a sentencing range of 21 to 27 months—about two years—for the first-time, 4-gram offender. See USSG §2D1.1(c) (Nov. 2011). And the Sentencing Reform Act requires application of those new Guidelines to all offenders (including pre-Act offenders) who are sentenced once those new Guidelines take effect. See
For example, imagine that on July 1, 2010, both Smith and Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four grams of crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take effect. Smith‘s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’ sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, would here have created a new disparate sentencing “cliff.”
Nor can one say that the new Act would produce disproportionalities like this in only a few cases. In fiscal year 2010, 17.8 percent of all crack offenders were convicted of offenses not subject to the 1986 Drug Act‘s minimums. 2011 Report 191. And since those minimums apply only to some drug offenders and they apply in different ways, one can find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve more uniform, more proportionate
Sixth, we have found no strong countervailing consideration. Amicus and the dissent argue that one might read much of the statutory language we have discussed as embodying exceptions, permitting the old 1986 Drug Act mini-
mums to apply to pre-Act offenders sentenced after August 3, 2010, when the Fair Sentencing Act took effect. The words “applicable law” in the new Act, for example, could, linguistically speaking, encompass the 1986 Drug Act minimums applied to those sentenced after August 3. Post, at 291-292 (SCALIA, J., dissenting). Moreover, Congress could have insisted that the Commission write new Guidelines with special speed to assure itself that new, post-August 3 offenders—but not old, pre-August 3 offenders—would receive the benefit of the new Act. Post, at 292-294. Further, amicus and the dissent note that to apply the new Act‘s minimums to the old, pre-August 3 offenders will create a new disparity—one between pre-Act offenders sentenced before August 3 and those sentenced after that date. Post, at 295.
We do not believe that these arguments make a critical difference. Even if the relevant statutory language can be read as amicus and the dissent suggest and even if Congress might have wanted Guidelines written speedily simply in order to apply them quickly to new offenders, there is scant indication that this is what Congress did mean by the language in question nor that such was in fact Congress’ motivation. The considerations we have set forth, supra, at 276-279, strongly suggest the contrary.
We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3 will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing sentences (unless Congress intends reopening sentencing proceedings concluded prior to a new law‘s effective date). We have explained how in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. Supra, at 275; compare
For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act‘s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act‘s “plain import” or “fair implication.”
B
We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 275-276. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010—a period after the new Act‘s effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act‘s new mandatory minimums apply to them?
In our view, the new Act‘s lower minimums apply to them as well. Our reason is that the statute simply instructs the
For these reasons, if the Fair Sentencing Act‘s new minimums apply to all of those sentenced after August 3, 2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act‘s application is keyed to a later date, thereby leaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date.
* * *
We vacate the Court of Appeals’ judgments and remand these cases for further proceedings consistent with this opinion.
It is so ordered.
APPENDIXES
A
Act of Feb. 25, 1871, § 4, 16 Stat. 432,
“Repeal of statutes as affecting existing liabilities
“The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
Sentencing Reform Act of 1984,
“Imposition of a sentence
“. . . FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE. . . . The court, in determining the particular sentence to be imposed, shall consider . . .
. . . . .
“the kinds of sentence and sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .
“that . . . are in effect on the date the defendant is sentenced. . . .”
Fair Sentencing Act of 2010,
“EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING COMMISSION
“The United States Sentencing Commission shall—
“(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act, in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987 (
28 U. S. C. [§] 994 note ), as thoughthe authority under that Act had not expired; and “(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.”
B
The following chart shows the sentencing scheme that would result for first-time pre-Act crack offenders if the 1986 Drug Act‘s old 100-to-1 mandatory minimums remain in effect after the Fair Sentencing Act‘s new 18-to-1 Guidelines became effective.
1986 Drug Act Minimums and Fair Sentencing Act Guidelines for Category I Offenders With No Prior Drug Felonies
| Drug Quantity | Mandatory Minimum | Guidelines Range | Sentence |
|---|---|---|---|
| 1 g | 0 months | 10-16 | 10-16 |
| 2 g | 0 | 15-21 | 15-21 |
| 3 g | 0 | 21-27 | 21-27 |
| 4 g | 0 | 21-27 | 21-27 |
| 5 g | 60 | 21-27 | 60 |
| 10 g | 60 | 27-33 | 60 |
| 15 g | 60 | 33-41 | 60 |
| 20 g | 60 | 41-51 | 60 |
| 25 g | 60 | 51-63 | 60-63 |
| 35 g | 60 | 63-78 | 63-78 |
| 50 g | 120 | 63-78 | 120 |
| 100 g | 120 | 63-78 | 120 |
| 150 g | 120 | 78-97 | 120 |
| 200 g | 120 | 97-121 | 120-121 |
| 500 g | 120 | 121-151 | 121-151 |
| 1,500 g | 120 | 151-188 | 151-188 |
The chart illustrates the disproportionate sentences that such a scheme would create. See supra, at 278-279. For one thing, it would create sentencing “cliffs” at the 1986 Drug Act‘s old triggering amounts of 5 grams and 50 grams (where the old minimums would entirely trump the new Guidelines), resulting in radically different Guidelines sentences for small differences in quantity. For another, because of those “cliffs,” the scheme would create similar Guidelines sen-tences for offenders who dealt in radically different amounts of crack, e. g., 50 grams versus 500 grams.
To be sure, as amicus points out, Congress has provided two mechanisms through which an offender may escape an otherwise applicable mandatory minimum, diminishing this problem for some offenders. First, an offender may escape a minimum by providing substantial assistance in the investigation or prosecution of another person.
Crack Offender Categories by Application of 1986 Drug Act Mandatory Min. (FY 2010)
| Offender Category | Total Offenders | Total With Quantity Carrying Mandatory Min. | Percent With Quantity Carrying Mandatory Min. | Total Relieved of Mandatory Min. Appl. | Percent Relieved of Mandatory Min. Appl. |
|---|---|---|---|---|---|
| I | 1,055 | 890 | 84.4% | 525 | 59.0% |
| II | 556 | 445 | 80.0% | 129 | 29.0% |
| III | 865 | 703 | 81.3% | 208 | 29.6% |
| IV | 556 | 469 | 84.4% | 124 | 26.4% |
| V | 380 | 308 | 81.1% | 89 | 28.9% |
| VI | 1,345 | 1,086 | 80.7% | 332 | 30.6% |
| All | 4,757 | 3,901 | 82.2% | 1,407 | 36.0% |
Yet similar sentencing anomalies would result for repeat offenders if the 1986 Drug Act‘s minimums remain in effect after the Fair Sentencing Act‘s Guidelines became effective. Take, for example, Category II offenders.
1986 Drug Act Minimums and Fair Sentencing Act Guidelines for Category II Offenders With No Prior Drug Felonies
| Drug Quantity | Mandatory Minimum | Guidelines Range | Sentence |
|---|---|---|---|
| 1 g | 0 months | 12-18 | 12-18 |
| 2 g | 0 | 18-24 | 18-24 |
| 3 g | 0 | 24-30 | 24-30 |
| 4 g | 0 | 24-30 | 24-30 |
| 5 g | 60 | 24-30 | 60 |
| 10 g | 60 | 30-37 | 60 |
| 15 g | 60 | 37-46 | 60 |
| 20 g | 60 | 46-57 | 60 |
| 25 g | 60 | 57-71 | 60-71 |
| 35 g | 60 | 70-87 | 70-87 |
| 50 g | 120 | 70-87 | 120 |
| 100 g | 120 | 70-87 | 120 |
| 150 g | 120 | 87-108 | 120 |
| 200 g | 120 | 108-135 | 120-135 |
| 500 g | 120 | 135-168 | 135-168 |
| 1,500 g | 120 | 168-210 | 168-210 |
As the chart illustrates, for Category II offenders accountable for 5 to 22 grams of crack or for 50 to 195 grams, the 100-to-1 minimums would entirely trump the 18-to-1 Guidelines, producing the same anomalies—dissimilar sentences for similar quantities and similar sentences for dissimilar quantities—described above.
In contrast, a scheme with the Fair Sentencing Act‘s 18-to-1 minimums and new Guidelines produces the proportionality in sentencing that Congress intended in enacting the Sentencing Reform Act and the Fair Sentencing Act.
Fair Sentencing Act Minimums and Guidelines for Category II Offenders With No Prior Drug Felonies
| Drug Quantity | Mandatory Minimum | Guidelines Range | Sentence |
|---|---|---|---|
| 1 g | 0 months | 12-18 | 12-18 |
| 2 g | 0 | 18-24 | 18-24 |
| 3 g | 0 | 24-30 | 24-30 |
| 4 g | 0 | 24-30 | 24-30 |
| 5 g | 0 | 24-30 | 24-30 |
| 10 g | 0 | 30-37 | 30-37 |
| 15 g | 0 | 37-46 | 37-46 |
| 20 g | 0 | 46-57 | 46-57 |
| 25 g | 0 | 57-71 | 57-71 |
| 35 g | 60 | 70-87 | 70-87 |
| 50 g | 60 | 70-87 | 70-87 |
| 100 g | 60 | 70-87 | 70-87 |
| 150 g | 60 | 87-108 | 87-108 |
| 200 g | 60 | 108-135 | 108-135 |
| 500 g | 120 | 135-168 | 135-168 |
| 1,500 g | 120 | 168-210 | 168-210 |
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
In the Fair Sentencing Act of 2010,
I
The Court starts off on the right foot by acknowledging, ante, at 272-273, that the ameliorative amendments at issue here trigger application of the general saving statute. Enacted in 1871 to reverse the common-law rule that the repeal or amendment of a criminal statute would abate all nonfinal convictions under the repealed or amended statute, see Warden v. Marrero, 417 U. S. 653, 660 (1974), the saving statute provides in relevant part:
“The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
1 U. S. C. § 109 .
By reducing the statutory penalties for crack cocaine offenses, the Fair Sentencing Act “repeal[ed]” the former penalties; for defendants who committed their offenses (and hence “incurred” the penalties) while the prior law was in force,
Although
Understanding the interpretive problem posed by these cases as one of implied repeal helps to explain the Court‘s observation, ante, at 274-275, that what is required to override
II
A
The considerations relied upon by the Court do not come close to satisfying the demanding standard for repeal by implication. As an initial matter, there is no persuasive force whatever to the Court‘s observation that continuing to apply the prior mandatory minimums to preenactment offenders would “involve imposing upon the pre-Act offender a pre-Act sentence at a time after Congress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long.” Ante, at 277. That is true whenever Congress reduces a criminal penalty, and so is a consequence that Congress affirmatively embraced when it said in
The Court also stresses that the Fair Sentencing Act instructs the Sentencing Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “such conforming amendments” to the Sentencing Guidelines “as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.”
That conclusion simply does not follow. For one thing, the argument begs the very question presented here: What is the “applicable law” relevant to preenactment offenders who are sentenced after enactment? The Commission could well have answered this question by concluding that, in light of
Moreover, even if one takes it as given that the Commission‘s new crack cocaine Guidelines would apply the lower 18-to-1 ratio to all defendants sentenced after the new Guidelines were put in place, it would not follow that Congress necessarily expected the new mandatory minimums to apply to preenactment offenders. The directive to update the Guidelines on an emergency basis is equally consistent with Congress‘s seeking to avoid a mismatch between the Guidelines and the statutory penalties for postenactment offenders sentenced shortly after the Act‘s effective date.
Petitioners and the Government discount this explanation, noting that because of the lags associated with investigating and prosecuting drug offenses, most of the defendants sentenced on the 91st day after the Fair Sentencing Act‘s enactment were sure to be pre-Act offenders. If Congress did not expect the new mandatory minimums to apply to such offenders, they say, there would have been no need to ensure that revised Guidelines were in place so quickly. But most is not all, and it would have been entirely sensible for Congress to worry that some post-Act offenders—offenders clearly subject to the new mandatory minimums—would nonetheless be sentenced under outdated Guidelines if the Guidelines were not revised in short order.
The Court‘s last argument is that continuing to apply the prior mandatory minimums to preenactment offenders would lead to anomalous, disproportionate sentencing results. It is true enough, as the Court notes, ante, at 278-279, that applying the prior mandatory minimums in tandem with the new Guidelines provisions—which track the new, more lenient mandatory minimums—leads to a series of “cliffs” at the mandatory minimum thresholds. But this does not establish that Congress clearly meant the new mandatory minimums to apply to preenactment offenders. As noted above, supra, at 291-293, there is no reason to take the Guidelines amendments ultimately promulgated by the Commission as a given when evaluating what Congress would have understood when the Fair Sentencing Act was enacted. The Commission could have promulgated amendments that ameliorated this problem by retaining the old Guidelines ranges for preenactment offenders.
Moreover, although the cliffs produced by the mismatch between Guidelines and
B
Petitioners and the Government press a handful of additional arguments which require only brief discussion. They first contend that an intention to apply the new mandatory minimums to preenactment offenders can be inferred from
The Government also notes that the Senate bill that ultimately became the Fair Sentencing Act was based on an ear-lier bill which contained a provision that would have delayed the Act‘s effective date until 180 days after passage, and specifically provided that “[t]here shall be no retroactive application of any portion of this Act.” H. R. 265, 111th Cong., 1st Sess., § 11 (2009). Even if one is inclined to base inferences about statutory meaning on unenacted versions of the relevant bill, but see Hamdan v. Rumsfeld, 548 U. S. 557, 668 (2006) (SCALIA, J., dissenting), this argument from drafting history is unpersuasive. That Congress considered and rejected a proposal that would have delayed application of the Act until 180 days after passage says nothing about whether the version finally enacted applies to defendants whose criminal conduct pre-dated the Act. Moreover, the same bill would have provided permissive authority for the Commission to promulgate amended Guidelines on an emergency basis, see § 8(a), notwithstanding its delayed effective date provision. This point undercuts the argument that emergency amendment authority and immediate application of the new statutory penalties go hand in hand.
Petitioners finally appeal to the rule of lenity and the canon of constitutional avoidance. But the rule of lenity has no application here, because the background principle supplied by
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In the end, the mischief of the Court‘s opinion is not the result in these particular cases, but rather the unpredictability it injects into the law for the future. The Court‘s decision is based on “[s]ix considerations, taken together,” ante, at 273, and we are not told whether any one of these considerations might have justified the Court‘s result in isolation, or even the relative importance of the various considerations. One of them (the Commission‘s emergency authority to issue conforming amendments to the Guidelines) is a particular feature of the statute at issue in these cases, but another (the fact that applying the prior statutory penalties alongside the new Guidelines leads to a mismatch) is a general feature of a sentencing scheme that calibrates Guidelines ranges to the statutory mandatory minimums for a given offense. Are we to conclude that, after the Sentencing Reform Act,
That is most unfortunate, because the whole point of