OPINION
Lyndon Baptist appeals his statutorily mandated, five-year minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at least five grams of crack cocaine, under 21 U.S.C. §§ 846 and 841(a)(1). The district judge, expressing his intention to “make as stable a record as [he could] for any other court that might look at this [case],” stated that he “did not believe [that the statutorily mandated minimum] is a just sentence” because its imposition was “too much,” “disproportionate,” “wrong from a moral sense,” and “an example of the effect of the crack cocaine disparity that adversely affects African Americans,” and that his “stomach hurt[]” for sentencing to five years in prison a man who did no more than facilitate a “local,” fourteen-gram crack cocaine transaction between his cousin and an informant. On August 3, 2010, while this appeal was pending, President Obama signed into law the Fair Sentencing Act, enacted “[t]o restore fairness to [fjederal cocaine sentencing.” Pub.L. No. 111-220, 124 Stat. 2372 (amending 21 U.S.C. § 841) (“the Act”). The Act reduced the 100-to-l crack-powder sentencing disparity under § 841(b)(1), “now recognized by virtually everyone, including Congress, to have imposed unnecessarily and unfairly severe mandatory sentences.”
United States v. Acoff,
The Fair Sentencing Act amended the statutory provisions under which Baptist had been sentenced by increasing from five to twenty-eight grams the amount necessary to trigger a five-year mandatory minimum sentence, and from fifty grams to 280 grams the amount of crack neces
*1227
sary for a ten-year mandatory minimum.
See
§ 2(a),
There is no dispute that the mandatory minimum would not apply to Baptist if the transaction to which he pled guilty had occurred after the date on which the President signed the Act amending 21 U.S.C. § 841. The transaction at issue in this case, however, occurred prior to the date the Act was signed into law, as did the imposition of Baptist’s sentence. He seeks to have his pre-enactment sentence for his pre-enactment transaction vacated with instructions for resentencing pursuant to the Fair Sentencing Act. He argues that the Act should be applied retroactively to reduce the harsh and unfair sentence imposed on him before the Act’s passage under the version of § 841 that Congress has since modified.
We review de novo the question of law, whether a federal statute applies to a sentence that was imposed prior to the date of the new statute’s enactment.
See Saravia-Paguada v. Gonzales,
[t]he 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.
The Supreme Court has held that the General Savings Statute operates to prevent the retroactive application of an ameliorative statute like the Fair Sentencing Act, absent an expression of congressional intention to apply it to pre-enactment conduct.
See Warden, Lewisburg Penitentiary v. Marrero,
The plain language and legislative history of the Fair Sentencing Act give no indication that the less harsh sentences for which the Act provides apply to defendants whose conduct and sentencing occurred before the law’s enactment. Certainly, there is no express provision or statement in the Fair Sentencing Act providing for a post-Act reduction in pre-enactment sentences such as Baptist’s. Nor do we find in the Act itself the requisite implication that it was meant to apply to such sentences. There are no committee reports or other documents attesting to congres *1228 sional intent with respect to the reduction of sentences already imposed. 1
We cannot derive congressional intention that the Act apply to sentences already imposed simply from its grant of “emergency authority” to the Sentencing Commission to promulgate guidelines “not later than 90 days after the date of [the Act’s] enactment.” Fair Sentencing Act § 8,
Nor can we infer congressional intent of the Act’s retroactive application to sentences such as Baptist’s from a letter sent by its sponsors to the Attorney General three months after the Act’s enactment, asking him “to apply its modified mandatory mínimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.” Letter from Senators Durbin and Leahy to Attorney General Holder, Nov. 17, 2010 (emphasis added). In urging application of the Act to defendants who had not yet been sentenced, Senators Durbin and Leahy in effect conceded that it did not apply to defendants like Baptist who had already been sentenced under the old law. Also, the Acting Assistant Attorney General’s reply sets forth the Justice Department’s position that the Fair Sentencing Act “applies only prospectively, that is, solely to offense conduct occurring on or after the date of its enactment.” Letter from Acting Assistant Attorney General Agrast to Senators Durbin and Leahy, Apr. 25, 2011.
As to Baptist’s constitutional challenges, our court rejected the Cruel and Unusual Punishment challenge to the pre-Act mandatory minimum sentences in
United States v. Hoyt,
Like every other circuit court to have considered this question, we can find no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.
See United States v. Bullard,
As individual judges, we believe that the result that we reach in this case — affirming a sentence of sixty months’ imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory — subverts justice and erodes the legitimacy of the criminal justice system. 2 We are without power, however, to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence that the district judge understandably declared made his “stomach hurt[ ]” because it was “disproportionate [with respect to] African Americans” and “wrong from a moral sense.” We agree wholeheartedly with the district *1230 judge. Nevertheless, unless the Supreme Court revises its view of the effect of the General Savings Statute as it applies to ameliorative sentencing laws, only Congress is able to achieve the Fair Sentencing Act’s promise “[t]o restore fairness to [fjederal cocaine sentencing,” by amending the Act so as to make it retroactive for all defendants whose sentences had not become final as of the date of its enactment.
AFFIRMED.
Notes
. All we have are the statements of individual senators and representatives that the sentencing disparity in the prior law had no scientific or penological justification and resulted in racially unjust consequences. See, e.g., 155 Cong. Rec. S10488-01, S10491,
. It would be especially egregious to require judges “to continue to require that courts impose unfair and unreasonable sentences on those offenders” who have not yet been sentenced.
Acoff,