United States v. Holcomb

America, majority own A initiative. of the active STATES of UNITED Plaintiff-Appellant, rehearing did not vote in favor of banc, en proposal and the therefore fails.

v. rehearing rehearing Petitions for or en Christopher HOLCOMB, al., et accepted; banc will not be this decision is Defendants-Appellees. judgment. the court’s final Three mem- 11-1558, 11-1586, 11-1559, Nos. 11-1758. bers of the court opinions have written Appeals, United States Court explaining their votes.

Seventh Circuit. EASTERBROOK, Judge, Chief

Aug. FLAUM, KANNE, SYKES, whom and TINDER, Judges, join. Circuit appeals

These four were filed United States with the Solicitor General’s Eight days authorization. after the Unit- Hartzler, Joseph Attorney, Office of H. prevailed, ed States prosecutor filed a Attorney, Springfield, States styled Changed document “Notice of Posi- IL, Plaintiff-Appellant for in No. 11-1558. announcing tion” Attorney Gener- Bass, Hartzler, Timothy Joseph A. H. (and al disagrees with apparent- this court Attorneys, Office United States At- too). ly with the Solicitor General IL, torney, Springfield, Plaintiff-Ap- Changed “Notice of Position” does not ask in pellant Nos. 11-1559 and 11-1758. anything particular, us to do in but some Bohm, Hartzler, M. Joseph Jason H. members of the court believe that we Attorneys, Office of the United At- grant rehearing States should en banc and over- IL, torney, Springfield, Fisher, for Plaintiff-Ap- rule United States v. 635 F.3d 336 (7th pellant in No. 11-1586. Cir.2011), panel which led our to de- appeals cide these four prosecutor’s Hansmeier, Daniel T. Thomas G. Wil- favor. I am content to leave Fisher undis- mouth, Attorneys, Office of the Federal turbed. Defender, IL, Springfield, Public for De-

fendants-Appellees Nos. 11-1558 Attorney General’s “Memorandum 11-1559. Prosecutors”, for all Federal July dated 15, 2011, Attorneys directs United States

Jerry Boykin, Attorney, Law Office of Atlanta, argue Fair GA, Act of Jerry Boykin, for Defendant 111-220, Pub.L. Appellee No. 11-1586. Stat. 2372 (2010), applies prosecutions to all criminal Cox, Feldman, Attorney, J. Randall in which imposed sentence was on or after Wasser, Benson, Draper IL, & Springfield, 3, 2010, August day the President Defendant-Appellee No. 11-1758. signed the bill. The Memorandum also EASTERBROOK, Judge, Before Chief Attorneys directs United argue States POSNER, FLAUM, KANNE, the 2010 Act does not to cases ROVNER, WOOD, WILLIAMS, SYKES, pronounced which sentence was on Au- TINDER, HAMILTON, Circuit earlier, gust even if were Judges. pending in the district court or appeal on words, A member of this court called for a vote 3. In other the Attorney question on the whether these four General appeals has concluded that the 2010 Act is should be partially heard en banc on the court’s retroactive.

446 aware, expressly provide, so and such Supreme Act shall as I am

As far any change held shall be treated as still remain- has never statute Court partially retroactive. penalty purpose sustaining criminal for the of ing force always binary: has been retro- The choice prosecution or for the any proper action And what makes prospective. active or forfeiture, penalty, enforcement of such in the “retroactive” is a application liability. or activity pre- consequences of legal § argued that 109 is irrelevant Defendants gen- new law’s enactment. See dates the it rather to the 2010 because reduces Products, erally Landgraf v. USI Film for crack co “repeals” penalties than 244, 1483, 114 128 L.Ed.2d 511 U.S. They contended that a crimi caine. also (1994), discusses what it means 229 punishment until nal does not “incur” of a new statute to be ret- application concluded, Every sentenced. circuit has roactive, exceptions two to the and the contrary, reducing that a law criminal against retroactivity: new presumption repeal of statute punishment is the old jurisdictional re- procedural rules and new enactment of a new one for the and the quirements. The 2010 Act does not affect 109, § purpose punishment of and that judicial procedure; changes penalty it incurred when the crime is committed. af- for criminal conduct. And it does not supports both of these conclu Marrero jurisdiction. fect precedent Our is United States v. sions. distinguished The common law increases (7th Bell, 803, Cir.2010), 624 F.3d 814-15 from reductions punishments criminal which holds that 109 makes the 2010 Act Any a crimi- repeals. repealed or law that express because lacks an prospective, the defendant’s pun- nal statute or reduced retroactivity. A declaration of footnote retroactive, fully light ishment was while in equivalent collects other circuits’ decis Ex Post Facto Clause Constitution’s ions.† creating increasing a law a crime or crimi- rejected argu- Bell and the other circuits punishment nal could to con- retroactivity made defen- ments changed. the law duct occurred after appeals pending dants whose on Au- were But in enacted the General 1871 gust why 2010. That’s courts could Statute, Saving now codified as U.S.C. A question quickly. decide the so second changes prospec- which makes all defendants, wave of sentenced on or those provides tive unless the new statute other- 3, August partial asked for Marrero, wise. Warden v. retroactivity. Our circuit was the first to 659-61, 41 L.Ed.2d 383 possibility. panel consider (1974), history. discusses this Section 109 rejected argument Fisher that the date provides: sentencing matters. If the 2010 Act is repeal any statute not have shall retroactive, applies pending then it to all extinguish the effect to release or forfeiture, got cases no matter how far have liability penalty, incurred statute, retroactive, judicial system; if it repealing under such unless the is not Goncalves, Carradine, (1st Cir.2011); † v. United States v. 642 F.3d 245 United States Cir.2011); (6th Cir.2010); Acoff, United v. 634 F.3d F.3d 575 United States v. States (2d Brewer, (8th Cir.2010); Cir.2011); Reevey, v. 624 F.3d 900 United States (9th (3d Cir.2010); Baptist, v. v. 646 F.3d 1225 Cir. 631 F.3d 110 United States States Lewis, Rhodes, 2011); Fed.Appx. WL United States v. 625 F.3d 1224 Gomes, (4th (one (10th Cir.2010); Cir.2011) least five United States v. of at circuit, (11th Cir.2010). opinions non-precedential); Circuit in that F.3d 1343 The D.C. (5th Doggins, yet subject. v. 633 F.3d 379 has to address this United States position. ation to the rationale for the new only to crimes committed on applies then it depends example A Nothing recent is United States v. Cor- or after ner, (7th Cir.2010) (en date, banc), which reflects how 598 F.3d on criminal, a and the long it took to catch which overruled several of the circuit’s de- calendar, judge’s rath- state of the district cisions after the Solicitor General filed a of deterrence or desert. principles carefully er than explaining brief where the circuit says 109 that the former law “shall Section gone wrong. explanation had That carried remaining as in force” for be treated still day; Comer was unanimous. Unfor- If the old law is pre-amendment conduct. tunately, Attorney General’s “Memo- force”, remaining in “treated as still for all Federal randum Prosecutors” lacks applied persons newly can’t be new law analysis helpful the sort of that was so crimes; pre-amendment sentenced for The Memorandum Comer. does not dis- partial retroactivity. § 109 forecloses § language cuss 109 or the of the 2010 Act. explain why partial It does not retroactivi- Douglas, 644 39 United States v. F.3d ty why is appropriate transition (1st Cir.2011), contrary conclu- reached —or depend should on the date of sion, that it was creat- apparently unaware event, rather than some other as such Fisher, with which had been ing a conflict guilty appeal. or plea Attorney Gen- Douglas held that days issued 20 earlier. quote caption eral does from the of S. maximum sentences and proposal which describes the as “A for defendants sentenced on take effect bill to restore fairness to Federal criminal (I’ll 1, 2010. come after November and sentencing”, language precedes but this date.) that back to the source of United enacting (11th part clause is Rojas, F.3d 1234 Cir. States v. unhelpful States Code. It also is 2011), Douglas holding then misread as evaluating proposal appli- for retroactive take effect with sen- that the new rules Every lowering cation. law sentences ex- August tencing on and after presses legislative that conclusion sen- (Rojas that transition date. was applied tences had been excessive. The common and would not have August sentenced on responded by applying penalty law reduc- eligible for a lower sentence under been § retroactively. provides tions But Douglas.) July panel On 7 our Hol- otherwise. The observation that Con- with instruc- comb remanded four cases President, gress, many federal tions to Bell and Fisher. And on excessively judges think the former rules July Attorney General issued his 15 the distinguish severe does not the 2010 Act agreeing Rojas. That memorandum any reducing from other law sentences and Attorney’s led to the United States “No- justify disregarding does not the anti-ret- ap- four Changed tice of Position” § roaetivity norm created 109. July this circuit had decided on peals Dixon, Then United States v. 648 F.3d what reason there Douglas asked could (3d Cir.2011), Rojas followed without ex- imposing be to continue sentences that the rather than plaining why it chose Act as excessive. The condemns Most November as the transition date. every question same could be asked about Sidney, recently, United States v. 648 F.3d other law that reduces criminal sentences. (8th Cir.2011), agreed with Fisher and sup- § The answer must be 109 itself permit par- § 109 does not concluded that It tells us that plies the reason. retroactivity. tial punishment lenience does not reduce the before the new law took completed for acts the Executive Branch confesses When error, Perhaps the common law reflects gives respectful circuit consider- effect. Attorney Neither the General nor than but Con- wisdom does greater of this court believes that the common law. member gress displaced has say that fully 2010 Act is retroactive. To an says § 109 “ex- Although fully Act retroactive the 2010 is sup- can in a later statute press” provision say supersede did not retroactivity, Congress is entitled port expressly implication. Sec- just that rule as it is entitled change partial retroactivity by forecloses tion 109 distributing punishment providing that the former law “shall be legislature of 1871 crack cocaine. The remaining pre- as treated still force” legislature sitting tie the hands of can’t § amendment conduct. If 109 has not why sug- may This the Court in 2010. justification superseded, been what is the “fair implication” in Marrero that a gested partial retroactivity? Attorney for The appli- new law could allow retroactive in a General, first, third, like the and eleventh 10, n. 94 at 659 S.Ct. cation. U.S. circuits, subject. is silent on that decision, earlier Great Northern 2532. An 208 U.S. Ry. v. United my colleagues sup- of believe that Some (1908), 313, said that 52 L.Ed. 567 S.Ct. port partial retroactivity can be found “by necessary implication” law when new §in provides: 8 of the 2010 which crimes, pre-enactment applies States Commis- follow the newer law rather courts must sion shall— (or fair) necessary implica- than 109. A (1) promulgate guidelines, policy express provision tion falls short of an but statements, provided or amendments show that has amended could for in Act practicable, this as soon as Still, super- to that unless extent. not than and event later seded, § 109 is as authoritative as other days after the date of of enactment Act, 1 Dictionary rules in the U.S.C. found Act, in proce- accordance with the 1-8, §§ §§ and in 18 U.S.C. 5-27. Defini- 21(a) dure set forth section of the tions, presumptions, presets are essen- (28 Sentencing Act of 1987 U.S.C. 994 understanding legal They tial to texts. note), though authority as under revision, subject to but court should not expired; that Act had not lightly infer has tossed out (2) pursuant emergency to the au- all the framework laws that facilitate inter- (1), thority provided paragraph under pretation legislation thus facilitate —and conforming make such amendments too, by giving legislature formulary sentencing guidelines the Federal as See, e.g., use. Rowland v. California necessary the Commission determines 194, 716, Colony, 506 Men’s consistency to achieve with other (1993) (holding 121 L.Ed.2d 656 that the guideline provisions applicable Dictionary context clause in the Act allows law. departure presumptive from the defini- requirement A Guidelines only plausible tions if there is no other days within the new law’s enactment linguistic understanding of the new stat- ute). imply anything does not about minimum Kentucky See also Association of 3, Plans, Miller, 329, August and maximum sentences on Health Inc. v. (2003) 1471, 2010. The new Guidelines came into effect 1, on November 2010. This is the source (enforcing the rule in the McCarran-Fer- guson Douglas Act that of the date that chose. The first expressly federal laws if applying supersede reg- thought incongruous to insurance circuit it would be state schemes). Guidelines, ulatory mini- the new but not the new penalties sentences, and maximum applied maximum mum and effect; on or after Novem- take the other is when revised sentenced defendants support This does take effect. The Commission 2010. Guidelines ber used, 3 has, statutory authority view Attorney General’s and has Putting the statuto- transition. marks the apply the lower Guidelines even closed effect while the Commis- changes into ry 2011. starting cases November just would be as deliberating still sion was authority any equivalent lacks Commission the Guidelines but putting as incongruous minimum and statutory to make different pen- minimum and maximum new not the applicable maximum sentences to eases my col- into effect. Yet none alties Au- predated the criminal conduct change for concludes that the rules leagues gust or for sentences on November four are about the retro- appeals These 2011—when matter November activity changes to the given retroactive effect. will be Guidelines sentences, minimum and maximum Release Commission See the amended And this about Guidelines. 1, 2011, making Amendment July §why 8 of the 2010 Act does not affect the 2010 retroac- implemented which appeals. Changes these to the Guidelines (The 1, November 2011. Com- tive as of minimum nothing have do with and authority apply new Guide- mission’s maximum sentences. That was settled comes from 18 U.S.C. to closed cases lines States, 284, Neal v. United 516 U.S. 116 States, 3582(c)(2). § Dillon v. United See 763, (1996), 709 which S.Ct. 133 L.Ed.2d — U.S.-, 2683, 177 L.Ed.2d 130 S.Ct. Kimbrough the Court reaffirmed and (2010).) 271 — States, -, DePierre v. United why might A be inclined to ask reader (2011). 2225, 131 S.Ct. 180 L.Ed.2d minimum changes Act’s and the 2010 dramatically low- When the Commission not take effect maximum sentences should LSD, ranges ered the for defen- Guideline 2010, 1, the same date as the on November argued preposterous that it would be dants revised Guidelines revised Guidelines'—for (which apply the new Guidelines do not even if the conduct to new sentences medium) weight count the of the carrier place years earlier. See 18 U.S.C. took leaving unchanged the while 3553(a)(4)(A)(ii); De § United States v. minimum, Chapman v. United (7th Cir.2006). maree, There 459 F.3d 791 States, 1919, 500 U.S. however, inconsistency because the is no (1991), L.Ed.2d 524 holds does count doing the 2010 Act are Guidelines held, however, that weight. carrier’s Neal things. provides The statute that different are uncon- the statute and the Guideline base, 21 penalties for cocaine and cocaine arguments nected and that about incon- 841(b), § maxi sets U.S.C. justify modifying do not the statuto- gruity the Guidelines then punishments; mum minimum and maximum sentences. ry range where within that influence ratio in the Guidelines has not been sentence. The 2010 Act judge imposes year, 100:1 since 2007. That Sentenc- 841(b). § free to Judges are amended dropped most cocaine- ing Commission Commission, see disagree with the United sentences two levels. See Amend- base Booker, 220, 125 S.Ct. States v. 543 U.S. (and 706, effective November ment (2005); 738, 160 Kimbrough v. 713 as of made retroactive Amendment 2008). the 2007 March The result of (2007), but are not 169 L.Ed.2d 481 that, depending on change was a ratio Congress. Thus we disagree free to high or as quantity, could be as low as 25:1 retroactivity is when have two dates. One many changes offenders the further Those are unrelated to the as 80:1. For ratio. crack/powder in 2010 not matter. No one change does more of kilograms distributes 8.4 who Act Section 10 of the 2010 tells the Guideline cocaine base received lower study Commission to the ef- Many quantities have the range. common legislation and report fects before and after same base offense level that, Dixon observed years. within five change 2D1.1. For U.S.S.G. legislation applies unless the new retroac- distributing for 1 kilo example, the level tively, study will be limited to the law’s stayed in 2007 but dropped from 36 to 34 persons effect on who distribute cocaine at in 2010. defendants receive a Some 2010. will base So? There benefit from both revisions: the level for plenty people category. be in that grams of crack fell from 30 to 28 in study point of such is to ascertain how My point 2007 and to 26 2010. is not penalties lower affect the volume of crime. every- changes slight that the 2010 People who distributed cocaine before the large can be for persons one—the benefit expected subject 2010 Act to be old (the quantities who small distribute level structure; penalty their behavior cannot 16) grams drops for 5 from 24 to —but changed by drop a later in sentences. the Guidelines the 100:1 ratio abandoned study A pro- of the 2010 Act’s effects will Neither in 2007 nor meaningful duce results if limited to link 2010 did the time of persons whose criminal conduct occurs in the Guidelines’ ratio to the time of while the 2010 Act is in force. I do not change in the minimum maximum pen- think that supplies footing much alties. other, but, an way inference one or the if relevant, § 10 is Dixon got things back-

Section which tells the Commission to ward. get Guidelines, a revising move on in its imply anything

does not about when the Thoughtful people might wonder what new minimum and maximum go sentences it Congress, having sense makes for decid into force. for quantities Because some excessive, ed that a 100-to-l ratio is the difference between the 2007 and 2010 leave the minimum and maximum sen nonexistent, quantity tables is small or one persons tences alone for pre whose crimes rapid effect of the revision is to increase August date good question, 2010. It is a penalties swiftly for the most serious of- satisfactory to which there is no answer (and fenders to increase the difference be- legislation other than the observation that penalties tween the for the worst in compromise. legis offenders is an exercise Some ones) and the least serious supported existing sections 5 lators the 100-to-l ra —as and 6 of higher the 2010 Act call for powder tio between base and co cocaine caine, aggravating Guidelines when certain fac- thought while others that the two tors present, while 7 directs drug versions of this should be treated the same, pun- Commission to reduce as the Commission once ishment for offenders with minimal roles. recommended.* Some members of Con * by legislation Sentencing Policy (May 100-to-l ratio was created Cocaine and Federal 2002) Congress (recommending in 1986. In 1990 directed the Sen- ratio of "at least” tencing 20:1); study subject. Sentencing Policy Commission to Cocaine Federal 2007) less). reports, (May Commission has issued four (recommending each 20:1 or making proposal. Congress nothing a different response See Cocaine Until 2010 did (Feb. 1995) Sentencing Policy except and Federal reports, to these it in 1995 blocked 1:1); (proposing proposed changes Cocaine and Federal Sentenc- have made would 5:1); 2007, however, ing Policy (Apr.1997) (recommending Guidelines' ratio 1:1. In Con- penalties ap- maximum must by minimum and disparity to reduce gress wanted cocaine; whose persons at least some crimes powder ply for raising penalties by reducing it to address 2010.” That wanted occurred before others of Con crack. Members compromise for nature penalties disregards theme at a ratio of 18 compromised gress legislation. coming through reduc

with most bill, majority Congress enacts a When maximum terms in minimum and tions text, grand principles. not on agrees on its imprisonment. everything it wanted got side Neither basis for the 18-to- no scientific There’s statute, legis- disserve the this reducing ratio, by there getting for by one side more than process giving lative increasing rather than crack sentences Indeed, bargaining table. it secured at the sentences, it was the best but powder “just side with tendency provide one (or, could achieve parity the advocates of can right little more in the direction” legisla- the most that other equivalently, legislation accomplish harder to make concede). I mean don’t tors would up, to take and re- requiring irrational, only that ratio is that the 18:1 solve, ways judiciary in which the all of the that a arbitrary, in the same sense is legisla- might tempted to tinker. “[N]o arbitrary. (Why of limitations is statute purposes at all costs. De- pursues tion days employment-discrimina- 90 or will or will ciding competing what values suits, claims under the years tion be sacrificed to the achievement of Act, 4 for the years Federal Tort Claims objective very essence of particular and 5 statute 28 U.S.C. residual legislative choice—and it frustrates rather felonies?) Many for most federal years simplisti- intent legislative than effectuates parity who wanted Members cally to that whatever furthers the assume retroactivity, and Members also favored objective primary must be the statute’s higher ratio also favored supported who States, 480 Rodriguez law.” v. United way proponents of retroactivity. One no 522, 525-26, 107 S.Ct. achieve a lower ratio was this law could (1987) (emphasis original). ratio, and retroactivity. The give up on know, in Congress all we can a belief For di- retroactivity, among the several the law judiciary that the would make compromise. mensions of this would have stiffened partially retroactive deals are struck off legislative Most bill, and the 100:1 opposition knowledge I do not claim inside floor. today. in force ratio would still be Perhaps guessing I err in about this one. legis- Choosing an effective date for new came to have an 18:1 about how this law arbitrary deciding as how lation can be as Sentencing to allow the Commis- ratio and re- many grams hydrochloride of cocaine implement retroactive Guidelines. sion gram as one ceive the same treatment why I subject only say do I broach this Attorney General relies cocaine base. The argument along an persuasive not find in the title of heavily on the word “fair” were in “The revised Guidelines lines of: fair 1, 2010, Fair but what’s so the new the by November place years change the much-criticized 100:1 change the gress Commission to allowed the 841(b) by reducing co- Guidelines most that three sections ratio in the ratio in —and levels, while ranges by two offense caine-base higher penalties for some the 2010 Act call for and maximum sen- difficulty drug distributors —demonstrates a 100:1 ratio. continued to reflect tences majori- creating package can attract history. Kimbrough this summarizes ty support. 94-100, it took 128 S.Ct. 558. That U.S. at on have condemning about someone sentenced therefore voted to hear these in than August prison to more time appeals en banc.

person day, the next even sentenced WILLIAMS, Judge, Circuit with whom though they committed their crimes on the POSNER, ROVNER, WOOD, (and may co-conspir- same date have been HAMILTON, ators)? Judges, join, Circuit in crime dis- Suppose comrades caught dissenting rehearing tribute cocaine in mid-2009 and are from the denial of en confesses, promptly. pleads guilty, One banc. other, at and testifies the trial of the who Congress originally The sentences had fights falsely tooth and nail and denies mandated for crack cocaine prem- offenses culpability. The first is Au- sentenced on drug quantities ised on that were one hun- gust September the second on 1. dred times than powder lower those for (or How it be “fair” would even consciona- cocaine offenses are indefensible. There is ble) give the lower to the sentence this, no debate that. Recognizing about person accept responsibili- who refused to wiped them out the Pair Sen- crimes, ty just by dragging for his because tencing to, words, Act of 2010 in its own process person out the was sentenced “restore fairness Federal cocaine sen- August 2? tencing” by eliminating the 100:1mandato- that, It would be weird to conclude ry mínimums. The question indictment, longer it takes an to issue or case, sound, odd it might as is whether the better the evading capture, offender at everyone wanted sentenced after date, and hence the later the Fair Sentencing Act became law to the lower the Why sentence. should the sentence, just receive a “fair” or some. changes the minimum maximum Our circuit should have heard this case terms take effect before changes en banc. Three other circuits have ruled (November 2010)? Rojas, Guidelines longer impose no must unfair

Dixon, Attorney and the General do not sentences after the Fair Act. try explain even why they chose This issue pending many affects cases and than rather November 1 as the transition cases to in light five-year come Why change date. the rules as of the date statute of drug prosecutions. limitations on of sentencing rather than the date of ar- equal grant There were votes to deny trial, raignment, plea, ap- or the date the rehearing en banc. So our circuit’s law decided, peal is Any some other event? stands, wrong. and it is of those produce transition dates would incongruities. Only retroactivity, full I. retroactivity, no equal treats criminal con- equally. duct Anthony Clardy was sentenced after the Fair Sentencing Act became law. The If apply the President wants to the low- quantity of crack cocaine involved was too er minimum and maximum penalties to all small to trigger mandatory a cases, closed, pending and he has to (“FSA”), under Fair Sentencing the Act general issue a pardon commutation. The and the judge imposed a sentence of 33 power permits the President to achieve imprisonment. months’ The United States retroactive lenience if he is to willing pay government, contrast, exercising the the discretion to political price. By judi- the has, ciary appeal argued sentences that it implement must faith- us compromises fully, Clardy even when most that the should be wish sentenced the political decision I higher pre-FSA mandatory had been different. minimum be- mandatory of the Act’s new application happened deal before drug cause Clardy, sentencing provisions that would minimum all sen- For passage. FSA’s prison. August in tencings of 120 months that occur on or mean a sentence after is so out lengthy, is so con- regardless That sentence when the offense added). sentenc- experienced (emphasis of line with what The place.” duct took sentence thought proper ing judge Attorney prosecutors directs General be, on the premised because it is should accordingly act and concludes: powder ratio that has 100-to-l crack to because it is taking position I am acknowledged to be baseless. been by the law and our mandate to required goal him, then, justice every do in case. Antho- applies If the FSA rectify Act was to Fair Clardy a 33-month sentence. ny will serve not, will soar to 120 I believe that Con- policy. his sentence discredited If it does sounds Perhaps policy this difference of restor- gress months. intended its dramatic, to think that overly or leads one in ing fairness cocaine initially have sentencing judge must immediately sentencings implemented That would be light sentence. imposed signed after the bill was place that take The United States wrong. into law. of 30 to 37 a sentence Guidelines advised government is not The United States judge here. imprisonment

months’ us, ruled after alone. The First Circuit in the middle. Clardy right sentenced Attorney even before the General’s memo- randum, that the was not limited to FSA II. defendants whose conduct occurred after government’s ap- consolidated We Douglas, v. passage. its United States appeals with its Clardy’s sentence peal (1st Cir.2011). So did the Elev- F.3d cases, involving defen- other three Rojas, v. enth Circuit. United States committed crimes before the dants who Cir.2011). (11th The Third F.3d 1234 Cir- law on but FSA became recently followed. United States cuit has and under sentenced after that who were (3d Cir.2011). Dixon, Only v. 648 F.3d 195 of crack Each had an amount its terms. apply has declined to Eighth Circuit mandatory mini- triggered cocaine af- to crack offenders sentenced the FSA that was less than mum under the old law Sidney, v. passage. ter its United States triggering amount under an increased (8th Cir.2011). 648 F.3d 904 ruling In of our United light FSA. Attorney memo- Attaching the General’s (7th Fisher, 635 F.3d 336 Cir. States v. randum, filed a Notice of government denied, 2011), en banc 646 F.3d reh’g us of its new Changed informing Position (7th Cir.2011), agreed of our court panel defendants. position regarding these four the sen- government, with the vacated thing the same other cases It has done judge, imposed by the district tences Despite government’s position as well. mandatory mínimums pre-FSA said the sentencings applies that the FSA 11- person. each See Nos. must these, including the law of our passage Holcomb, al., et States v. et the same. circuit remains 2011). (7th 7, al., July Order Cir. vacancy on our is an unfilled There has government States

Now the United court, equal have an number of so we Completely. On changed position. active on judges. active Half of the 15, 2011, Attorney July States court, on including the two who were stating he a memorandum General issued Fisher, to re- panel in voted requires original “concluded that the law has (statement Durbin, hear these consolidated cases In- author, en banc. of Sen. FSA’s deed, changes in landscape Senate) that day passed on it (“Every day place ruling sig- have taken after our are passes taking without action to solve Certainly nificant. our obligation is to the problem day people is another evaluate the merits of the statute our- being virtually sentenced under a law that selves, government’s but the “confessions everyone agrees unjust.... is If this bill are, course, of error given great law, immediately is enacted into it will York, 40, weight.” Sibron v. New 392 U.S. every year, ensure that peo- thousands of 58, 1889, (1968); ple fairly are treated more in our criminal Young accord v. United added). justice system.”) (emphasis And 257, 258-59, 510, 86 L.Ed. 832 Congress passed so Sentencing the Fair (1942). 2010, Act of which became law when the make, But half majority does not a signed President it on 2010 sur- it enough so is not to obtain a rehearing en by bipartisan rounded Congressional lead- banc in our I court. believe our circuit Attorney ers and the General. should reexamine its position, especially in Upon that signature, I believe Fair light of the events since our initial deci- Sentencing Act’s mandatory lower mini- sion, and that it should do so because our mums for crack applied cocaine offenders position wrong. For the I reasons ex- to all defendants sentenced after it. The in plained my dissent from the denial of argument real against such a reading Fisher, rehearing en banc 646 F.3d general statute, stems from the saving along here, with those I explain I dissent U.S.C. passed from rehearing the denial of en banc. an Supreme Court decision. When III. committed, the offense the case was it heightened carried a mandatory fine or a prison $500 mínimums $1000 for crack cocaine offenses were based on term years. of three to five After the false assumptions. The Sentencing Com- trial, defendant’s indictment but before mission knows this. See United States Congress penalty provision amended the Commission, Report to Con- to a fine and one to five $300 $1000 gress, Cocaine and Federal years prison. Supreme Court rea- 2002) (“The Policy (May drug 100-to-l soned that penalty provisions because the quantity was established based on a num- of conflicted, the two statutes ber of beliefs about the relative harmful- operated repeal statute as a of the earlier ness of the drugs two and the relative It one. held as a result that “all criminal prevalence of certain harmful conduct as- proceedings taken under [the old statute] sociated with their use and distribution because, said, fell” can “[t]here be no that more recent research and data no legal conviction, nor judgment valid longer support.”). The United States At- pronounced upon conviction, unless the law torney General knows this. See Statement creating the offence be at the time in Attorney General on the Passage of existence.” Tynen, United States v. the Fair Sentencing July 11 Wall. 20 L.Ed. 153 available at http://www.justice.gov/opa/pr/ (1871). It then directed the indict- (“The 2010/July/10-ag-867.html great- bill ment be dismissed. Id. ly reduces the disparity unwarranted Congress passed general saving sentences for powder crack and cocaine offenses”). See, response, statute repealing knows this. the common- (Mar. 2010) e.g., 156 Cong. Reg. 1680 law presumption. Passing the statute

455 years saving ago: hundred statute See Hamm v. in that context. made sense 314, Hill, 306, penalties lower U.S. 85 does not bar a later law’s City 379 Rock of (1964) (“It 384, 300 was if immediately taking Congress L.Ed.2d effect S.Ct. from technical abatement mere Supreme meant to obviate them The Court wants to. ex- by the rule in that illustrated such as saving plained that because statute saving part, Tynen.”). In relevant statute, of a “only provi- has the force its provides: statute disregard of justify sions cannot the will not of statute shall repeal The either Congress expressly as manifested extinguish release or have effect to implication in by necessary or a subse- forfeiture, liability or in- any penalty, Ry. Northern quent enaction.” Great Co. statute, such unless curred under 452, v. United 208 U.S. expressly so provide, Act shall repealing (1908) (emphasis L.Ed. 567 S.Ct. still statute shall treated as such added); id. at see also S.Ct. for the remaining purpose in force (analyzing “expressly whether statute or prosecu- action or sustaining any proper with by implication” general fair conflicted penalty, of such tion the enforcement for statute). rule in Marrero saving explicitly forfeiture, § liability. U.S.C. or It principle. reaffirmed that stated that then, statute, pre- ensures that saving if “only statute at issue can be [the there] continue, unless Con- existing penalties implication expressly said to fair otherwise. gress later directs conflict 109 would there be reason position, gov change Before at supersed- issue] to hold that statute [the Supreme us to a point to ernment used n. ed 109.” 417 U.S. at 659 94 S.Ct. case, Warden, Lewis- saving Court clause added). Supreme (emphasis Marrero, 417 burg Penitentiary v. not find in Court Marrero did (1974). 2532, 41 L.Ed.2d 383 Congress law a fair implication want- There, against prisoner ruled the Court parole eligi- Marrero to be ed someone like sought who to benefit long-ago sentenced ble; indeed, there had saving the statute making persons con from statute a new point The relevant clause of its own. from parole eligible, which victed of his offense that it Marrero our case is reaffirmed time was true at the he had been And remains the Great Northern. lan That case contains the sentenced. 43; at Douglas, law. See 644 F.3d see also has guage, saving clause been held “the Bonds, Marcello v. of ameliorative criminal applications bar (1955). 99 L.Ed. repealing harsher ones in sentencing laws to say did not need in the So force at the time of criminal offense.” Act, “this Act (citing applies from Fair Id. at 94 S.Ct. 2532 cases Circuits). D.C., Second, any person and Fourth That hereafter crack sentenced goes offenses, as far as statement is true if giving cocaine even the conduct —a three court of what circuit description place took before this rise conviction proposition had done. cases it cited for for it to all sen- passage,” Act’s accurately And it describes what the sav That would tencings thereafter. be one applica can bar the ing can do—it clause Supreme Court does way to do it. But the law tion more lenient of a later way, require it. The other which has happened pas before its when the offense effect, is for the exact same sage. implication” its manifest “fair will mandatory mini- extinguish higher nothing what But did Marrero for all mums for crack cocaine offenses made one clear over Supreme Court five-year pas- drug after the Act’s statute of limitations for defendants sentenced offenses, sage. § and the U.S.C. time to and investigate prosecute takes such implication That is the of the Fair Sen- cases.) promulgated The Commission new tencing Act. guidelines with consistent the FSA on No- IV. vember these appli- and “became cable to all defendants sentenced Only implication one reasonable can be date, regardless when committed Act, from section of the drawn Watts, their crimes.” United States v. provides: (D.Mass. 2011 WL Apr.5, at *8 SEC. 8. EMERGENCY AUTHORI- 2011). TY FOR UNITED STATES SEN- TENCING COMMISSION. It makes no for Congress sense to will United States Commis- guidelines on an based 18:1 ratio take sion shall— effect immediately sentencings even for

(1) promulgate guidelines, policy crimes the Act if committed before those statements, provided or amendments subject same be pre defendants would practicable, this Act soon as as mandatory FSA 100:1 Why minimums. and in not later than event Congress would want that? That kind of days after the date enactment of sentencing scheme makes no sense. We with proce- accordance required are interpret way statutes in a 21(a) dure set forth in section of the that does not lead to nonsensical results. (28 Sentencing Act of 1987 U.S.C. Rutherford, United States v. note), though authority as under (1979). 61 L.Ed.2d 68 expired; that Act had not Congress’s will must have been either that (2) pursuant emergency to the au- the 18:1 persons ratio sen thority (1), provided under paragraph Act, or tenced after the that the 18:1 ratio conforming make such amendments to apply only persons whose conduct took sentencing guidelines Federal as place after the Act. the Commission necessary determines Congress The language chose to use consistency to achieve with other supports only It the former. demanded of guideline provisions applicable Commission, the “Use the 18:1 law. ratio. ASAP.” That meant that for sen- Pursuant U.S.C. tencing judges using guidelines, the new 3553(a)(4)(A)(ii), sentencing judges are “Use the 18:1 ratio. ASAP.” The fair im- employ guidelines that are in effect plication of these demands is that Con- sentencing. on the date of See also gress meant “Use the 18:1 ratio. ASAP” lBl.ll(a). U.S.S.G. With that knowl- in all aspects sentencing. really It’s edge, and invoking “emergency” authority, only implication that makes sense. guide- demanded that lower also demanded section 8 lines take sentencings effect in “as soon as guidelines amend its Commission practicable” ninety days within at the consistency” “to “applicable achieve absolute latest. That means Congress law,” meaning mini- guidelines wanted on an pow- based 18:1 mums. The of “consistency” directive fur- right ratio to take effect away, der/crack ther shows will that Congress’s the FSA sentencings even where the offender’s (There cases, pre-dated applied conduct Act. be to pending since the to many light guidelines bound be such cases in applied would to pending ques- to this good answer There is no 100:1 pre-FSA a Using cases. a to decide tion. guideline an 18:1 coupled consistency.” “achieve not does

sentence only implication fair, necessary, and Abbott v. opposite. the achieves It Cf. expected Congress that is from the FSA — U.S.-, 131 S.Ct. mínimums to mandatory its and intended (2010) inter- (rejecting immediately. apply result that “would pretation in- surely did Congress anomalies V. tend”). could be that arguments other There are FSA, Congress 10 of the inAnd section none con- reading, but this against made to Commission the directed apply the FSA does me that vince and submit of the FSA the effects study It the law. sentencings after it became impact the regarding report to of at the date a line drawn that with is true sentencing law in federal changes the of per- effect, where be instances there will of the date years after than 5 later “[n]ot in their cases guilty early on pled who sons our circuit’s Act.” Under of enactment do not try capture to evade did not or who five-year statute rule, light and in mandatory mini- from the new benefit offenses, “during the drug on limitations who committed mums, others unlike Sentencing Com- the period time in- were day the same or even crime on report on produce to supposed is mission But a activity. criminal the same volved FSA, will often Act the the effects of We can- drawn somewhere. line must be Dixon, v. United States inapplicable.” at line con- To draw the not avoid that. 202. F.3d at point whole was duct, Congress’s when the statute’s surrounding The context sentences, unjust rid of 100:l-based get Exceptions too. important passage that mean right away, would and to do so implied to be are clear statutes even naught.” at will be set mind legislative “the obviously at vari- “consequences prevent Co., at Ry. Northern Great aas of the enactment policy with the ance to draw Congress gets 313. 552, 99 at Rutherford, whole.” passage. its line, it at drew Cf. driving the FSA policy (2d Acoff, 634 F.3d v. United States mandatory mini- elimination of was curiam) Cir.2011) (declining (per in fact or no basis that had mum sentences already had who to defendant the FSA assumptions, and false law, based on were had not exhausted yet but been sentenced Attorney General Congress and appeals). his Sentencing Commission it would colleagues contend my Some inherently un- believed were President all to the co- give less time fair not be goal for the FSA just. Congress stated a trial and who insisted on conspirator who fairness to “To restore in its Preamble: FSA, while was sentenced thus sentencing.” cocaine Federal who cooperator more time to giving mandatory passing believed that But this that date. before was sentenced that “fairness.” restore helped mínimums important take into account two fails to level, then, Attor- as the At a fundamental available to flexibility sources memorandum, in his asked ney General First, coopera- the district court. too, why would Con- ask and other courts date, the the effective before tor sentenced to continue sentencing judges want gress be- move for sentence government could already it had sentences impose (more like- statutory minimum or low unfair? to be declared ly) place emergency. file a motion to reduce the sentence into a matter of If get- Federal Rule of Procedure under Criminal ting only-advisory guidelines place into 35(b)(2). 35(b)(4) See also Fed.R.Crim.P. was a emergency, taking matter of 100:1 (“When 35(b), acting under Rule the court mandatory off mínimums the books must reduce the sentence to a level below may what, have been a code blue? minimum sentence established stat- the States, To point to v. 516 Neal United ute.”). person For the sentenced the U.S. 709 116 S.Ct. 133 L.Ed.2d date, effective district court FSA’s the still (1996), supporting contrary as a is reading option choosing the a has sentence Neal, to miss the point. In the Court held guidelines range, long above the as as it that the Sentencing Commission’s method very high below the stays normally statu- weight of calculating LSD didn’t control maximum, if thinks that tory the court weight purposes calculation higher appropriate per- sentence is for the mandatory statute setting minimum sen- short, went to In son who trial. there is 294-95, tences. 516 U.S. at 116 S.Ct. 763. authority in plenty sys- to fine-tune That’s obvious. But our case is about tem, and so the to which my unfairness did, what Congress Sentencing colleagues unlikely allude to come is about. Commission. was no change There to my position Nor does mean that statutory mandatory minimum or maxi- Congress time a sentence for an reduces mum in Neal. id. The only change See that the penalty offense lower takes effect there was made the Sentencing Com- immediately. sentencings The Fair 292-94, mission. See id. at 116 S.Ct. 763. ordinary Act is no statute. It Section 8 matters because it’s what Con- makes no sense for to Congress make it an said, gress Congress and what “emergency” get guideline to said shows 18:1 ratios in if it place right wanted 100:1 mínimums it found wanted the new sentences in effect inherently unjust stay. Making it away. to an “emergency” get to guidelines place 18:1 And emphasize to the 2007 amendments if the 100:1 mínimums still had effect to guidelines the sentencing also misses even guide- makes less sense because the the mark. Despite changes in offense lines were not biggest emergency. levels that resulted from those 2007 District have been able to sentence “[tjhe amendments, amended Guidelines crack cocaine more comparably offenders still produce[d] sentencing ranges keyed to powder cocaine offenders since the Su- mandatory minimums the 1986 Act.” preme gave Court them the discretion to Kimbrough, at 99 n. U.S. 128 S.Ct. Booker, do so. See United v. States 558. The difference was that under U.S. 125 S.Ct. 160 L.Ed.2d 621 the 2007 guidelines, amended “the 5- and (2005); Kimbrough v. 50-gram quantities produce[d] of ‘base 169 L.Ed.2d 481 corresponding fense levels guideline (2007). Congress Anyone knew that. fol- ranges that include[d] man lowing this issue knows that. The adviso- ” datory penalties,’ opposed as ry guidelines nature of the means that it ranges that slightly exceeded those statu guidelines

was not the big- that were the tory mandatory (citing mínimums. Id. gest impediment “restore fairness Sentencing Commission, United States Re sentencing.” Federal cocaine The 100:1 port Cocaine Congress: and Federal mandatory mínimums the biggest were 2007)) (May that, Policy (emphasis problem they just because were man- omitted). that, base datory. Even That the offense level for knowing getting made equitable guidelines kilogram more one who distributes of crack That no from Clardy the same after the FSA takes benefit cocaine remains why also another guideline amendments is FSA demonstrates reason not have our cir- individual’s base offense could wanted irrelevant: also, level, 34, interpretation. reading ex- That as range cuit’s corresponds dissent, F.3d ten-year explained my manda- I Fisher post-FSA ceeds even the 431-32, offenders, minimum, an the worst as and does not create at benefits tory benefit inconsistency. guideline That ones who stand to guidelines guide- to a from the new since their amendments linked were reduced, range potentially lines would be statutory penalties in the obvious—there just statutory above the minimum. But statutory changes no to the mandato- were so, my Clardy, drug quan- despite in 2007. And for someone like whose ry mínimums them, tity trigger any on the 2007 was too small to mandato- colleagues’ reliance ry at all the Fair produce illogical sentence under amendments did Sentencing mínimums he receives disparity between the knowledge rule in that the of the Sen- guideline ranges that our members in tencing just do us Commission think sen- perpetuates, and not assist Fisher FSA, nearly for him four shorter. determining Section 8 of the tence is times whether is a consistency, seeks achieve Finally, government initially had cit- Savings under the Stat- implication” “fair Products, Landgraf v. Film ed USI ute. U.S. S.Ct. (1994) us, it is now case the first discussed, And, already I a con- as have my colleagues Land- point. which some of Anthony trary Clar- result is nonsensical. course, of was a civil The graf, case. ease that. The dy’s illustrates petitioner held that a could Court there Congress’s at urgently acted Commission damages from more not benefit favorable guidelines promulgated direction and new in Rights the Civil Act that took provisions on crack cocaine offenses November case was on The appeal. effect while her that. sentenced after Clardy 2010. was contrast, FSA, clearly in not a statute judge to the new The district court looked impair rights party pos- that “would a recommended the Sentenc- guidelines acted, party’s when he increase a sessed Commission, agree do. ing as he should conduct, new liability past impose or guidelines were with These “consistent” already respect with to transactions duties mandatory in the the ratios reflected new Landgraf, at completed.” Cf had mínimums as directed Nor it raise S.Ct. 1483. does guidelines recom- And what did be. application, with constitutional concerns its with 13 Clardy’s mend for involvement attempt Rights to invoke the Civil as A of cocaine? sentence of grams crack at punitive damages provision, id. Act’s light imprisonment, to 37 months’ even higher penalty S.Ct. coupled prior drug his conviction that of says also Landgraf a criminal case would. grams more than 5 of crack cocaine that, intervening statute au- “[w]hen [an] mandatory mini- triggered 120-month propriety pro- thorizes or affects the necessary under law. mum the old relief, pro- application of the new spective implication and fair Fair 273, 114 vision is not retroactive.” Id. at did want the Act is mandatory minimum baseless 120-month Fair Clardy. necessary implication of the it to apply that existed before mandatory mini- Sentencing Act is that its fairly. him more It wanted sentenced apply sentencings mums in all my colleagues that some of found to be so passage. Declining to read the FSA to helpful in resolving Comer made the same Anthony Clardy to offenders like arguments already made the dissenters primary objec- would “undercut the bill’s rehearing the denial of en banc tive,” “result in anomalies Con- case Comer overturned. See United intend,” gress surely did not benefit the Welton, (7th States v. 583 F.3d 500-04 offenders,” give “worst “rise to ... oddi- Cir.2009).) ties,” “not necessarily promote more And I although think the text of the equitable my outcomes.” Those are not result, yields only statute is clear and one They words. are the words of the Su- unclear, to the extent it is we keep should preme just year, Court from last when lenity it, the rule of in mind too. Under rejected reading mandatory mini- “ambiguity concerning the ambit of crimi- mum statute that would do all those nal statutes should be resolved favor of — States, things. See Abbott v. United - lenity.” Skilling v. United U.S.-, 18, 27-28, 131 S.Ct. 178 L.Ed.2d -, (2010). (2010); 619 L.Ed.2d see also United States Granderson,

VI. 39, 54, v. 511 114 U.S. S.Ct. (1994) 1259, (“In 127 L.Ed.2d 611 these The conclusion that Sentencing the Fair text, structure, circumstances —where and applies Act in sentencings, all sentencings, history fail to establish that the Govern- passage just me, its is not reached ment’s position is unambiguously correct— or my colleagues join who me. It is the apply lenity we the rule of conclusion and Attorney reached the resolve the Gener favor.”). al of ambiguity the in [the United and it is the official defendant’s] position the government federal That will be rule applying favors the in FSA taking every in federal court across the sentencings after passage. Doug- See country. significant. That We also las, 644 F.3d at 44. That Attorney the rarely see complete such a change of General, First, the Third and Eleventh course from it. One of those times was Circuits, many and district judges court year, last respect to whether sentenc country around the have reached the con- ing judges could crack/powder consider the clusion opposite from only supports us disparity inherent in the career offender finding that at the least there is ambiguity guideline. government’s change of po statute, in the and that it is not clear the sition, along with the fact that no other FSA should not apply everyone sen- agreed circuit had with our holding that Indeed, tenced after it. the rule lenity not, could led us to reflect further is “rooted in the instinctive distaste helped us change our mind United against men languishing prison unless Corner, (7th v. States 598 F.3d 411 Cir. clearly lawmaker has said 2010) (en banc). too, Here I think the new R.L.C., should.” United v. States 503 U.S. developments worthy reflection, 291, 305, 1329, 117 L.Ed.2d 559 help why show our initial interpretation (1992) (plurality opinion) (quotations omit- (I’m was not right one. not sure what ted). more Attorney say, General needs to It is the against instinctive distaste men say would that is different than that women, mainly but said African-American by my here or dissenting colleague, to men like help Anthony Clardy, understand position languishing the FSA took effect in all sentencings prison for upon committing its en crimes of crack actment. The Solicitor cocaine, General’s brief powder rather than that led Con-

461 (1930) 179, 462, 254 172 N.E. 463 Act. N.Y. Fair pass gress (Cardozo, C.J.); see also new “fair” sen- Commissioner v. Congress wanted the That Brown, 563, 1162,14 571, 85 S.Ct. af- everyone sentenced tences (1965); law, 75 Green v. Bock Laun- Act became L.Ed.2d Fair ter Co., some, necessary dry 490 109 implica- Machine is the just (concur- (1989) 1981,104 it did. tion of what ring opinion); FutureSource LLC v. Reu- POSNER, Judge, dissenting Circuit (7th Ltd., ters 312 F.3d 284-85 Cir. rehearing en banc. denial of from 2002); Balint, States v. F.3d (7th Cir.2000); Kaiser In re Alu- Judge dissent unre- join I Williams’s (3d Corp., minum F.3d Cir. supplement this modest servedly, but .offer Commissioner, 2006); v. Flynn F.2d opinion. to her excellent Cir.1935). (5th 180, 183 “Even strict con- successor Con- Congress cannot bind reject interpretation structionists literal general saving gresses. The fact that when result would be senseless.” says repeal is not retroactive statute Hudspeth, v. United States F.3d repealing “expressly” statute unless (7th Cir.1994) (en banc). is, is some states that U.S.C. section of the Fair Sen- which, repealing that a statute indication Act, seeking to tencing correct the unwar- Sentencing Act the Fair like punishment disparity ranted for crimes 111-220,124 2372 (Aug. No. Stat. Pub.L. cocaine, involving powder crack and raised many 2010), in so words that say does trigger the drug quantities needed to is But are retroactive not. provisions its 5-, 10-, 20-year mandatory and minimum express of an statement is not the absence involving offenses crack sentences for im- Congress that did not bind the proof and 841(b). posed by 21 U.S.C. And sec- may Act That be year. the last enacted tion 8 it directed Commis- Supreme has said that why the Court sion to amend the relevant a new “necessary implication” of statute days guidelines within 90 to conform them not- suffice make retroactive would to the of the new statute. The provisions withstanding saving statute’s word did so. Ry. Commission Northern v. United “expressly,” Great States, 208 U.S. 28 S.Ct. The cannot amend stat- Commission (1908), why fur- the Court L.Ed. statutory ute mini- imposed old saving stat- ther reduced force mum See Neal v. United sentences. “necessary implica- later replacing ute 284, 294-95, 116 S.Ct. Warden, implication.” with “fair tion” (1996). (But that is all 133 L.Ed.2d Marrero, 417 Lewisburg Penitentiary v. holds, so far bears on Neal as this 2532, 41 659 n. case.) question whether the new is (1974). statute, statutory by changing the mini- mum ordering is in this sentences and the Commis- interpretive

That standard met guidelines sion prin- conclusion forthwith case—a reinforced mínimums, new interpret- comply “fairly to be with the that statutes are not ciple implies” govern that the new minimums all literally interpretation literal ed when new imposed sentences after the statute produce absurd results. “If literal- would took The defendants were sen- absurdity, sheer we are to seek effect. ness is March February 7 and whereby will tenced between meaning other reason some thus Fair Sen- year, after the absurdity avoided.” instilled Outlet Ltd., Mills, signed into law on tencing Act was Embroidery Co. v. Derwent year. their lenient drug quanti- quantity 3 of last Because because of the enhanced thresholds) ties would to such triggering were below the levels for —intended sentences, defendants. if mandatory new guidelines sentenced under the amended perverse results of a literal inter- they substantially could each re- receive pretation are in the following illustrated duced sentence. general, tables. The first second specific to the pres- four defendants Sentencing guidelines applicable are ent cases. sentencings they that occur after promulgated regardless of when the

crimes for being which the sentences are imposed were committed. 18 U.S.C. 3553(a)(4)(A)(ii). unless the re- So Act’s mandatory vised minimum sentences are defendants, applicable also these will receive sentences excess the sen-

tencing guidelines di-—in recting Commission to new,

make haste to conform them to the (more more lenient mínimums There is no interest in punish- reliance conciliated not the omission of an ex- ing these defendants under the old law. press authorizing statement retroactive (and And it suggest would be fanciful to but 4 through sections 6 of indication) there is no that members of Act, punishments increase the opposed who the Fair Sentenc- for some drug offenses. ing Act were so that chagrined a handful It arbitrary would not give be these of might get lighter defendants sentences defendants the benefit the new law and during period transition before the guidelines, new but defendants new law fully became effective that sentenced under the old law before the exerted prevent themselves to the inclu- new one passed; was to allow those sion express Act of an statement defendants to be resentenced would wreak that guidelines the new would override the havoc on finality in criminal statutory proceedings. old mínimums for defendants It is true that Sentencing sentenced after the Act’s Commission effective date. suggests Realism has opponents were decreed that on November 1 of this particular silly results gratuitously retro- will become guidelines new year the cases, example. cases—these sentenced active, meaning that defendants eligible will be guidelines the old under the new ones. resentencing under

seek defendants, pre- crimes if their But those Fair Sen- date of the effective dated the subject to to be will continue tencing As minimum sentences. the old HERNANDEZ, by Jaymz parents his eligible result, of defendants the number Crystelle friends HERNAN- and next be, in the Commis- will to be resentenced Hernandez, al., et DEZ and Joshua estimation, manageable (approxi- sion’s Plaintiffs-Appellants, Release, 12,000). News “U.S. See mately v. Unanimous- Votes Commission FOSTER, investigator, DCFS Lakesha Sentencing Act of Apply Fair ly to al., capacity, et individual her Federal to the Amendment Defendants-Appellees. (June 30, 2011), Retroactively” Guidelines www.ussc.gov/Legislative_and_Public_ No. 10-1364. ess_Releases/ ewsroom/Pr Affairs/N Appeals, United States Court (visited 20110630_Press_Release.pdf July Seventh Circuit. 2011). Feb. 2011. Argued punishing in favor of can be said

All that yet sen- law defendants under the old Aug. Decided effect is new one took when the tenced Rehearing En Banc Rehearing and omnicompetent if were 7, 2011.* Denied Oct. caution, would, an abundance of out of that sentences directed “expressly” have effect new law went into after the

imposed subject guideline to the amend- would An law ordained. ments nothing Congress, leaving omnicompetent chance, express made this would have though Supreme Court even statement and Marrero Northern has said Great “fair” or “neces- treat a that courts should as suffi- sary” in a new statute implication saving A few statute. cient to override Congress is omni- may think that to think that— pretend more competent; that literal they really being think what necessary to of statutes is interpretation judicial tyranny. nation from save the thinking can lead to questionable Such * petition. eration of this participate in the consid- Judge Flaum did not

Case Details

Case Name: United States v. Holcomb

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 24, 2011

Citation: 657 F.3d 445

Docket Number: 11-1558, 11-1559, 11-1586, 11-1758

Court Abbreviation: 7th Cir.