*2 JONES, Chief Judge, Before and SOUTHWICK, and STEWART Circuit Judges.
PER CURIAM: The court these cases considered argument oral jointly they without because single issue: raise a whether these defen dants, who were convicted inter alia possession with intent crack to distribute cocaine, were entitled ac to be sentenced Fair cording Sentencing to the Act of 2010 (“FSA”), Pub.L. No. 124 Stat. illegal preceded their when conduct sentencing proceedings Act but their post-enactment. occurred The issue is the retroactivity, partial retroactivity, FSA, by Congress a statute intended fairness to cocaine sen “restore Federal at tencing,” by reducing Stat. previous ratio 100:1 between thresholds for powder for crack sentences and among many We are one circuit offenses. that have thoroughly courts vetted issue, we have to the little to add discussions of others. As be seen will below, with that have we side those courts Maraist, Day- M. Helina S. Catherine application. denied retroactive Piedrahita, ries, Robert William Asst. U.S. LA, Rouge, John Attys., Baton Edward The defendants these unrelated Gibson, Rivera, Copes, Stephen Diane Tickles and were Hollenshead Shawna Jabar minimum Higginson, Attys., New sentenced to the Andrew Asst. U.S. each Orleans, LA, possession for 120 months for with intent Plaintiff-Appellee. trast, adopts reasoning crack cocaine. Tickles was con- courts a few
distribute applied by jury possession illegal that have FSA where victed grams predated of crack cocaine and conduct its enactment to distribute 50 *3 sentencing statuto- pre-FSA gov- was sentenced to the occurred afterward. The she now minimum of 120 months. Jabar Gibson ernment reads the Con- ry “intent” of guilty possession gress creating necessary to to “a pled implication” as cocaine, grams statutory penalties five of crack that the revised must distribute He the drug charges. supersede penalty as other was sen- former “in well scheme to mini- sentencings.” tenced the 120 month all future To govern- the ment, analysis crack cocaine of- mum sentence for the “the much [now] turns on the presence fense. more than of an absence express statement incurred extinguishing procedural The unusual of these posture add, liability.” Needless to appellant’s the should, however, In cases be noted. Gib- briefs, government’s written before the case, had expressly son’s the district court briefs, supplemental generally accord with FSA, application refused retroactive analysis. the new preserve while Tickles failed to the issue in plain and advocated error this court. influenced, This court if has been 2011, During spring the of the United bound, by prior our that determination sought in appellate briefing States its to the was not retroactively applicable, FSA uphold the sentences that court im- each despite intentions, its beneficent to con applying without FSA. In posed Au- pre-enactment. duct that occurred United however, gust, in United States filed (5th Doggins, 379, States v. 633 F.3d 384 appeal Supplemental each Brief with Re- Cir.2011). Doggins reflected the common quest urging opposite to Remand re- view of circuit courts. v. United States sult: that each sentence be vacated and Lewis, 1224, (10th Cir.2010); 625 F.3d 1228 re-sentencing the cases remanded for in Brewer, 900, v. United States 624 909 F.3d accordance with the FSA. To achieve this (8th Cir.2010); Bell, n. 7 United States v. case, position government in Tickles’s 803, (7th Cir.2010); 624 814-15 F.3d Unit position, had to take the additional con- Gomes, 1343, v. ed States 621 F.3d 1346 trary herself, to Tickles that the retroac- Cir.2010) (11th curiam); (per United tivity issue properly preserved had been in Carradine, (6th 575, States v. 621 F.3d 580 the trial court. Cir.2010). carefully We have considered merits,
On the government’s Supple- of opinions spoken circuits that have mental Brief had to simplicity recently admit the to the question more FSA’s original position, largely Dixon, its retroactivity. founded on the See United States v. Savings Statute, 109, 195, (3rd § Cir.2011); 1 U.S.C. which 648 F.3d 199-200 repeal holds that the Rojas, 1234, of a criminal statute United States 645 F.3d (11th not extinguish liability Cir.2011), vacated, does for violations 1237-38 reh’g en statute repealing 1055, unless the statute 659 granted, banc F.3d WL 2011 (11th states expressly. 4, so 2011); Because the FSA 4552364 Cir. Oct. United expressly (1st does not extinguish liability 39, com- Douglas, States v. 644 F.3d 42-46 puted Cir.2011); Fisher, under the quanti- former threshold United States v. 635 (7th offenses, 336, ties crack prior Cir.2011); 339-40 F.3d United (2d should apply law to all that pre- Acoff, 200, conduct 634 States v. F.3d 202-03 dated August Cir.2011); enactment of the on FSA Spires, States v. 628 (8th Brief, Cir.2011). Supplemental in con- Having F.3d 1055
215 § 21 841. In Unit- under U.S.C. so, by those persuaded arewe done (5th F.3d 379 Doggins, ed States v. 633 and its heavily on Section have relied Cir.2011), that the Fair Sentenc- we held statute, fails to application apply retroactively to ing Act does not repealing the statement express an contain prior to the Act’s enact- persons sentenced retroactively. sentencing structure prior which was The issue these 340; ment. Fisher, Acoff, 634 at 635 F.3d See 1055; Doggins, over from is whether defen- left 202-03; at 628 F.3d Spires, F.3d at commit- cocaine offenses were dants whose 11- No. States see also United Act, (7th the enactment of the prior ted F.3d 2011 WL *4 following the enact- 2011) who were sentenced 24, Easterbrook, (Judge Aug. Cir. Act, banc). of the should receive reduced ment conclude denying rehearing en We Sentencing to Fair penalties pursuant the by the FSA prescribed penalties that the Act’s revisions. sentencing criminal apply not to federal do preceded the FSA’s conduct that illegal is as Congress’s It is rare that enactment.1 The ameli- easily discernible as is here. Sentencing of the Fair Act purpose orative imposed by the district
The sentences obviously most in its name. are AF- is reflected of these cases in each courts Moreover, expressed preamble, in its FIRMED. Sentencing explicit purpose Fair Act’s the STEWART, Judge, E. Circuit CARL fairness to Federal cocaine is restore “[t]o dissenting: Underlying purpose was sentencing.” prior that the Congress’s determination straightforward present
These cases
sentencing ratio for crack cocaine
100:1
interpretation:
question
of
powder
to
cocaine offenses was
offenses
that all federal
Congress intended
whether
fundamentally unfair.
In addition to its
immediately receive fair
offenders
granted emergen-
the Act
provisions,
other
sentences,
Congress intended
or whether
cy authority for the
States Sen-
United
offenders
that a
of federal cocaine
subset
tencing
to revise the federal
Commission
merely on the ba-
unfair sentences
receive
in accordance with
sentencing guidelines
underlying
time of their
of the date and
sis
days.
Act
the
within 90
is not
conclude the latter
offenses. To
unfair,
all of the
only
inconsistent with
necessary inference is that the will
“The
preceded
that
congressional deliberation
to halt unfair
Congress
was for the FSA
Sentencing
Fair
passage
final
immediately.”
sentencing practices
Unit-
Moreover,
majority, and
panel
Act.
1234,
Rojas,
F.3d
1240
ed States
645
view, unduly
support
its
the circuits
(11th Cir.2011).
by the dis-
expressed
As
injus-
of a chronic
hinder the amelioration
Whitfield,
trict court in
States v.
reasons,
following
I dissent
tice. For the
“[tjhis
a sen-
impose
court is hesitant to
majority,
approach
from the
taken
unfair.
Congress
that
has deemed
tence
to this court as
Holding
appears
has
otherwise
Sentencing Act of 2010
The Fair
2:10-CR-13, 2010
illogical.”
in-
No.
WL
of crack cocaine
increased the amount
(N.D.Miss.2010).
5387701,
“That
at *2
is
drug
in a federal
offense
volved
Congress wanted the new ‘fair’ sentences
mandatory minimum
necessary
trigger
to
error,
Tickles,
sentencing deci-
in the district court's
the stan
this court determines
1. As to
Olano,
United States
dard of review for ourselves.
U.S.
United States v.
507
sion.
(5th
Molina-Solorio,
303
Cir.
577 F.3d
(1993).
L.Ed.2d 508
113 S.Ct.
error,
2009).
plain
much less
There was no
everyone
enactment,
to
sentenced after the
apply
sentenced after the statute’s
law,
just
Act became
Sentencing
regardless
Fair
of whether
underlying
of-
some,
necessary implication
prior
is
fense conduct occurred
to the Act’s
States v.
what it did.” United
enactment.
Douglas,
See United States v.
445, 461,
(1st
Cir.2011);
No.
657 F.3d
In of the conclusion that impose disproportionately harsh sentences Sentencing apply Fair Act should not to all imprisonment many on crack cocaine federal cocaine offenders sentenced after offenders, despite Congress’s clear and ob- enactment, majority its relies on the vious determination that such are statute, general savings § 1 U.S.C. reason, unfair. For this I respectfully dis- Court, however, Supreme has ex- sent. plained savings statute “cannot
justify disregard Congress of the will of manifested, expressly by
as either nec-
essary implication, subsequent in a enact- States, Ry.
ment.” Great N. v.Co. United 452, 465,
208 U.S. 28 S.Ct. 52 L.Ed. (1908). All that can be said in punish- favor of GRIFFIN, Sr., Rommel E. ing yet under the old law defendants not Plaintiff-Appellant, sentenced when the new one took effect is that if Congress were omnicompetent would, caution, out of an abundance of SERVICE, UNITED PARCEL INCOR- “expressly” have directed that sentences PORATED, Defendant-Appellee. imposed after the new law went into No. 10-30854. subject effect would guideline be to the amendments the new law or- United States Court of Appeals, questionable dained---- Such thinking Fifth Circuit. can gratuitously silly lead to results in particular cases—these for exam- Oct.
ple.
from denial of rehearing en
The will Congress, expressed substance,
the Fair Sentencing Act’s
preamble, title, disregarded will be
the courts’ imposition continued of severe Congress explicitly has de-
termined to be unfair. Accordingly, I
agree with a number of our sister circuits provisions of the Fair Sentencing
Act apply to all federal cocaine offenders