Case Information
*2
HURWITZ, Circuit Judge:
In the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372, Congress addressed the inequitable *3 disparity between the sentences prescribed for crack and powder cocaine offenses. The question in this case is whether a defendant sentenced for a crack cocaine offense before the FSA was enacted is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2). We hold, consistent with all circuits to have addressed the issue, that the FSA’s lowered mandatory minimums are not available to such individuals.
I.
On October 10, 2007, after pleading guilty to distributing 83.2 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii), Yale Augustine was sentenced to 121 months in custody. At the time, the offense carried a mandatory minimum sentence of 120 months, 21 U.S.C. § 841(b)(1)(A) (2006), and the district court applied a Sentencing Guidelines range of 121 to 151 months, see U.S.S.G. § 2D1.1 (2006).
“Under the Controlled Substances Act, 21 U.S.C. §§ 801
et seq., and the related Sentencing Guidelines, § 2D1.1, a
drug trafficker dealing in crack cocaine at the time of
[Augustine’s] conviction was subject to the same sentence as
one dealing in 100 times as much powder cocaine.”
United
States v. Fields
,
The FSA, enacted on August 3, 2010, was in part Congress’ response to criticism of the extant sentencing scheme; it reduced the crack/powder disparity from 100-to-1 to 18-to-1. Fields , 699 F.3d at 522. The FSA raised the quantity of crack cocaine necessary to trigger a five-year mandatory minimum sentence from 5 to 28 grams and raised the quantity necessary to trigger a ten-year mandatory minimum sentence from 50 to 280 grams. Pub. L. No. 111–220 § 2(a), 124 Stat. 2372 (amending 21 U.S.C. § 841(b)(1)).
The FSA gave the Sentencing Commission emergency authority to amend the Sentencing Guidelines to bring them in line with the new statutory penalties. § 8, 124 Stat. 2374. Pursuant to that authority, the Commission promulgated Amendment 748, which lowered the offense levels for crack cocaine offenses in the drug quantity table of Guidelines § 2D1.1(c). U.S.S.G. App. C, amend. 748 (Nov. 2010). Amendment 748 became effective November 1, 2010, but did not apply retroactively. Id.
6 U NITED S TATES V . A UGUSTINE Amendment 750 made the emergency changes to § 2D1.1(c) permanent as of November 1, 2011. U.S.S.G. App. C, amend. 750 (Nov. 2011). Amendment 759 also made those changes retroactive. U.S.S.G. App. C., amend. 759 (Nov. 2011); U.S.S.G. § 1B1.10(c) (listing Part A of Amendment 750 as retroactive).
On December 22, 2011, Augustine filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2), a generally applicable statute pre-dating the FSA, allows a reduction of sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Augustine noted that the FSA had lowered the mandatory minimum for distributing 83.2 grams of crack cocaine to 60 months, and that the applicable Guidelines range had been lowered to 70 to 87 months. See 21 U.S.C. § 841(b)(1)(B)(iii); U.S.S.G. § 2D1.1. Augustine requested that the district court reduce his sentence to 70 months.
The district court instead lowered Augustine’s sentence by only one month, to 120 months, the mandatory minimum under the law in effect at the time of Augustine’s sentencing. The court expressed regret that it could not lower the sentence further, but determined that the FSA did not apply retroactively. This appeal addresses that legal conclusion, which we review de novo. United States v. Paulk , 569 F.3d 1094, 1094–95 (9th Cir. 2009) (per curiam).
II.
A.
We have twice before confronted the application of the
FSA’s reduced mandatory minimums to defendants sentenced
before the statute was enacted.
See United States v. Baptist
,
646 F.3d 1225 (9th Cir. 2011) (per curiam),
cert. denied
*6
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.
We noted that “[t]he 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.”
Baptist
, 646 F.3d at 1227 (citing
Warden, Lewisburg Penitentiary v. Marrero
,
Augustine attempts to distinguish Baptist because it involved a direct appeal rather than review of denial of a § 3582(c)(2) motion. This argument, however, founders on Sykes .
Like Augustine, Sykes pleaded guilty to distribution of at
least 50 grams of crack cocaine and was sentenced to 121
months in custody before the FSA became effective.
Sykes
In attempting to distinguish Sykes , Augustine notes that the post-FSA Guidelines amendments, Amendments 748, 750, and 759, had not yet been promulgated when Sykes’ § 3582(c)(2) motion was denied. He argues that applying a pre-FSA mandatory minimum and a post-FSA Guidelines range is “odd,” because even the high end of the post-FSA Guidelines range will often be well below the pre-FSA mandatory minimum, as is the case here.
Augustine’s observation has some force. But, as we
explained in
Baptist
, Congress seems to have intended any
such oddity.
Baptist
,
In the end, Augustine’s argument that the FSA’s
mandatory minimums apply retroactively in § 3582(c)(2)
proceedings ignores the core holding of
Baptist
and
Sykes
:
Congress did not, as the General Savings Statute requires,
express in the FSA any intention that the new mandatory
minimums apply to those sentenced before the effective date
of the act.
See Baptist
,
B.
Augustine also argues that
Dorsey v. United States
,
132 S. Ct. 2321 (2012), decided after
Baptist
and
Sykes
effectively overrules those decisions. On its face, however,
Dorsey
does not aid Augustine, as the Supreme Court there
found the FSA’s lower mandatory minimums applicable to
defendants sentenced
after
the Act’s enactment, even if the
*8
10
U NITED S TATES V . A UGUSTINE
relevant conduct and conviction occurred beforehand. at
2326;
see also United States v. Robinson
,
Augustine’s real argument is that it would be arbitrary to
make application of the FSA turn on the date of sentencing,
often a matter of happenstance unrelated to the defendant’s
culpability. The Supreme Court, however, expressly
recognized “that application of the new minimums to pre-Act
offenders sentenced after August 3 will create a new set of
disparities,” but nonetheless concluded “that this particular
new disparity (between those pre-Act offenders already
sentenced and those not yet sentenced as of August 3) cannot
make a critical difference.” 132 S. Ct. at 2335. This
statement is dictum, but considered Supreme Court dictum is
special. “We do not treat considered dicta from the Supreme
Court lightly. Rather, we accord it appropriate deference.”
United States v. Montero-Camargo
,
In light of the
Dorsey
dictum, other circuits to consider
the issue have unsurprisingly – and unanimously – rejected
the argument that
Dorsey
requires retroactive application of
the FSA’s mandatory minimums to those sentenced before
the Act’s passage.
United States v. Turlington
,
We recognize, as did the Supreme Court, that this regime creates a disparity between those sentenced before and after adoption of the FSA. But, as Dorsey noted, some disparities “will exist whenever Congress enacts a new law changing sentences.” 132 S. Ct. at 2335. Any unfairness of the disparity resulting from the inapplicability of the FSA to Augustine, however, is beyond the province of this court to resolve. In light of the General Savings Statute, Congress, through its silence in the FSA on the question of retroactivity, has resolved the issue.
C.
Like Augustine, many sentenced for crack cocaine offenses before enactment of the FSA are eligible for some reduction of sentence in light of the Guidelines Amendments. See U.S.S.G. App. C., amends. 748, 750, 759. These defendants may receive reductions of sentences to the statutory minimums in effect at the time of sentencing if the applicable Guidelines range so allows. The district court, however, may not impose a sentence below applicable pre- FSA mandatory minimums.
Here, for example, the post-FSA Guidelines amendments lowered the range applicable to Augustine to 70 to 87 months. The district court reduced Augustine’s sentence to 120 months, the applicable mandatory minimum. The Government does not oppose that reduction, and we encourage district courts to consider similar reductions when confronted with § 3582(c)(2) motions from similarly situated defendants. Although relatively minor, such reductions are consistent with the FSA’s goal to mitigate the unfair disparity between crack and powder cocaine offense sentences.
III.
For the reasons above, we hold that the FSA mandatory minimums do not apply in § 3582(c)(2) proceedings to defendants sentenced before the FSA was enacted. The district court’s order is therefore affirmed.
AFFIRMED.