Wednesday, October 12, 2011

Third Circuit "crack sentencing" conflict cases’s Daily Report yesterday morning carries word of “the full 11th U.S. Circuit Court of Appeals last week deciding to take up a question about the scope of a 2010 federal statute designed to reduce the disparity between crack and powder cocaine sentences. The court's decision to use its power of en banc review—usually doled out sparingly—is remarkable because the government has signed on to the defense position in the cases to be reheard.

"At issue,” the article continued, “is a category of defendants who committed drug crimes before President Barack Obama signed the federal Fair Sentencing Act into law on Aug. 3, 2010—but weren't sentenced until after the bill became law.

“Although Attorney General Eric H. Holder Jr. supported the bill, the Justice Department initially argued defendants who committed their crimes before it became law were ineligible for the new mandatory minimum rules if they hadn't been sentenced by then. Prosecutors argued the new law couldn't help those defendants because the statute didn't expressly say it applied retroactively.”

In May, an 11th Circuit panel adopted the prosecution's view in the case of Charles Hudson, serving a 20-year mandatory minimum sentence for crack convictions out of South Florida. The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes, 621 F.3d 1343. [US Supreme Court certiorari denied Apr. 4, 2011 ] Then in late June, a second 11th Circuit panel went the other way in an unsigned but published opinion that was to decide the fate of Carmelina Vera Rojas, another South Florida drug defendant sentenced under a pre-FSA mandatory minimum, this one 10 years. While the Rojas panel didn't mention the earlier decision in Hudson's case, its June 24 opinion said that the 2010 Gomes decision didn't mandate a ruling for the prosecution because, in that case, Gomes had been sentenced by the time the Fair Sentencing Act was signed into law.

The majority of federal appeals courts have followed Gomes in holding that the Federal Sentencing Act was not retroactive. A conflict in 3rd. Circuit cases was qualified this past August with that Court’s foootnoted proviso in United States v. Dixon, 648 F.3d 195, 2011 U.S. App. LEXIS 16374 (3d Cir. Pa. 2011):
"As a threshold issue, we determine that our previous decision in United States v. Reevey, 631 F.3d 110 (3d Cir. 2010), upon which the District Court relied, does not resolve the question presented in this appeal. When considering whether a law applies retroactively, the question is always “to whom”? In Reevey, we held that it did not apply retroactively to the group comprised of defendants who committed their crimes and who were sentenced before the Act was enacted. In doing so, we joined every Court of Appeal to consider the issue. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010);
United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam). The “to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n.5 (distinguishing a defendant in Dixon’s position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group – defendants in Reevey’s position – has no bearing on whether Congress intended to apply the FSA to another – defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir. 2011) (concluding that a case similar to Reevey did not control whether the Act applies to defendants like Dixon)"

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