“Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder,” a New York Times article from last week began. “Then the new law -- the Fair Sentencing Act of 2010 -- reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010…. But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?”
The lower courts have produced split decisions almost as soon as Congress had passed the law, sometimes even within the same court. Now the Supreme Court has agreed to resolve the question.
In essence, as aptly summarized by Law.com’s Daily Report last October, “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, and that divided the lower federal courts."
The 7th Circuit sided with the government, while the 1st Circuit went the other way. (See U.S. v. Douglas)
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 The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes,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. Then, later in June, an second 11th Circuit panel went the other way in an unsigned but published opinion deciding 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 Federal Public Defender's office in South Florida, the Daily Report observed, which represents both Rojas and Hudson, had missed the deadline to ask for a rehearing in Hudson's case, but quickly asked for and was granted permission to do so based on the Rojas opinion. (Here)
Subsequent to that sequence, the 11th. Circuit now appears to be rehearing both Rojas and Hudson, with preceedings being consolidated & scheduled for in February. (Here)
The Times article is about the pair of 7th. Circuit cases -- Hill v. United States, 11-5721 and Dorsey v. United States, 11-5683, which the Supreme Court has also consolidated and will hear together – but, as ScotusBlog last Nov. 10th. has also observed, the Court may well hold Hill so that it can be considered alongside several other cases that raise the same issue including: Dorsey, Robinson v. United States, 11-5842, Fisher v. United States, 11-6096, Hyde v. United States, 11-6364, Lewis v. United States, 11-6464, and, Hernandez v. United States, 11-6602.