MEMORANDUM OF DECISION ON SENTENCING ISSUE

D. BROCK HORNBY, District Judge.

Congress enacted the Fair Sentencing Act of 2010 to "restore fairness to Federal cocaine sentencing."1 Its most notable provision increases the amount of crack cocaine necessary to trigger mandatory five- and ten-year sentences. That change will reduce the current dramatic disparity in mandatory crack cocaine and powder cocaine sentences.

The issue in this case is whether the new provision that lowers the mandatory sentencing floors applies to a defendant who has not yet been sentenced, but who engaged in crack cocaine trafficking and pleaded guilty under the previous harsher regime. I conclude that it does.

FACTS

The defendant, William Douglas, sold cocaine base—crack—to an undercover officer on four separate occasions in 2009. The total quantity was 113.1 grams. Douglas pleaded guilty on January 11, 2010. On all those dates, the statute in effect required a prison term of no less than ten years, given the quantity of crack cocaine involved.2 Then on August 3, 2010, the President signed into law the Fair Sentencing Act of 2010. That statute raised the amount of crack cocaine necessary to trigger the ten-year mandatory minimum from 50 grams to 280 grams and the amount of crack cocaine necessary to trigger the five-year mandatory minimum from 5 grams to 28 grams.3 Under the Fair Sentencing Act of 2010, Douglas would be subject to a mandatory minimum of five years in prison (although his Guideline range is higher than that), rather than the stiffer ten years.

Now it is time to impose sentence, and I must determine which law governs. The government says that I must apply the pre-existing and harsher mandatory ten-year minimum penalty; the defendant asks me to sentence under the new penalty provisions.

ANALYSIS

The Fair Sentencing Act of 2010 says nothing directly about the categories of offenders to whom it applies (those who have not yet offended; offenders not yet convicted; offenders convicted but not yet sentenced; offenders already sentenced).4 The question is how to determine Congress's will on that subject in the absence of any explicit direction. To do so, I consider the statute's text and context, the Constitution's ex post facto clause, the so-called Saving Clause in Title 1 of the United States Code, the Sentencing Reform Act of 1984, and appellate decisions.

The Fair Sentencing Act of 2010

The public and political debate over federal crack cocaine penalties that generated this new law is well-known; I summarize it only briefly for context. Harsh crack penalties were first introduced in the Anti-Drug Abuse Act of 19865 upon the death of Len Bias, an All-American college basketball player, who died upon ingesting cocaine two days after the Boston Celtics drafted him.6 The generally accepted belief then was that crack was far more addictive than powder and far more associated with violence.7 Congress legislated mandatory minimum sentences—sentencing floors— based on a 100:1 ratio between crack and powder (five-year sentence for 5 grams of crack or 500 grams of powder; ten-year sentence for 50 grams of crack or 5,000 grams of powder). The United States Sentencing Commission then adopted that ratio throughout the guideline quantity calculations.8

As the years passed, the factual premises for the severe differential came into question,9 and increasing attention was directed to significant racial disparities that it produced in federal drug sentencing.10 The Sentencing Commission published studies on the crack/powder topic, called repeatedly but unsuccessfully for reduction of the disparities, and was overruled by Congress in the Commission's own 1995 effort to reduce the Guideline disparities.11 It issued four reports to Congress on cocaine sentencing policy.12 Finally in 2007, it successfully reduced the crack/powder ratio under the Guidelines from 100:1 to between 25:1 and 80:1,13 and it applied those new Guidelines retroactively to offenders already sentenced, resulting in "early" release from 2008 to 2010 of about 16,000 federal prisoners.14 But the Commission did not lower the statutory sentencing floors (it has no authority to change statutory provisions). That history is the prelude to the enactment of the Fair Sentencing Act of 2010.

The Public Law that created the Fair Sentencing Act of 2010 is titled an act "[t]o restore fairness to Federal cocaine sentencing." Section 1 says that it "may be cited as `the Fair Sentencing Act of 2010.'" Section 2 is ameliorative, and raises the quantities of crack necessary to trigger the five-year and ten-year sentencing floors that I have already recounted (5 grams becomes 28 grams and 50 grams becomes 280 grams). Section 3 is ameliorative and eliminates the mandatory minimum sentence for simple possession of crack. Section 4 increases fine penalties. Section 5 directs the Sentencing Commission to review and amend the Guidelines to provide a two-level Guideline increase if a defendant used, threatened or directed use of violence. Section 6 directs the Commission to provide a two-level increase for a variety of circumstances including bribery and "super-aggravating factors." Section 7 is ameliorative and directs the Commission to cap the Guideline base offense at 32 for a defendant who receives a minimal role adjustment and to subtract 2 additional levels for certain other ameliorating circumstances. Section 8 gives the Commission emergency authority and instructs it to promulgate all necessary Guidelines, amendments and policy statements within 90 days of enactment, i.e., by November 1, 2010. Section 9 requires the Commission to report to Congress within one year concerning the effectiveness of drug court programs. Section 10 requires a five-year report from the Commission on the impact of changes made by the Fair Sentencing Act and the attendant Guideline amendments.

Thus, the new law contains significant ameliorating provisions, modest penalty increases and some urgency. It has already caused the Commission to issue amended, emergency guidelines, including amendments that reduce the base offense levels for various quantities of crack cocaine, all effective November 1, 2010.15 The quantity amendments are based explicitly upon the Fair Sentencing Act's new mandatory minimum sentences.16 They will apply to all offenders sentenced after November 1, 2010, even if those offenders committed their offenses before August 3, 2010.17

Not surprisingly, the Fair Sentencing Act emerged out of compromise. The bill that Senator Durbin introduced in the Senate would have created a 1:1 ratio, but the outcome was 18:1.18 The Act significantly lowers crack sentences, but it also increases penalties for certain conduct. Another subject of debate was whether the new penalties should apply retroactively to those already sentenced and in prison, as the Commission's 2007 amendments had done.19 The decision was no.20 But the statute itself contains no provision stating in so many words either that it applies to all sentencings going forward, or that it applies only to criminal conduct that occurs after its effective date.21

Ex Post Facto Clause

The Constitution's ex post facto clause, Art. 1, § 9, cl. 3, "forbids the application of any law or rule that increases punishment to preexisting criminal conduct."22 Thus, the new enhancements in the Fair Sentencing Act of 2010 cannot be applied if they result in a harsher penalty for someone who had already committed the crime.23 But the ex post facto clause does not prohibit retroactive change that lightens penalties, as does the changed crack/powder ratio. And there is no legal impediment if sentencing amendments, taken as a whole, result in no harsher punishment to a particular defendant.24

Thus, the ex post facto clause does not suggest any likely congressional intent one way or the other.

Saving Clause,25 Sentencing Reform Act of 1984, and Case Law

In 1871, Congress enacted its first general savings provision, c. 71, 16 Stat. 432. The purpose of the savings provision was "to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of `all prosecutions which had not reached final disposition in the highest court authorized to review them.'"26 Under previous cases, the substitution of a new statute with different penalties would result in the termination of all pending prosecutions, even when the statute merely reduced the applicable sentence.27 In 1947, Congress codified the statute at 1 U.S.C. § 109 (the "Saving Clause"). Now it provides:

The Saving Clause has led four circuit courts and several district courts to refuse to apply the more lenient mandatory minimum sentences of the Fair Sentencing Act to criminal conduct that occurred before August 3, 2010, the effective date of the Act.28 Unlike this case, however, all those defendants had already been sentenced before August 3, 2010.

The government says that the Saving Clause nevertheless applies here as well, and to all future prosecutions and sentencings based on pre-August 3, 2010, conduct.29 It says that the Fair Sentencing Act does not "expressly provide" that the previous harsher penalties are extinguished or released, and consequently that omission is the end of the statutory construction exercise. The defendant, on the other hand, advances four arguments for not applying the Saving Clause here. First, he says, the Fair Sentencing Act of 2010 does not release or extinguish a penalty, the concern of the Saving Clause. Instead, it "merely modified the extent to which the amount of drugs involved in the offense cabins the court's sentencing discretion."30 In other words, a sentencing judge still has authority to impose the harsher sentence that the old law provided as a floor. Second, he argues, the Saving Clause does not apply to remedial or procedural changes, the type of changes that he says the Fair Sentencing Act makes.31 Third, the Saving Clause does not apply if it frustrates later congressional intent reflected "by express declaration or necessary implication" in the new statute.32 Here, applying the Saving Clause to make federal judges continue applying the old mandatory minimums, he maintains, would frustrate the congressional goal of remedying their racially discriminatory impact.33 Fourth, he asserts that applying the Saving Clause here to preserve the old mandatory minimums would raise serious Fifth Amendment and Eighth Amendment issues that should be avoided.34

The defendant's first two arguments are clearly foreclosed by Supreme Court interpretation of the Saving Clause. In Warden v. Marrero,35 the issue was whether a new statute repealing an earlier statutory prohibition on parole could benefit a defendant who had already been sentenced and imprisoned under the old no-parole system.36 In Marrero, the Court applied the Saving Clause to enforce the earlier parole prohibition even though the new statute still allowed the sentencing judge and the Board of Parole discretion to prohibit parole in individual cases.37 Here, analogously (and contrary to the defendant's argument), the Fair Sentencing Act extinguishes the mandatory minimum of ten years for a defendant with Douglas's quantity of crack, even though a sentencing judge could still impose a ten-year penalty. And although Marrero did recognize a distinction between substance, on the one hand, and procedure or remedy, on the other (stating that "the general saving clause does not ordinarily preserve discarded remedies or procedures"), the Marrero Court distinguished "punishment" (actually mentioning mandatory minimum sentences) from procedure and remedy, finding that punishment was subject to the Saving Clause.38

Contrary to the defendant's fourth argument, I see no serious Fifth or Eighth Amendment concern that would cabin Congress's authority to make its new reform apply only to criminal conduct occurring after the statute's enactment, and I do not further address that argument.39

There is force to part of the defendant's third argument, however—that provisions of the Fair Sentencing Act, either by express declaration or necessary implication, prevent applying the 1871 Saving Clause to preserve the harsher statutory minimums for sentences imposed in the future.

In Marrero, the new statute had its own saving clause that specifically preserved the harsher penalty for prosecutions occurring prior to the effective date of the statute.40 Thus, Marrero was not a case where the new statute expressly or by necessary implication released or extinguished the previous harsher penalty. In that respect, one element in the Fair Sentencing Act and its relationship to pre-existing law deserve closer attention. It is an element that the lawyers did not address in their written briefs (I did raise it with them at oral argument on October 20, 2010), and the cases refusing to apply the Fair Sentencing Act's new penalties have not mentioned it. It is this: Unlike the statute in Marrero, there is no saving clause in the Fair Sentencing Act itself. To the contrary, in this statute Congress expressly granted the Commission emergency Guideline amendment authority,41 so that the Commission could adopt Guideline amendments effective almost immediately.42 And in addition, Congress expressly directed the Commission to adopt Guideline amendments "as soon as practicable, and in any event not later than 90 days", i.e., by November 1, 2010.43 What amendments? To be sure, the new enhancement provisions, but also any changes in the new crack penalty provisions. Where would the latter changes come from? From the new statutory minimum provisions. According to the statutory language, Congress instructed the Commission "pursuant to the emergency authority provided under paragraph (1), [to] make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law."44 The Commission has followed Congress's instructions. Effective November 1, 2010, "the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table."45 But the new Guidelines cannot be "conforming" and "achieve consistency" (Congress's express mandate) if they are based upon statutory minimums that cannot be effective to a host of sentences over the next five years until the statute of limitations runs on pre-August 3, 2010 conduct.

What is more, for years the Sentencing Reform Act of 1984 has directed expressly that the governing Guidelines are those in effect on the day a defendant is sentenced.46 The Guideline commentary refers to this statutory provision as "Congress's directive to apply the sentencing guidelines in effect at the time of sentencing."47 Thus, during the past two decades of the Guidelines' existence, whenever the Commission has adopted Guideline amendments, those amendments have applied to all defendants sentenced thereafter, regardless of when the crime was committed.48 That is what will happen to the new Guidelines' alterations of the base offense levels for various quantities of crack: the new Guidelines will apply to all future sentencings after November 1, 2010, even if the criminal conduct occurred before the Fair Sentencing Act's effective date. Congress "expressly" required that outcome by ordering the emergency amendments within 90 days.49 Thus, many pre-August 3, 2010 offenders will benefit from the changed crack offense levels, at least if the mandatory minimums do not apply to them.50 Congress instructed the Commission to make such changes and make them immediately, under an existing statutory structure that makes them apply to those who have already offended but who have not yet been sentenced. It would be a strange definition of "conforming" and "consistency" to have these new amended Guidelines go into effect while the old and therefore inconsistent statutory minimums continue.

Finally, Congress stated that its goal was to "restore fairness to Federal cocaine sentencing."51 Understandably, Congress might not have wanted a large volume of previously sentenced offenders to be released from prison immediately. But what possible reason could there be to want judges to continue to impose new sentences that are not "fair" over the next five years while the statute of limitations runs?52 Unlike Marrero, the explicit congressional grant of emergency guideline amendment authority and the mandate of "consistency" and "conforming" amendments, coupled with the express language of the Sentencing Reform Act of 1984 (that the Guidelines in effect on the day of sentencing control irrespective of when offense conduct occurred), unmistakably demonstrate Congress's urgency and expectation of immediate change.

The Supreme Court explained in 1908 that the 1871 Saving Clause "cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment."53 I observe that in 1974 Marrero did not overrule this statement. In fact, Marrero specifically described the Great Northern principle as applying to later congressional will manifested by "fair implication or expressly."54 If Congress's action here concerning when the restoration of fairer sentencing is to occur does not satisfy the adverb "expressly," interpreting the Fair Sentencing Act to apply to all new sentences is certainly a "fair implication," and a "necessary implication" of what Congress has done. Indeed, it is difficult to see anything as demonstrating a contrary implication.

In fairness to the government, I recognize some merit in its contrary argument. The government does not argue that Congress actually intended a delay in the effectiveness of the statutory minimum changes. Instead, the government relies solely on what it believes to be neutral rules of construction: that because of the Saving Clause, unless the 2010 Act expressly repealed the old statutory minimums, the harsher penalties must continue.55 Here, the government argues, Congress did not use sufficiently explicit language. Sometimes invocation of blunt rules that apply without subtlety is useful (every trial judge knows that). But not here, where the question is what the democratically elected Representatives and Senators have accomplished. I do not rely upon 1871 to escape the ramifications of what Congress set out to do in 2010. Instead, I read the statutes of 1871, 1984 and 2010 together, and determine that in 2010 Congress changed the course of all federal crack sentencings thereafter.56

I conclude, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment. Yes, the 1871 Saving Clause deserves attention, but it does not command special attention. Generally, as Great Northern recognized, an earlier Congress cannot bind a later Congress. If it is a stretch to say that the Fair Sentencing Act of 2010 "expressly provide[s]" that the previous mandatory minimums are vacated for future sentences, Congress certainly made clear the urgency of change and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow. In the words of the Supreme Court, it is either a "necessary implication" or a "fair implication" that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal crack sentencings that are not "fair."57

CONCLUSION

My holding is this: a defendant not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act's altered mandatory minimums apply to such a defendant as well.

The Clerk's Office shall schedule this matter for sentencing accordingly.

SO ORDERED.