HARRY S. MATTICE, JR., District Judge.
Presently before the Court are the sentencing memoranda of Defendant [Court Doc. 40] and the Government [Court Doc. 41]. The key question the parties identify and discuss in each of their memoranda is whether the amendments to the mandatory minimum penalties for violations of the Controlled Substances Act codified in the Fair Sentencing Act of 2010 ("FSA") Pub. L. No. 111-220, 24 Stat. 2372 (Aug. 3, 2010) should be apply to Defendant, who committed the crimes for which he pled guilty before the enactment of the FSA, but who pled guilty and is being sentenced after the FSA was signed into law.
For the reasons explained below, this Court
On January 21, 2010, Chattanooga Police Department Officer Daniel Jones swore out a criminal complaint against Defendant Jackie Campbell before Magistrate Judge Susan K. Lee, alleging that Defendant was found in possession of 6 ounces (approxi-mately 170 grams) of crack cocaine and 50 ecstasy pills and thus that he violated 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). [Court Doc. 1, Criminal Compl. and Aff. of Daniel Jones]
On January 26, 2010, the Grand Jury indicted Defendant on one count of possessing with the intent to distribute fifty
On September 27, 2010, Defendant entered a plea of guilty on that count before Magistrate Judge Lee, and on October 19, 2010, this Court entered an order granting Defendant's motion to withdraw his not guilty plea, accepting and adopting Magistrate Judge Lee's Report and Recommendations regarding Defendant's guilty plea, adjudging Defendant guilty of the charges in Count One of the Indictment, and setting the matter for consideration of the plea agreement and sentencing on Monday February 7, 2011. [Court Doc. 38].
On January 20, 2011, Defendant filed his sentencing memorandum [Court Doc. 40], and on February 4, 2011, the Government filed its sentencing memorandum [Court Doc. 41]. During the sentencing hearing on February 7, 2011, it became clear that further consideration of the FSA's applicability was merited. Therefore, the sentencing hearing was re-set for February 11, 2011 [Court Doc. 42] and the parties submitted supplemental briefing on the issue on February 9, 2011 [Court Doc. 44, Govt.'s Notice of Suppl. Authority; Court Doc. 45, Def.'s Notice of Suppl. Cases].
This matter is now ripe for consideration.
On August 3, 2010, President Barack Obama signed into law the Fair Sentencing Act of 2010 ("FSA"), which is described as "An Act To restore fairness to Federal cocaine sentencing" and which alters the punishment scheme for certain drug-related crimes. Pub. L. No. 111-220, 24 Stat. 2372 (2010). One of the FSA's major effects is "cocaine sentencing disparity reduction," that is, reducing the disparity between the prescribed federal sentences for controlled drug crimes involving equivalent volumes of powder cocaine and crack cocaine—the so-called "crack-to-powder" ratio, previously 100:1 and reduced by the FSA to 18:1. Id. at § 2. It achieves this reduction in a number of ways, both by reducing the amounts of crack cocaine necessary to trigger a mandatory minimum sentence and by directing the United States Sentencing Commission to review and amend the Federal sentencing guidelines to reduce the impact of sentence adjustments based "solely on drug quantity." Id. at §§ 2-3 and §§ 7-8.
Although it granted the Sentencing Commission "emergency authority" to "promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act," it made no similar provisions regarding its other amendments to the penalty scheme. Given this emergency authority, and given that 18 U.S.C. § 3553(a)(4)(A)(ii) mandates that the sentencing guidelines courts are to take into account during sentencing are those "in effect on the date the defendant is sentenced," the sentencing guidelines currently in effect already incorporate the FSA's amendments. This has resulted in the current odd-and, Defendant argues, inequitable—situation wherein a defendant who committed a crime before the FSA was in effect but is sentenced after is subject both to the old mandatory minimum provisions containing a disparity Congress has declared "unfair" and the new sentencing guidelines, applying "fairer" treatment.
Given that applying these changes could effect a significant reduction in a given sentence, numerous motions and appeals were filed in federal courts around the country, ranging from prisoners seeking reconsideration of their sentences to defendants with cases pending appeal seeking
The United States Court of Appeals for the Sixth Circuit first addressed the FSA's retroactivity in United States v. Carradine, 621 F.3d 575 (6th Cir.2010). In that case, the defendant had already been sentenced and was appealing his conviction to the Sixth Circuit when the FSA was enacted into law, at which time the court accepted supplemental briefing on whether the defendant was subject to the old version of 21 U.S.C. § 841, under which he would be subject to statutory minimum penalties, or whether he was entitled to the benefit of the new FSA provisions, under which he would be subject to no such minimum penalties. Id. at 580. The Sixth Circuit held that:
Id.
In his sentencing memorandum, Defendant urged the Court to follow the reasoning of United States v. Douglas, 746 F.Supp.2d 220, 2010 WL 4260221 (D.Me. Oct. 27, 2010), in which Judge Hornby held that "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," and distinguished Carradine as involving a defendant already sentenced at the time the FSA went into effect.
Although the Court has given this matter substantial consideration, it is unable to agree with the Douglas opinion, particularly insofar as it believes Carradine is entirely distinguishable from the current situation solely on the basis that Carradine involved an already-sentenced defendant. Although the Sixth Circuit did not discuss the FSA's retroactivity in significant depth, nothing in its Carradine opinion indicates that its holding is limited to defendants who had already been sentenced at the time the FSA's changes went into effect. In fact, the plain language of the opinion—"we must apply the penalty provision in place at the time Carradine committed the crime in question"—indicates precisely the opposite. Carradine, 621 F.3d at 580 (emphasis added). The Sixth Circuit not only considered the FSA's effect on the applicable mandatory minimums, but explicitly held that the relevant date was the date of the crime, not the date of sentencing.
Further, this choice of the date of the crime as dispositive was not an offhand statement, but rather the result of reference to longstanding Supreme Court case-law about the applicability of the general savings statute to the retroactivity of changes in criminal penalties. The Douglas opinion relies heavily on Judge Hornby's belief that the intent and structure of the FSA manifests a congressional intent that the statute be applied retroactively, if not expressly, then by "fair implication."
Finally, the extant legal authority around the country regarding this issue does not reveal a clear consensus and, particularly at the appellate level, several courts have reiterated the rule that the dispositive date is the date on which the crime was committed. Two subsequent unpublished Sixth Circuit cases, United States v. Johnson, No. 09-2173, 407 Fed. Appx. 8, 12, n. 1, 2010 WL 5395725, *3, n. 1 (6th Cir. Dec. 28, 2010) and United States v. Sweeney, No. 08-3597, 402 Fed.Appx. 37, 41, n. 3, 2010 WL 4536901, *4, n. 3 (6th Cir. Nov. 03, 2010), both cite Carradine for the proposition that the FSA does not apply retroactively to mandatory minimums. Further, though both also involved defendants already sentenced at the time the FSA went into effect, Johnson quoted the Carradine holding that "we must apply the penalty provision in place at the time [the defendant] committed the crime." Johnson, 407 Fed.Appx. at 12, n. 1, 2010 WL 5395725 at *3, n. 1 (citing Carradine, 621 F.3d at 580). Although the district court cases within the Sixth Circuit deal largely with previously-sentenced defendants, those that do not seem to be evenly split. Compare United States v. Franklin, No. 10-20467, 2011 WL 346085, at *2 (E.D.Mich. Feb. 03, 2011) (quoting Carradine in finding that "the Sixth Circuit was clear regarding the Act's applicability when it stated that a court in this circuit `must apply the penalty provision in place at the time [a defendant] committed the crime in question.' As a result, even though Defendants have presented a good faith argument that the FSA should apply because they have not yet been convicted or sentenced, the Court is bound by Sixth Circuit precedent requiring application of the guidelines in place at the time the offenses occurred") with United States v. Gillam, No. 1:10-cr-181-2, 753 F.Supp.2d 683, 684-85, 2010 WL 4906283, at *1 (W.D.Mich. Dec. 03, 2010) (applying the Douglas reasoning and finding that "the Fair Sentencing Act permits no further federal crack cocaine sentencings that are not `fair'").
Outside the Sixth Circuit, several other courts of appeal have adopted the Carradine reasoning. Given the nature of the appellate process, the vast majority of these cases involved previously-sentenced defendants but, importantly, those courts focused on the time the crime was committed, rather than the time of sentencing, and none contained language indicating that the result would be different based on the defendant being sentenced after the FSA went into effect. United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010)
Some courts have even noted that "no relevant authority permits a district court to impose a sentence below the statutory mandatory minimum. In fact, the court would have committed reversible error if it had sentenced him to less than [the mandatory minimum]." Gomes, 621 F.3d at 1346. See also, United States v. Wilson, 401 Fed.Appx. 760, 762, 2010 WL 4561381, at *2 (4th Cir. Nov. 12, 2010) (noting "even after amendments to the crack cocaine Guidelines, `sentencing courts remain bound by the mandatory minimum sentences prescribed [by statute].' Thus, excepting its downward departure based on substantial assistance, the district court
The Court is aware that its ruling today may admit some inevitable arbitrariness into the already-difficult myriad of value judgments a court must make when sentencing defendants; two defendants, otherwise equivalently situated, may receive very different punishments because one committed his crime before the FSA went into effect and one after. As the Third Circuit noted, however:
Reevey, 631 F.3d at 114 (3d Cir.2010) (quoting United States v. Caldwell, 463 F.2d 590, 594 (3d Cir.1972)).
For all the reasons explained herein, this Court hereby
One final matter merits discussion here. Paragraph 15 of the Plea Agreement between Defendant Campbell and the Government states, in relevant part:
(Court Doc. 36, Plea Agreement ¶ 15.)
Although there are few opinions addressing the applicability of the FSA mandatory minimum amendments, several of those opinions that are extant find that defendants had waived the right to appeal this issue in their plea agreements. Given the level of notice and briefing each party has provided the other and the Court regarding this dispute, it is clear that Defendant and the Government have fundamentally different understandings of what the "applicable mandatory minimum sentence" is in this case. Further, the Court's ruling on and understanding of this issue, solely a matter of law on which several district courts within the Sixth Circuit have already expressed disagreement, is significant to other defendants similarly situated.
Thus, the Court hereby
Further, reducing the disparity between crack and powder cocaine sentences was only one of the FSA's goals; the statute also directed the U.S. Sentencing Commission to review and amend the sentencing guidelines to provide harsher penalties for those defendants who targeted more vulnerable classes of individuals; who took more of a leadership role in drug trafficking or production; or who used violence, threats, or witness intimidation as part of their offense. Pub. L. No. 111-220, §§ 5-6, 24 Stat. 2372 (2010). Defendant's argument that the intent ("to increase fairness") and structure—reducing the crack-to-powder disparity in both the mandatory minimum penalties and in the sentencing guidelines—compels courts to make the crack-to-powder changes retroactive reads out of the statute these other changes, which Congress could have thought as, if not more, important to "increasing fairness," but which Congress chose to effectuate only by altering the guidelines, not by altering the substantive nature of the offenses themselves.
But see, United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (noting "[i]f [the defendant] were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions; he would be subject only to a 30-year (360-month) maximum."); United States v. Adams, 628 F.3d 407, 420 (7th Cir.2010) ("[b]ecause Adams was sentenced before the FSA became law, it does not require him to be resentenced, and so we affirm his sentence"); United States v. Gibbs, 403 Fed.Appx. 82, 83-84, 2010 WL 4723337, at *2 (7th Cir. Nov. 22, 2010) ("at the time he was sentenced there was a statutory minimum of 10 years for persons convicted of distributing 50 grams or more of crack."); United States v. Williams, 413 Fed.Appx. 928, 2011 WL 167073 (8th Cir. Jan. 20, 2011) ("As Williams was sentenced before the Fair Sentencing Act became effective, the district court did not err in imposing the applicable mandatory minimum sentence to his crack offense.").