U.S. v. Robinson, 1:10–CR–66.

763 F.Supp.2d 949

UNITED STATES of America

v.Toney ROBINSON.

No. 1:10–CR–66.

United States District Court, E.D. Tennessee.

Feb. 4, 2011.

Christopher D. Poole, U.S. Department of Justice, Chattanooga, TN, for United States of America.Mary Ellen Coleman, Federal Defender Services of Eastern Tennessee, Inc., Trevor F. Atchley, Dietzen and Atchley, Chattanooga, TN, for Toney Robinson.

MEMORANDUM OPINION

CURTIS L. COLLIER, Chief Judge.

Before the Court is a request contained in Defendant Toney Robinson's (“Defendant”) sentencing memorandum wherein he asks the Court to declare that the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372 (2010) (“FSA” or “Act”), is retroactive so that he does not face the mandatory sentence as provided by 21 U.S.C. § 841(b)(1)(B) prior to the enactment of the FSA. Having the benefit of Defendant's and the Government's arguments and having considered the applicable law, the Court GRANTS Defendant's request and holds that the FSA is retroactive and thus Defendant's sentence is governed by the new mandatory minimums set forth in the FSA.

I. FACTS

On August 14, 2009, police officers executed a search warrant on Defendant's residence. In a bedroom they found digital scales, a small amount of crack, a loaded 9 mm handgun, a bag of bullets, and $127. In another bedroom they found a loaded .38 caliber handgun, a 7.62 caliber pistol, and a safe with over $2,000. In a third bedroom they found a large crack cocaine “cookie” drying in front of a fan. Defendant waived his Miranda rights and confessed to possession of the firearms, possession of the crack, and to being a felon. The crack in Defendant's possession totaled 21 grams.

On April 13, 2010, Defendant was indicted on three counts: Count One charged Defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count Two charged Defendant with possession with the intent to distribute five grams or more of crack cocaine (“crack”), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and Count Three charged Defendant with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On July 21, 2010, Defendant pleaded guilty to Counts One and Two.

Pursuant to United States Sentencing Guidelines (“Guidelines”) §§ 3D1.2(c) and 1.3(a), Counts One and Two are grouped together, and the offense level applicable to the group is the offense level for the most serious of the two Counts. Here, Count One is the most serious of the two Counts, setting a total offense level of 23 after applicable upward adjustments and the acceptance of responsibility reduction.¹ Defendant has two criminal history points, which establishes a criminal history category of II. As a 23/II offender, Defendant's Guidelines imprisonment range is 51–63 months.

On the date of the offense conduct giving rise to the charges in this case, 21 U.S.C. § 841(b)(1)(B) required “a term of imprisonment which may not be less than 10 years” for individuals, such as Defendant, who possessed 5 grams or more of crack and have a past felony drug conviction. The FSA, however, raised the mandatory minimum threshold from 5 grams to 28 grams. Thus, if sentenced pursuant to the pre-FSA statute, Defendant would face a mandatory minimum sentence of 10 years. If sentenced pursuant to the FSA, however, Defendant would face no mandatory minimum sentence.

Prior to sentencing, Defendant submitted a memorandum arguing he should be sentenced pursuant to the FSA. At the sentencing hearing held on January 13, 2011, the Court ordered the United States to submit a written response to Defendant's memorandum, and postponed the sentencing hearing for a later date. The United States has since filed a written response brief, and Defendant has filed a reply brief.

II. Background

On August 3, 2010, President Obama signed into law the Fair Sentencing Act of 2010. The preamble of the FSA states it is “[a]n Act [t]o restore fairness to Federal cocaine sentencing.” In large part, the FSA sought to achieve this end by raising the quantities of crack required to trigger various statutory mandatory minimum sentences for crack trafficking. For example, the Act raised the amount of crack required to trigger a 10–year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams. Pub.L. No. 111–220, § 2. Likewise, the Act raised the amount of crack required to trigger a 5–year mandatory minimum under 21 U.S.C. § 841(b)(1)(B)(iii) from 5 grams to 28 grams. Pub. L. No. 111–220, § 2. These new quantity thresholds effectively reduced the statutory “crack-to-powder” sentencing ratio from 100:1 to approximately 18:1.

Additionally, in a section captioned “Emergency Authority for United States Sentencing Commission,” the FSA ordered the United States Sentencing Commission 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,” and to do so within 90 days of the FSA's enactment. Id. at § 8. Following Congress's mandate, the Commission promulgated amended Guidelines reducing the base offense levels for various quantities of crack cocaine. As the Sentencing Commission explained, these reductions were made “to ensure[ ] that 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.” 75 Fed. Reg. 66,188, 66,191 (October 27, 2010).²

The amended Sentencing Guidelines became effective November 1, 2010, and apply to all offenders sentenced after that date, even if those offenders committed their offenses before enactment of the FSA on August 3, 2010. See 18 U.S.C. § 3553(a)(4)(ii) (sentencing courts must consider the guidelines that “are in effect on the date the defendant is sentenced”). However, the FSA itself contains no provision declaring whether its liberalized statutory minimums apply to all sentencings going forward, or only to cases involving criminal conduct occurring after August 3, 2010.³ Hence the dispute presently before this Court. Defendant argues Congress clearly intended the FSA to apply to all sentencings going forward, regardless of the date of offense. The Government argues the FSA's omission of a “retroactivity provision” indicates it is only applicable to criminal conduct occurring after its enactment.

This opinion explains the legal reasoning behind the Court's decision to apply the FSA's new mandatory minimum thresholds to offenders who committed criminal conduct before enactment of the FSA, but who are sentenced afterwards.

III. DISCUSSION

The plain language of the FSA neither compels nor proscribes its retroactive application. See United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (“the [FSA] contains no express statement that it is retroactive nor can we infer any such express intent from its plain language”). The United States argues the absence of such a statement requires the FSA not be applied retroactively. The United States bases this argument in large part upon the general “saving statute” or “saving clause.”

At common law, the repeal of a criminal statute, or its re-enactment with different penalties, “abated all prosecutions which had not reached final disposition in the highest court authorized to review them.” Bradley v. United States, 410 U.S. 605, 607–08, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). To abolish the common-law presumption of abatement, Congress enacted its first general savings provision in 1871. See c. 71, 16 Stat. 432 (1871); see also Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). In 1947, Congress codified the general saving statute at 1 U.S.C. § 109. Section 109 provides, in relevant part:

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.

At first blush, the saving statute's requirement an Act “expressly provide” for retroactivity seems to foreclose retroactive application of the FSA. However, the Supreme Court has interpreted the savings statute's effect more modestly than its strong language might seem to indicate. Over one hundred years ago the Supreme Court explained the savings statute “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.”

Great N. Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567 (1908); see also Marrero, 417 U.S. at 659 n. 10, 94 S.Ct. 2532 (“only if § 1103(a) can be said by fair implication or expressly to conflict with § 109 would there be reason to hold that § 1103(a) superseded § 109”). In other words, saving statute notwithstanding, Congress has the power to make a statute retroactive without the use of “magical passwords,” see Marcello v. Bonds, 349 U.S. 302, 310, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), so long as it clearly signals its intent some other way. See Lockhart v. United States, 546 U.S. 142, 148, 126 S.Ct. 699, 163 L.Ed.2d 557 (2005) (Scalia, J., concurring) (“We have made clear in other cases as well, that an express-reference or express-statement provision cannot nullify the unambiguous import of a subsequent statute.... A subsequent Congress, we have said, may exempt itself from [express statement] requirements by ‘fair implication’—that is, without an express statement.”). Thus, despite no express retroactivity provision in the FSA, if the conclusion Congress intended the Act to apply retroactively arises by fair or necessary implication, the general saving s...