U.S. v. Dixon

• Decision Date: 09 August 2011
• Docket Number: No. 10–4300.,10–4300.
• Citation: 648 F.3d 195
• Parties: UNITED STATES of Americav.Kenneth DIXON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

648 F.3d 195

UNITED STATES of America

v.Kenneth DIXON, Appellant.

No. 10–4300.

United States Court of Appeals, Third Circuit.

Argued May 24, 2011.Filed: Aug. 9, 2011.

John H. Reed, Selinsgrove, PA, Brett G. Sweitzer, (Argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.William C. Simmers, Office of United States Attorney, Williamsport, PA, Theodore B. Smith, Executive Office of the United States Attorney, Evaluation & Review Staff, Washington, DC, Robert A. Zauzmer, (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.Before: FUENTES, FISHER and NYGAARD, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards. We hold that the FSA does apply in this instance. The language of the Act reveals Congress's intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory. Therefore, we will vacate the judgment of the District Court and remand for resentencing.

I.

From November 2007 until December 2008, Dixon conspired to distribute approximately fifty-one grams of crack cocaine. On March 19, 2010, he pled guilty to conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846, and receipt and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). At the time of Dixon's offense, the Anti–Drug Abuse Act of 1986 (the “1986 Act”) mandated penalties for powder cocaine and crack cocaine according to a 100:1 ratio, creating a pronounced disparity between offenders convicted of possessing crack cocaine and those convicted of possessing powder cocaine. More precisely, a conviction involving five grams of crack cocaine resulted in the same five-year mandatory minimum term of imprisonment as a conviction involving 500 grams of powder cocaine. Similarly, a conviction involving fifty grams of crack cocaine resulted in the same ten-year mandatory minimum term of imprisonment as a conviction for 5,000 grams of powder cocaine. 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (2006).

The initial justification for this difference in treatment—that crack cocaine was more dangerous and addictive than powder cocaine—repeatedly came under attack as the implications of the disparity emerged. See Kimbrough v. United States, 552 U.S. 85, 97–99, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (describing the United States Sentencing Commission's criticism of the 100:1 ratio). This controversy resulted from data suggesting that African–American defendants received disproportionately higher sentences for crack cocaine offenses than white defendants convicted of powder cocaine offenses, even though the drugs were essentially the same substance. See generally Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?, 45 Wash. U.J. Urb. & Contemp. L. 121 (1994). The Sentencing Commission identified major problems with the crack/powder disparity, namely that the assumptions regarding violence and addictiveness were unfounded, that it did not effectively punish major drug traffickers, and that it imposed severe sentences primarily upon African–American offenders. See Kimbrough, 552 U.S. at 98, 128 S.Ct. 558 (summarizing the Sentencing Commission's efforts to alter 100:1 crack/powder disparity).

Prior to Dixon's sentencing hearing, however, Congress passed the FSA, and it became law when the President signed it on August 3, 2010. See Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1151 n. 1 (3d Cir.1989) (“Where no specific effective date is provided, the provision or statute becomes effective upon the date the president signs the bill.”). Congress described the FSA as “[a]n Act To restore fairness to Federal cocaine sentencing.” Fair Sentencing Act of 2010, Pub.L. 111–220, § 2, 124 Stat. 2372, 2372 (2010). The FSA reduced the crack/powder ratio to approximately 18:1. According to the Act, the five-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses twenty-eight grams and the ten-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses 280 grams (the triggers for powder cocaine remain 500 grams and 5,000 grams, respectively). Id.

Recognizing the need to connect the new mandatory minimum penalties with the Sentencing Guidelines, Section 8 of the Act vests the Sentencing Commission with emergency authority to:

(1) 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 ... and

(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.

Id. § 8. New, FSA-compliant, sentencing Guidelines implementing the 18:1 ratio went into effect on November 1, 2010. See Notice of a Temporary, Emergency Amendment to Sentencing Guidelines and Commentary, 75 Fed.Reg. 66,188 (Oct. 27, 2010); U.S.S.G. supp. to app. C, amend. 748 (Supp.2010) (amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010). ¹ Additionally, Congress directed the Sentencing Commission to “study and submit to Congress a report regarding the impact of the changes in Federal sentencing law under this Act[.]” FSA § 10.

Under the 1986 Act, Dixon faced a mandatory minimum of ten years' imprisonment because he possessed more than fifty grams of crack cocaine. If the FSA applied, however, he would be subject to a mandatory minimum of five years' imprisonment. Before the District Court, Dixon argued that the mandatory minimums set forth in the FSA should govern because the Act was in effect on the date of his October 25, 2010 sentencing hearing. The District Court disagreed and concluded, in accordance with the Government's view, that a mandatory minimum term of ten years' imprisonment was required, based on the provisions of the 1986 Act in effect at the time of Dixon's offense conduct. Accordingly, it imposed a sentence of 121 months' imprisonment, followed by five years of supervised release for the drug crime, and a concurrent sentence of 120 months' imprisonment, followed by three years of supervised release for the gun crime.

Dixon filed a timely notice of appeal, arguing that the District Court should have applied the FSA to his sentence. The issue presented by Dixon's appeal is a purely legal one over which we exercise plenary review. See United States v. Reevey, 631 F.3d 110, 112 (3d Cir.2010). Our jurisdictional authority for that review is provided by 28 U.S.C. § 1291 and 18 U.S.C. § 3742. ²

II.

The issue boils down to this: did Congress intend to preserve the mandatory minimum penalties for crack cocaine possession set forth in the 1986 Act that it repudiated in the FSA, or did it intend for Dixon to have the benefit of the ameliorative provisions of the FSA? ³ We conclude that Congress intended the latter. The First and Eleventh Circuits have agreed. See United States v. Vera Rojas, 645 F.3d 1234 (11th Cir.2011); United States v. Douglas, 644 F.3d 39 (1st Cir.2011). The Seventh Circuit has not. United States v. Fisher, 635 F.3d 336 (7th Cir.2011), rehearing and rehearing en banc denied, 646 F.3d 429 (7th Cir.2011).

The general common law rule “requires a court ‘to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.’ ” United States v. Jacobs, 919 F.2d 10, 11 (3d Cir.1990) (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). As a result of the common law rule, once Congress amended a criminal statute (including its penalties), all pending prosecutions—prosecutions that had not yet reached a final judgment in the highest court authorized to review them—were abated. See Bradley v. United States, 410 U.S. 605, 607–08, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). To avoid this result, Congress passed in 1871 what we now call the “general saving statute.” See Act of Feb. 25, 1871, ch. 71, § 4, 16 Stat. 431, 432 (codified as amended at 1 U.S.C. § 109). In its current form, the statute provides in pertinent 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.

1 U.S.C. § 109 (the “Saving Statute”).

Turning to the issue before us, the common law rule mandates that the FSA governs unless the “statutory direction” in this case, the Saving Statute, applies. Stated differently, the mandatory minimum penalties in the 1986 Act are preserved “unless the repealing Act shall so expressly provide[.]” 1 U.S.C. § 109. Notably, the Saving Statute is “a rule of construction ... to be read and construed as a part of all subsequent repealing statutes, in order to give effect to the will and intent of Congress.” Hertz v. Woodman, 218 U.S. 205, 217, 30 S.Ct. 621, 54 L.Ed. 1001 (1910).

At first view, the Saving Statute's “express” statement requirement would appear to doom Dixon's argument, as the FSA does not mention retroactivity. But, the Supreme Court has interpreted the Saving Statute in a more limited manner. The Saving Statute “cannot justify a...