U.S. v. Douglas

• Decision Date: 27 October 2010
• Docket Number: Criminal No. 09–202–P–H.
• Citation: 746 F.Supp.2d 220
• Parties: UNITED STATES of Americav.William DOUGLAS, Defendant.
• Court: U.S. District Court — District of Maine

746 F.Supp.2d 220

UNITED STATES of America

v.William DOUGLAS, Defendant.

Criminal No. 09–202–P–H.

United States District Court, D. Maine.

Oct. 27, 2010.

Michael J. Conley, Office of the United States Attorney, Portland, ME, for United States of America.David R. Beneman, Federal Defender's Office, Portland, ME, for Defendant.

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 1986 ⁵ 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 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.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...