U.S. v. Douglas, 10–2341.

• Decision Date: 31 May 2011
• Docket Number: No. 10–2341.,10–2341.
• Citation: 644 F.3d 39
• Parties: UNITED STATES of America, Appellant,v.William DOUGLAS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

644 F.3d 39

UNITED STATES of America, Appellant,

v.William DOUGLAS, Defendant, Appellee.

No. 10–2341.

United States Court of Appeals, First Circuit.

Heard May 18, 2011.Decided May 31, 2011.

Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief for appellant.David Beneman, Federal Defender, for appellee.Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, on brief for the Federal Public Defender for the Districts of Massachusetts, New Hampshire and Rhode Island, Amicus Curiae.Before BOUDIN, STAHL and HOWARD, Circuit Judges.BOUDIN, Circuit Judge.

In 2009, William Douglas and a co-conspirator engaged in a number of sales of cocaine base to an undercover agent in different locations in Maine. Thereafter, Douglas pled guilty to a one-count information charging him with conspiracy to distribute and to possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (2006).¹ Over the government's objection, the district court ruled in substance that the reduced mandatory minimums adopted by the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 2372 (the “FSA”), governed Douglas' sentence, and the government now appeals.

A chronology helps to set the stage. Douglas' crime comprised acts occurring at various times in 2009. Douglas' guilty plea occurred on January 11, 2010. The President signed the FSA and it went into effect on August 3, 2010. Among other changes, the new statute reduced in certain instances the mandatory minimum prison terms prescribed under prior law for violations involving cocaine base; it did so by increasing the drug quantity thresholds required to trigger the specific mandatory minimums. Implicitly, it altered the ratio between those mandatory minimums and the lesser ones prescribed for cocaine powder violations.

The old ratio was 100:1 and thus the five-year mandatory minimum was triggered for 5 grams of cocaine base or 500 grams of cocaine powder; the ten-year minimum was for 50 grams of cocaine base or 5 kilograms of powder. 21 U.S.C. § 841(b)(1)(A)(ii)–(iii), (b)(1)(B)(ii)–(iii) (amended 2010). The new statute triggered a five-year minimum for 28 grams of cocaine base (leaving powder at 500 grams) and a ten-year minimum for 280 grams of cocaine base (leaving powder at 5 kilograms). FSA § 2(a), 124 Stat. at 2372 (amending 21 U.S.C. § 841(b)(1)). In sum, the new minimums treat cocaine base more harshly than powder at a ratio of about 18:1 (500 divided by 28 is roughly 17.86).

Sentences for federal crimes ordinarily begin with calculations made pursuant to the federal sentencing guidelines that contain—along with other instructions—an elaborate table equating quantities of different drugs with different base offense levels. See United States v. Jiménez–Beltre, 440 F.3d 514, 518–19 (1st Cir.2006) (en banc) (process); U.S.S.G. § 2D1.1(c) (2010) (table). When Congress first adopted mandatory minimums distinguishing between cocaine base and cocaine powder on the 100:1 basis, the Sentencing Commission guidelines also employed the 100:1 ratio, although the ratio fell somewhat after 2007 guidelines amendments. See Unfairness in Federal Cocaine Sentencing: Hearing on H.R. 1459, H.R. 1466, H.R. 265, H.R. 2178 and H.R. 18 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 47 (2009) (prepared statement of Hon. Ricardo H. Hinojosa, Acting Chair, U.S. Sentencing Commission).

The FSA did not amend the guidelines—a task ordinarily left to the Commission subject to congressional veto. Rather, the FSA directed the Commission to adopt new guidelines conforming to the new statute, FSA § 8, 124 Stat. at 2374 (to be codified at 28 U.S.C. § 994 note), evidently intending that the Commission, along with other changes, adjust its guidelines ranges for cocaine base to match the new 18:1 ratio. See Unfairness in Federal Cocaine Sentencing, supra, at 61.

The FSA directed the Commission to adopt these conforming guidelines on an emergency basis no later than November 1, 2010. FSA § 8, 124 Stat. at 2374. Consistent with what Congress expected, e.g., 156 Cong. Rec. H6197 (daily ed. July 28, 2010) (statement of Rep. Robert Scott); 156 Cong. Rec. S1680–81 (daily ed. Mar. 17, 2010) (statement of Sen. Richard Durbin), the Commission did adjust its guidelines table to correspond to the 18:1 ratio. The amendments took effect on November 1, 2010, significantly reducing the base offense levels for specific quantities of cocaine base.²

In the period prior to November 1, 2010, the government and Douglas had been debating in the district court about the framework for determining his sentence. Under the mandatory minimums in effect at the time of Douglas' criminal acts in 2009, 50 grams or more of cocaine base triggered a mandatory minimum of ten years; but the district court contemplated a sentencing after November 1, when the guidelines table adjustments would create a base guidelines range for Douglas' quantity of cocaine base of only 78–97 months (which could be altered by other guidelines considerations).

By their own terms, guidelines changes are automatically retroactive in one limited sense: defendants, including those who committed their offense when prior guidelines were in effect, are sentenced under the edition of the guidelines in force at the time of sentencing (unless the new guidelines increase the sentence and raise ex post facto concerns). 18 U.S.C. § 3553(a)(4) (2006); U.S.S.G. § 1B1.11; United States v. Tejada–Beltran, 50 F.3d 105, 108 n. 3 (1st Cir.1995). As Douglas was to be sentenced after November 1, he sought the benefit of the new, lower guidelines shortly to come into force on that date.

On October 27, 2010, the district court concluded that Congress intended the new guidelines provisions to control from November 1 forward but also—and this is the heart of the dispute now before us—that by implication Congress intended the new mandatory minimums based on the same 18:1 ratio to supersede the higher mandatory minimums in effect in 2009 when Douglas' crime was committed. United States v. Douglas, 746 F.Supp.2d 220, 231 (D.Me.2010). On November 8, the court sentenced Douglas to 56 months in prison rather than to the ten-year mandatory minimum set by the pre-FSA drug statute. The government now appeals from the final judgment. Because this same issue will arise in many cases now pending, we expedited review.

The central issue presented is one of law reviewed de novo on appeal. The FSA does not address retroactivity questions at all and Congress, by inadvertence or design, may not have addressed the matter. See In re Grand Jury, 640 F.3d 385, 386–87 (1st Cir.2011). However, while the FSA itself does not expressly address retroactivity, a federal savings statute, 1 U.S.C. § 109 (2006), sets a general default rule where one statute supersedes another, providing in part that

[t]he 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.

Because “incurred” means “to which one is subject,” United States v. Goncalves, 642 F.3d 245, 252 (1st Cir.2011), Douglas when he committed the criminal acts in 2009 became liable to the mandatory minimums then in effect unless in some fashion the FSA itself altered the calculus. Goncalves explained that—putting aside Congress' direction that new guidelines be promulgated—the FSA does not qualify the general rule of section 109, a position widely adopted in other circuits. Id. at 253–55. But, as Goncalves was sentenced before November 1, 2010, we reserved there the issue that is now before us. Id. at 252 n. 5.

The decisions of other circuits do not by clear holdings decide the issue presented in this case.³ The government says that section 109 subjects Douglas to the mandatory minimum that applied when his crime was committed because the FSA does not “expressly provide” otherwise and that the reduced guidelines ranges that became effective on November 1, 2010, are themselves superseded as to Douglas because the applicable mandatory minimum overrides the guidelines. See U.S.S.G. § 5G1.1(b); United States v. Sepulveda, 15 F.3d 1161, 1202 (1st Cir.1993), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994).

The Maine district judge in this case, now joined by a Massachusetts district judge, Watts, 775 F.Supp.2d 263, 2011 WL 1282542, came to the opposite conclusion as to sentencings that occur on or after November 1, 2010. Their reasoning is that Congress intended that when the new guidelines embodying the 18:1 ratio came into effect, defendants would be sentenced under the new guidelines, and use of the pre-FSA mandatory minimums with the 100:1 ratio would defeat this intention. By contrast, use of the new mandatory minimums, set at the 18:1 ratio, creates no such conflict because they are generally aligned with the new guidelines table.

The Supreme Court has already held that the “express” language requirement does not require an explicit reference to section 109 or a special retroactivity provision. Thus, the savings statute may be overridden “either by express declaration or necessary implication,” Great N. Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567 (1908), or when a new statute “can be said by fair implication or expressly to conflict with § 109,” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 659 n. 10, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). No “magical passwords” are required. Marcello v. Bonds, 349 U.S. 302, 310, 75 S.Ct. 757, 99 L.Ed. 1107 (1955).

Certainly Congress...