U.S. v. Holcomb

• Decision Date: 24 August 2011
• Docket Number: 11–1758.,11–1559,Nos. 11–1558,11–1586,s. 11–1558
• Citation: 657 F.3d 445
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Christopher HOLCOMB, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

657 F.3d 445

UNITED STATES of America, Plaintiff–Appellant,

v.Christopher HOLCOMB, et al., Defendants–Appellees.

Nos. 11–1558

11–1559

11–1586

11–1758.

United States Court of Appeals, Seventh Circuit.

Aug. 24, 2011.

OPINION TEXT STARTS HEREAppeals from the United States District Court for the Central District of Illinois. Nos. 3:10–cr–30058–RM–BGC et al.—Richard Mills, Judge.Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellant in No. 11–1558.Timothy A. Bass, Joseph H. Hartzler, Attorneys, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellant in Nos. 11–1559 and 11–1758.Jason M. Bohm, Joseph H. Hartzler, Attorneys, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellant in No. 11–1586.Daniel T. Hansmeier, Thomas G. Wilmouth, Attorneys, Office of the Federal Public Defender, Springfield, IL, for Defendants–Appellees in Nos. 11–1558 and 11–1559.Jerry Boykin, Attorney, Law Office of Jerry Boykin, Atlanta, GA, for Defendant–Appellee in No. 11–1586.J. Randall Cox, Attorney, Feldman, Wasser, Draper & Benson, Springfield, IL, for Defendant–Appellee in No. 11–1758.Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

A member of this court called for a vote on the question whether these four appeals should be heard en banc on the court's own initiative. A majority of the active judges did not vote in favor of rehearing en banc, and the proposal therefore fails. Petitions for rehearing or rehearing en banc will not be accepted; this decision is the court's final judgment. Three members of the court have written opinions explaining their votes.

EASTERBROOK, Chief Judge, with whom FLAUM, KANNE, SYKES, and TINDER, Circuit Judges, join.

These four appeals were filed by the United States with the Solicitor General's authorization. Eight days after the United States prevailed, the prosecutor filed a document styled “Notice of Changed Position” announcing that the Attorney General disagrees with this court (and apparently with the Solicitor General too). The “Notice of Changed Position” does not ask us to do anything in particular, but some members of the court believe that we should grant rehearing en banc and overrule United States v. Fisher, 635 F.3d 336 (7th Cir.2011), which led our panel to decide these four appeals in the prosecutor's favor. I am content to leave Fisher undisturbed.

The Attorney General's “Memorandum for all Federal Prosecutors”, dated July 15, 2011, directs United States Attorneys to argue that the Fair Sentencing Act of 2010, Pub.L. 111–220, 124 Stat. 2372 (2010), applies to all criminal prosecutions in which sentence was imposed on or after August 3, 2010, the day the President signed the bill. The Memorandum also directs United States Attorneys to argue that the 2010 Act does not apply to cases in which sentence was pronounced on August 2, 2010, or earlier, even if they were pending in the district court or appeal on August 3. In other words, the Attorney General has concluded that the 2010 Act is partially retroactive.

As far as I am aware, the Supreme Court has never held any change in a criminal penalty to be partially retroactive. The choice always has been binary: retroactive or prospective. And what makes application “retroactive” is a change in the legal consequences of activity that predates the new law's enactment. See generally Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which discusses what it means for application of a new statute to be retroactive, and the two exceptions to the presumption against retroactivity: new procedural rules and new jurisdictional requirements. The 2010 Act does not affect judicial procedure; it changes the penalty for criminal conduct. And it does not affect jurisdiction.

The common law distinguished increases in criminal punishments from reductions or repeals. Any law that repealed a criminal statute or reduced the defendant's punishment was fully retroactive, while in light of the Constitution's Ex Post Facto Clause a law creating a crime or increasing criminal punishment could apply only to conduct that occurred after the law changed. But in 1871 Congress enacted the General Saving Statute, now codified as 1 U.S.C. § 109, which makes all changes prospective unless the new statute provides otherwise. Warden v. Marrero, 417 U.S. 653, 659–61, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), discusses this history. Section 109 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.

Defendants argued that § 109 is irrelevant to the 2010 Act, because it reduces rather than “repeals” the penalties for crack cocaine. They also contended that a criminal does not “incur” a punishment until sentenced. Every circuit has concluded, to the contrary, that a law reducing criminal punishment is a repeal of the old statute and the enactment of a new one for the purpose of § 109, and that a punishment is incurred when the crime is committed. Marrero supports both of these conclusions. Our precedent is United States v. Bell, 624 F.3d 803, 814–15 (7th Cir.2010), which holds that § 109 makes the 2010 Act prospective, because it lacks an express declaration of retroactivity. A footnote collects other circuits' equivalent decisions. ^†

Bell and the other circuits rejected arguments for retroactivity made by defendants whose appeals were pending on August 3, 2010. That's why courts could decide the question so quickly. A second wave of defendants, those sentenced on or after August 3, 2010, asked for partial retroactivity. Our circuit was the first to consider that possibility. The panel in Fisher rejected the argument that the date of sentencing matters. If the 2010 Act is retroactive, then it applies to all pending cases no matter how far they have got in the judicial system; if it is not retroactive, then it applies only to crimes committed on or after August 3, 2010. Nothing depends on the sentencing date, which reflects how long it took to catch a criminal, and the state of the district judge's calendar, rather than principles of deterrence or desert. Section 109 says that the former law “shall be treated as still remaining in force” for pre-amendment conduct. If the old law is “treated as still remaining in force”, the new law can't be applied to persons newly sentenced for pre-amendment crimes; § 109 forecloses partial retroactivity.

United States v. Douglas, 644 F.3d 39 (1st Cir.2011), reached a contrary conclusion, apparently unaware that it was creating a conflict with Fisher, which had been issued 20 days earlier. Douglas held that the new minimum and maximum sentences take effect for defendants sentenced on and after November 1, 2010. (I'll come back to the source of that date.) United States v. Rojas, 645 F.3d 1234 (11th Cir.2011), then misread Douglas as holding that the new rules take effect with sentencing on and after August 3, 2010, and applied that transition date. (Rojas was sentenced on August 3 and would not have been eligible for a lower sentence under Douglas.) On July 7 our panel in Holcomb remanded four cases with instructions to apply Bell and Fisher. And on July 15 the Attorney General issued his memorandum agreeing with Rojas. That led to the United States Attorney's “Notice of Changed Position” in the four appeals this circuit had decided on July 7. Then United States v. Dixon, 648 F.3d 195 (3d Cir.2011), followed Rojas without explaining why it chose August 3 rather than November 1 as the transition date. Most recently, United States v. Sidney, 648 F.3d 904 (8th Cir.2011), agreed with Fisher and concluded that § 109 does not permit partial retroactivity.

When the Executive Branch confesses error, this circuit gives respectful consideration to the rationale for the new position. A recent example is United States v. Corner, 598 F.3d 411 (7th Cir.2010) (en banc), which overruled several of the circuit's decisions after the Solicitor General filed a brief carefully explaining where the circuit had gone wrong. That explanation carried the day; Corner was unanimous. Unfortunately, the Attorney General's “Memorandum for all Federal Prosecutors” lacks the sort of analysis that was so helpful in Corner. The Memorandum does not discuss § 109 or the language of the 2010 Act. It does not explain why partial retroactivity is appropriate—or why the transition should depend on the date of sentencing rather than some other event, such as a guilty plea or appeal. The Attorney General does quote from the caption of S. 1789, which describes the proposal as “A bill to restore fairness to Federal criminal sentencing”, but this language precedes the enacting clause and is not part of the United States Code. It also is unhelpful in evaluating a proposal for retroactive application. Every law lowering sentences expresses a legislative conclusion that sentences had been excessive. The common law responded by applying penalty reductions retroactively. But § 109 provides otherwise. The observation that Congress, the President, and many federal judges think the former rules excessively severe does not distinguish the 2010 Act from any other law reducing sentences and does not justify disregarding the anti-retroactivity norm created by § 109.

Douglas asked what reason there could be to continue imposing sentences that the 2010 Act condemns as excessive. The same question could be asked about every other law that reduces criminal sentences. The answer must be that § 109 itself supplies the reason. It tells us that statutory lenience does not reduce...