U.S. v. Jermaine Laron Sidney

• Decision Date: 10 August 2011
• Docket Number: No. 11–1216.,11–1216.
• Parties: UNITED STATES of America, Appellee,v.Jermaine Laron SIDNEY, also known as Jizzle, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

648 F.3d 904

UNITED STATES of America, Appellee,

v.Jermaine Laron SIDNEY, also known as Jizzle, Appellant.

No. 11–1216.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Aug. 10, 2011.

David R. Stickman, AFPD, argued, Omaha, NE, for appellant.Janice Lipovsky, AUSA, argued, Lincoln, NE, for appellee.Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and LIMBAUGH, ¹ District Judge.LIMBAUGH, District Judge.

This case presents a variation on a theme from a series of recent cases all holding that the Fair Sentencing Act of 2010 (FSA), which increased the threshold amounts necessary to trigger mandatory minimum sentences in crack cocaine cases, is not retroactive. The published cases alone include United States v. Brewer, 624 F.3d 900, 909–10 n. 7 (8th Cir.2010); United States v. Spires, 628 F.3d 1049, 1055 (8th Cir.2011); United States v. Finch, 630 F.3d 1057, 1063 (8th Cir.2011); United States v. Smith, 632 F.3d 1043, 1047–49 (8th Cir.2011), United States v. Neadeau, 639 F.3d 453, 456 (8th Cir.2011); and United States v. Woods, 642 F.3d 640, 644–45 (8th Cir.2011). The variation here, as we understand defendant's argument, is that he should have been allowed to withdraw his plea of guilty for the reason that the change in the penalty provisions for his offense constitutes a “fair and just reason for requesting the withdrawal” as provided under Federal Rule of Criminal Procedure 11(d)(2)(B). Because this argument ultimately depends on whether the FSA is retroactive, and because this Court has definitively determined that it is not retroactive, the judgment is affirmed.

The charge to which defendant pleaded guilty was possession with intent to distribute 50 grams or more of crack cocaine on or about March 12, 2009, in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and the plea was entered pursuant to a plea agreement on December 11, 2009. Then, months later, on August 3, 2010, the FSA was signed into law, Pub.L. No. 111–220, 124 Stat. 2372 (Aug. 3, 2010), which, inter alia, increased the quantity of crack cocaine required to impose the mandatory minimum sentence of ten years from 50 grams to 280 grams, 21 U.S.C. § 841(b)(1)(A)(ii)-(iii), (B)(ii)-(iii). On January 13, 2011, more than a year after the plea was entered, and after several continuances at defendant's behest (all designed to delay the sentencing until after enactment and implementation of the FSA), the trial court ² overruled defendant's motion to withdraw his plea of guilty and sentenced him to the mandatory minimum of 120 months imprisonment.

At the outset, defendant acknowledges that this Court “appears to have held that the general Federal Savings Statute bars the retroactive application of the FSA.” He also agrees “that if the FSA does not apply to him there was no error in denying his motion to withdraw his guilty plea.” The savings statute, 1 U.S.C. § 109, states:

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 ... such penalty, forfeiture, or liability.

As this Court held in Brewer, “... the Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed.” United States v. Brewer, 624 F.3d at 909 n. 7.; United States v. Smith, 632 F.3d at 1047. This holding notwithstanding, defendant claims that his case is different because unlike the defendants in Brewer and Smith, who were sentenced before the FSA was passed, he was sentenced after the FSA was passed. He explains that because he “was in the pipeline pending sentencing ... he [should] be sentenced under the law in effect at the time he was sentenced.” Since the briefing, however, this Court has ruled in other cases that the timing of the sentence is immaterial, and that the controlling factor is the date on which the crime was committed. And accordingly, the defendants in those cases suffered no prejudice by the denial of continuances that would have postponed their sentencing dates until after the passage of the FSA and the implementation of new Sentencing Guidelines. See United States v. Woods, 642 F.3d 640, 644–45 (8th Cir.2011); United States v. Hawthorne, 414 Fed.Appx. 879, 880–81 (8th Cir.2011) (per curiam); United States v. McBride, No. 10–2689, 426 Fed.Appx. 471, ––––, 2011 WL 2206725, at *2 (8th Cir. June 8, 2011) (per curiam). Nonetheless, defendant offers several other arguments in favor of the retroactive application of the FSA, and in turn, the propriety of this motion to withdraw his plea.

First, he claims that the charge to which he pleaded guilty “does not state a valid offense after the passage of the Fair Sentencing Act” in that “A charge of possession with intent to distribute 50 grams or more of cocaine base states an entirely different offense with entirely different penalties than possession with intent to distribute more than 280 grams or more of cocaine base.” By this we think that defendant is claiming that the offense has been changed altogether—not just the penalty provision alone so that the savings statute, which applies to penalties only, would not be implicated. In any event, this Court disagrees. There is only one offense for possessing with intent to distribute crack cocaine, and the FSA has merely changed the quantities of crack cocaine that set the levels of punishment for the offense. See United States v. Moss, 252 F.3d 993, 1002 (8th Cir.2001) (“Congress intended drug quantity to be a sentencing consideration, not an element of the offense.”)

Next, defendant argues, somewhat amorphously, that “The offense to which he pled guilty no longer serves a valid legislative purpose.” In support, he cites Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964), for the proposition that “The Supreme Court imputes to Congress ‘an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive.’ ” This argument, however, was later rejected in Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), the most recent case in which the Supreme Court analyzed the general savings clause. Despite acknowledging the “ameliorative” effect of the repeal to defendants whose crimes were committed after the repeal of a federal drug statute that barred parole to a defendant sentenced and imprisoned before the repeal, Marrero, nonetheless, held that the savings clause precluded retroactive application of the repeal. Id. at 657–64, 94 S.Ct. 2532.

On this same point, defendant cites United States v. Douglas, 746 F.Supp.2d 220 (D.Me.2010), and several district court cases that relied on Douglas, all of which held that failure to apply the new mandatory minimums to all defendants who are sentenced after the enactment of the FSA is contrary to Congressional intent. See, e.g., United States v. English, 757 F.Supp.2d 900 (S.D.Iowa 2010); United States v. Whitfield, No. 2:10CR13, 2010 WL 5387701, at *2 (N.D.Miss. Dec. 21, 2010); United States v. Gillam, 753 F.Supp.2d 683 (W.D.Mich.2010). Douglas and its progeny base this position, in large part, on the fact that the FSA mandated that the Sentencing Commission “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act,” Pub.L. 111–220 § 8, 124 Stat. 2372, 2374. Notably, the Sentencing Commission has included in its amendments that the new Guidelines are retroactive such that the new Guidelines apply to all defendants, regardless of the date of their crimes or sentencings. Defendant argues that the inconsistency that would thus be created—defendants whose crimes were committed before the enactment but sentenced after the enactment would be given the benefit of new, reduced Sentencing Guidelines, but not the new, reduced mandatory minimums—cannot have been intended. United States v. Douglas, 746 F.Supp.2d at 229. Defendant concludes that Congress' actions in reducing the penalties for crack cocaine and directing the Sentencing Commission to promulgate Guideline changes on an emergency basis “necessarily implies that the rejected provisions

[the old mandatory

minimums] should no longer have force.”

To be sure, the District Court in Douglas has now been affirmed by the First Circuit, United States v. Douglas, 644 F.3d 39 (1st Cir.2011), with essentially the same analysis, focusing on the “necessary implication” of the Act. The Court ruled that “It seems unrealistic to suppose that Congress strongly desired to put the [reduced] guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted [reduced] mandatory minimums,” surmising that “it is likely that Congress would wish to apply the new minimums to new sentences.” Id. at 44 (emphasis in original); see also United States v. Rojas, 645 F.3d 1234 (11th Cir.2011).

Although the Supreme Court has indeed held that the savings statute may be superseded if that result is compelled either by an express declaration in the new legislation or by the “fair implication” from it, Marrero, 417 U.S. at 659–60, n. 10, 94 S.Ct. 2532 (citing Great Northern R. Co. v. United States, 208 U.S. 452, 465–66, 28 S.Ct. 313, 52 L.Ed. 567 (1908)), it is enough of an answer to defendant's point that this Court has already held in Smith, supra, that no such implication can be gleaned from the FSA. In rejecting the fair or necessary implication argument, this Court explained...