U.S. v. Young, Case No. 10–20148.

• Decision Date: 18 March 2011
• Docket Number: Case No. 10–20148.
• Citation: 782 F.Supp.2d 450
• Parties: UNITED STATES of America, Plaintiff,v.Jesse Albert YOUNG, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

782 F.Supp.2d 450

UNITED STATES of America, Plaintiff,

v.Jesse Albert YOUNG, Defendant.

Case No. 10–20148.

United States District Court,E.D. Michigan,Southern Division.

March 18, 2011.

Susan E. Gillooly, U.S. Attorney's Office, Detroit, MI, for Plaintiff.Federal Defender, Federal Defender Office, Detroit, MI, for Defendant.

OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTION NUMBER 3 AND DETERMINING FAIR SENTENCING ACT NOT RETROACTIVE

ROBERT H. CLELAND, District Judge.

The matter is before the court for the sentencing of Defendant Jesse Albert Young following his guilty plea pursuant to an agreement under Federal Rule of Criminal Procedure 11. Defendant has filed two sentencing memoranda raising a total of three objections, and the Government has filed two memoranda in response. A sentencing is currently set for April 14, 2011. This order resolves Defendant's Objection Number 3, related to the application of the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 2372 (the “FSA”). Specifically, Defendant argues in his objection that the presentence investigative report should have applied the FSA's minimum sentence, rather than the mandatory minimum in place prior to the date the FSA was enacted. For the reasons stated below, the court finds that the FSA does not apply to persons in Defendant's position, that is, those who committed their offense prior to the enaction of the FSA. Accordingly, Defendant's Objection Number 3 will be overruled.

I. INTRODUCTION

The FSA was signed into law on August 3, 2010. The question of whether defendants who had not yet been sentenced as of August 3, 2010 should have the benefit of the FSA has proven controversial in judicial and academic circles, and a substantial number of district courts have taken opposing views on the issue. Some district courts have found the FSA to apply retroactively to defendants who committed offenses under the pre-FSA regime but were sentenced post-FSA. See, e.g., United States v. Douglas, 746 F.Supp.2d 220 (D.Me.2010); United States v. Holloman, 765 F.Supp.2d 1087, 2011 WL 607121 (C.D.Ill. Feb. 18, 2011). Others have disagreed and found the FSA not to apply retroactively. See, e.g., United States v. Santana, 761 F.Supp.2d 131, 2011 WL 260744 (S.D.N.Y. Jan. 20, 2011); United States v. Lightfoot, No. 3:10CR42–HEH, 2010 WL 5300890 (E.D.Va. Dec. 22, 2010). In this district, the three judges who have ruled on the issue have all found that the FSA is not retroactive, viz. it does not apply to defendants who had committed the offense but not been sentenced prior to August 3, 2010. See United States v. Reddick, 10–20064, 2011 WL 768306 (E.D.Mich. Feb. 28, 2011) (Cook, J.); United States v. Franklin, No. 10–20467, 2011 WL 346085 (E.D.Mich. Feb. 3, 2011) (Ludington, J.); United States v. Watson, No. 10–30323, 2010 WL 3272934 at *3 n. 1 (E.D.Mich. Aug. 12, 2010) (Murphy, J.). For the reasons stated below, the court now joins other judges of this district, and finds that the FSA is not retroactive.

II. DISCUSSION

Appellate courts are in uniform agreement that the FSA is not retroactive with respect to defendants that had already been sentenced as of the date the law was passed. United States v. Carradine, 621 F.3d 575 (6th Cir.2010); United States v. Doggins, 633 F.3d 379 (5th Cir.2011); United States v. Diaz, 627 F.3d 930 (2d Cir.2010); United States v. Reevey, 631 F.3d 110 (3d Cir.2010); United States v. Wilson, 401 Fed.Appx. 760 (4th Cir.2010); United States v. Hall, 403 Fed.Appx. 214 (9th Cir.2010); United States v. Lewis, 625 F.3d 1224 (10th Cir.2010); United States v. Brewer, 624 F.3d 900 (8th Cir.2010); United States v. Bell, 624 F.3d 803 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343 (11th Cir.2010) (per curiam); see United States v. Williams, 630 F.3d 44, 52 (1st Cir.2010) (“Other courts to consider the issue have reasoned that the statutory changes wrought by the Fair Sentencing Act do not have retroactive effect and thus would not benefit a defendant in Williams's position, although that remains for now an open question in this circuit.”).

The appellate courts have reached this result using largely identical reasoning. In 1871, Congress passed the “general savings statute” or “Savings Clause,” later codified at 1 U.S.C. § 109, to abrogate the common-law rule that a reduction in penalty would abate all criminal prosecutions not yet final. Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); United States v. Douglas, 746 F.Supp.2d 220, 224–25 (D.Me.2010). The general savings statute 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 expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute 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. Applying this statute to the FSA, courts have concluded that, because the FSA “release[s] or extinguish[es] any penalty,” and because it does not “expressly provide” for its retroactivity, a defendant who “incurred” liability—committed an offense—under the pre-FSA regime “shall be treated” as if the old penalty “still remain[ed] in force.”

The Seventh Circuit recently became the first court of appeals to decide the question of whether the FSA applies to a defendant whose offense was committed prior to August 3, 2010, but who had not been sentenced as of that date, finding that it does not. See United States v. Fisher, 635 F.3d 336 (7th Cir.2011).

Although other circuits have yet to address this precise set of facts, they have spoken with respect to defendants who had been sentenced as of August 3, 2010, but had not yet concluded their direct appeals.

In Carradine, an oft-cited opinion by other circuits considering the retroactivity issue, the Sixth Circuit found that, in the absence of express language in the FSA providing for retroactive application, the general savings statute required the court to apply the penalty in place at the time the offense was committed. 621 F.3d at 580; cf. United States v. Hughes, 369 F.3d 941, 943–45 (6th Cir.2004) (holding § 109 avoided release or extinguishment of penalty of 18 U.S.C. § 641, which was amended after offense was committed and before sentencing), vacated on other grounds, 543 U.S. 1108, 125 S.Ct. 1042, 160 L.Ed.2d 1032 (2005). Similarly, in Gomes, the Eleventh Circuit found that “because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment.” 621 F.3d at 1346 (emphasis added). Still, other circuits that have adjudicated the retroactive application of the FSA with regard to defendants already sentenced have been more reluctant to take up prematurely the question of its application to defendants who have yet to be sentenced. See Reevey, 631 F.3d at 115 n. 5 (distinguishing cases where defendant was sentenced prior to FSA enactment from those where defendant was sentenced after it took effect); Lewis, 625 F.3d at 1228 (“[D]efendants being sentenced henceforth will be sentenced under a different applicable ratio.”).

The Government asserts that Carradine controls, but some courts in this circuit have found that the language of Carradine constitutes non-binding dicta and that the FSA applies retroactively to defendants who had not yet been sentenced when the FSA was enacted. United States v. Robinson, 763 F.Supp.2d 949, 954–55, 2011 WL 379536, at *5 (E.D.Tenn. Feb. 4, 2011); United States v. Jones, No. 10–cr–00233, at 3 (N.D.Ohio Jan. 3, 2011); United States v. Gillam, 753 F.Supp.2d 683 (W.D.Mich.2010). In order to determine whether Carradine is binding on this court, the court looks to the holding of Carradine itself, and how it applies to the facts of this case.

Carradine held that the FSA is not retroactive with respect to a defendant who had already been sentenced, but whose appeal was pending, as of the date the law was passed. United States v. Carradine, 621 F.3d 575 (6th Cir.2010). Carradine so held because “[t]he ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application.” 621 F.3d at 580 (emphasis added). Carradine stated that the FSA “contains no express statement that it is retroactive nor can we infer any such express intent from its plain language.” Id. As Carradine dealt with a case where the defendant had already been sentenced but had a pending appeal when the FSA was enacted, the court must determine whether this language constitutes dicta with respect to a case such as that before the court, where Defendant had not yet been sentenced when the FSA was enacted. For the court to reach the conclusion that the language of Carradine represents dicta in the instant case, it must necessarily determine that Congress did not intend the FSA to apply to those defendants who had committed their crimes prior to August 3, 2010, but whose appeals were not final, while simultaneously finding that Congress did intend the reduced penalties of the FSA to apply to those offenders who, even though they committed their crimes prior to August 3, 2010, were not sentenced until after that date. The court would need to conclude that the FSA is partially retroactive before it could determine whether the question of partial retroactivity has already been foreclosed by...