United States v. Augustine, 12-50061
| Decision Date | 03 April 2013 |
| Docket Number | D.C. No. 2:07-cr-00402-AHM-1,No. 12-50061,12-50061 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. YALE AUGUSTINE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted
February 7, 2013—Pasadena, California
Before: Consuelo M. Callahan, Sandra S. Ikuta, and
Opinion by Judge Hurwitz
SUMMARY*
Criminal Law
The panel affirmed the district court's order lowering the defendant's sentence by only one month, to the mandatory minimum under the law in effect at the time of the defendant's sentencing, on the defendant's motion pursuant to 18 U.S.C. § 3582(c)(2).
The panel held that the lower mandatory minimums in the Fair Sentencing Act of 2010, which addressed the inequitable disparity between the sentences prescribed for crack and powder cocaine offenses, do not apply in § 3582(c)(2) proceedings to defendants sentenced before the FSA was enacted.
The panel rejected the defendant's attempts to distinguish United States v. Baptist, 646 F.3d 1225 (9th Cir. 2011) (per curiam), and United States v. Sykes, 658 F.3d 1140 (9th Cir. 2011); and agreed with other circuits that Dorsey v. United States, 132 S. Ct. 2321 (2012), does not require retroactive application of the FSA's mandatory minimums to those sentenced before the Act's passage.
Carlton F. Gunn, Pasadena, California, for Defendant-Appellant.
André Birotte Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney; Jean-Claude André (argued), Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
In the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372, Congress addressed the inequitable disparity between the sentences prescribed for crack and powder cocaine offenses. The question in this case is whether a defendant sentenced for a crack cocaine offense before the FSA was enacted is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2). We hold, consistent with all circuits to have addressed the issue, that the FSA's lowered mandatory minimums are not available to such individuals.
On October 10, 2007, after pleading guilty to distributing 83.2 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii), Yale Augustine was sentenced to 121 months in custody. At the time, the offense carried a mandatory minimum sentence of 120 months, 21 U.S.C. § 841(b)(1)(A) (2006), and the district courtapplied a Sentencing Guidelines range of 121 to 151 months, see U.S.S.G. § 2D1.1 (2006).
"Under the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., and the related Sentencing Guidelines, § 2D1.1, a drug trafficker dealing in crack cocaine at the time of [Augustine's] conviction was subject to the same sentence as one dealing in 100 times as much powder cocaine." United States v. Fields, 699 F.3d 518, 520 (D.C. Cir. 2012), cert. denied, ___ S. Ct. ___, No. 12-8614, 2013 WL 506828, at *1 (Mar. 18, 2013) (citing Kimbrough v. United States, 552 U.S. 85, 91 (2007)). That disparity was created by the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, which was enacted under the assumption "that crack was significantly more dangerous than powder cocaine." Kimbrough, 552 U.S. at 95. Over the years, that assumption and the resulting disparity in mandatory minimum sentences were repeatedly questioned. See id. at 97-100. The Sentencing Commission urged Congress in the 1990s to adopt a 1-to-1 ratio. United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (Feb. 1995), available at http://www.ussc.gov /Legislative_and_Public_Affairs /Congressional_Testimony _and_Reports/Drug_Topics/199502_RtC_Cocaine _Sentencing_Policy/index.htm; United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (April 1997), available at http://www.ussc.gov /Legislative_and_Public_Affairs /Congressional_Testimony_and_Reports/Drug_Topics /19970429_RtC_Cocaine_Sentencing_Policy.PDF (all internet materials last visited Mar. 27, 2013). Later Sentencing Commission reports emphasized that the 100-to-1 disparity "'fosters disrespect for and lack of confidence in the criminal justice system' because of a 'widely-heldperception' that it 'promotes unwarranted disparity based on race.'" Kimbrough, 552 U.S. at 98 (); see also United States Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy (May 2007), available at http://www.ussc.gov/Legislative_and_Public_Affairs /Congressional_Testimony_and_Reports/Drug_Topics /200705_RtC_Cocaine_Sentencing_Policy.pdf.
The FSA, enacted on August 3, 2010, was in part Congress' response to criticism of the extant sentencing scheme; it reduced the crack/powder disparity from 100-to-1 to 18-to-1. Fields, 699 F.3d at 522. The FSA raised the quantity of crack cocaine necessary to trigger a five-year mandatory minimum sentence from 5 to 28 grams and raised the quantity necessary to trigger a ten-year mandatory minimum sentence from 50 to 280 grams. Pub. L. No. 111-220 § 2(a), 124 Stat. 2372 ( 21 U.S.C. § 841(b)(1)).
The FSA gave the Sentencing Commission emergency authority to amend the Sentencing Guidelines to bring them in line with the new statutory penalties. Id. § 8, 124 Stat. 2374. Pursuant to that authority, the Commission promulgated Amendment 748, which lowered the offense levels for crack cocaine offenses in the drug quantity table of Guidelines § 2D1.1(c). U.S.S.G. App. C, amend. 748 (Nov. 2010). Amendment 748 became effective November 1, 2010, but did not apply retroactively. Id. Amendment 750 made the emergency changes to § 2D1.1(c) permanent as of November 1, 2011. U.S.S.G. App. C, amend. 750 (Nov. 2011). Amendment 759 also made those changes retroactive. U.S.S.G. App. C., amend. 759 (Nov. 2011); U.S.S.G. § 1B1.10(c) ().
On December 22, 2011, Augustine filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2), a generally applicable statute pre-dating the FSA, allows a reduction of sentence "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Augustine noted that the FSA had lowered the mandatory minimum for distributing 83.2 grams of crack cocaine to 60 months, and that the applicable Guidelines range had been lowered to 70 to 87 months. See 21 U.S.C. § 841(b)(1)(B)(iii); U.S.S.G. § 2D1.1. Augustine requested that the district court reduce his sentence to 70 months.
The district court instead lowered Augustine's sentence by only one month, to 120 months, the mandatory minimum under the law in effect at the time of Augustine's sentencing. The court expressed regret that it could not lower the sentence further, but determined that the FSA did not apply retroactively. This appeal addresses that legal conclusion, which we review de novo. United States v. Paulk, 569 F.3d 1094, 1094-95 (9th Cir. 2009) (per curiam).
We have twice before confronted the application of the FSA's reduced mandatory minimums to defendants sentenced before the statute was enacted. See United States v. Baptist, 646 F.3d 1225 (9th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1053 (2012); United States v. Sykes, 658 F.3d 1140 (9th Cir. 2011). In Baptist, we held that the new mandatory minimums did not apply to a defendant whose appeal was pending when the FSA became effective, because both the relevant conduct and sentencing occurred before that date. 646 F.3d at 1227. In reaching that conclusion, we relied on the General Savings Statute, 1 U.S.C. § 109, which 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.
We noted that "[t]he Supreme Court has held that the General Savings Statute operates to prevent the retroactive application of an ameliorative statute like the Fair Sentencing Act, absent an expression of congressional intention to apply it to pre-enactment conduct." Baptist, 646 F.3d at 1227 (citing Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974)). We found no such intent expressed in the FSA,agreeing with every other circuit to have considered the question. Id. at 1229 (collecting cases).
Augustine attempts to distinguish Baptist because it involved a direct appeal rather than review of denial of a § 3582(c)(2) motion. This argument, however, founders on Sykes.
Like Augustine, Sykes pleaded guilty to distribution of at least 50 grams of crack cocaine and was sentenced to 121 months in custody before the FSA became effective. Sykes, 658 F.3d at 1142-43. The Guidelines range at the time of Sykes' sentencing was the same one Augustine faced - 121 to 151 months - and the applicable mandatory minimum 120 months. Id. at 1143. After the Sentencing Commission lowered the applicable Guidelines range to 97 to 121 months in 2007 through Amendment 706, Sykes filed a § 3582(c)(2) motion. Id. at 1143-44. The district court, acting two days after the FSA was enacted, reduced Sykes' sentence to 120 months, but refused to lower the...
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