The following information is adapted from the text of an opinion by Curtis L. Collier, USDCJ in the Eastern district of Tennessee:
President Obama signed the Fair Sentencing Act (FSA) into law on August 3, 2010. The preamble of the FSA states it is “[a]n Act [t]o restore fairness to Federal cocaine sentencing.” The FSA seeks to achieve this end by raising the quantities of crack required to trigger various statutory mandatory minimum sentences for crack trafficking. The Justice Department has taken the position that Fair Sentencing Act reductions in mandatory minimum crack sentences should not take effect in prosecutions for conduct before the August 2010 enactment date of the statute. The Department's position is clearly contrary to the intent of Congress but since the Act contains no statement that it applies retroactively or to all pending prosecutions, the Department argues that the "caving clause" of 1 U.S.C. § 109 applies (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….)
The Act has raised the amount of crack required to trigger a 10-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams. Pub. L. No. 111-220, § 2. and raise the amount of crack required to trigger a 5-year mandatory minimum under 21 U.S.C. § 841 (b)(1)(B)(iii) from 5 grams to 28 grams. Additionally, in a section captioned “Emergency Authority for United States Sentencing Commission,” the Act ordered the United States Sentencing Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law,” and to do so within 90 days of the Act’s enactment. Id. at § 8. Following Congress’s mandate, the Commission promulgated amended Guidelines …“to ensure that the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table.”….
The amended Sentencing Guidelines became effective November 1, 2010, and apply to all offenders sentenced after that date, even if those offenders committed their offenses before enactment of the FSA on August 3, 2010. See 18 U.S.C. § 3553(a)(4)(ii) (sentencing courts must consider the guidelines that “are in effect on the date the defendant is sentenced”). …. ….
Many courts are now applying the Act’s new mandatory minimum thresholds to offenders who committed criminal conduct before enactment of the Act, but who are sentenced afterwards. The plain language of the Act neither compels nor proscribes its retroactive application. See United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010) (“the [ACT] contains no express statement that it is retroactive nor can we infer any such express intent from its plain language”). The United States argues the absence of such a statement requires the Act not be applied retroactively. The United States bases this argument in large part upon the general “saving statute” or “saving clause.”
At common law, the repeal of a criminal statute, or its re-enactment with different penalties, “abated all prosecutions which had not reached final disposition in the highest court authorized to review them.” Bradley v. United States, 410 U.S. 605, 607-08 (1973). To abolish the common-law presumption of abatement, Congress enacted its first general savings provision in 1871. See c. 71, 16 Stat. 432 (1871); see also Warden v. Marrero, 417 U.S. 653, 660 (1974). In 1947, Congress codified the general saving statute at 1 U.S.C. § 109. Section 109 provides, in relevant part:
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.
At first blush, the saving statute’s requirement an Act “expressly provide” for retroactivity seems to foreclose retroactive application of the Act. However, the Supreme Court has interpreted the savings statute’s effect more modestly than its strong language might seem to indicate. Over one hundred years ago the Supreme Court explained the savings statute “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908); see also Marrero, 417 U.S. at 659 n.10 (“only if § 1103(a) can be said by fair implication or expressly to conflict with § 109 would there be reason to hold that § 1103(a) superseded § 109"). In other words, saving statute notwithstanding, Congress has the power to make a statute retroactive without the use of “magical passwords,” see Marcello v. Bonds, 349 U.S. 302, 310 (1955), so long as it clearly signals its intent some other way. See Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) (“We have made clear in other cases as well, that an express-reference or express-statement provision cannot nullify the unambiguous import of a subsequent statute. . . . A subsequent Congress, we have said, may exempt itself from [express statement] requirements by ‘fair implication’ — that is, without an express statement.”). Thus, despite no express retroactivity provision in the Act, if the conclusion Congress intended the Act to apply retroactively arises by fair or necessary implication, the general saving statute is no bar to such application.
In the brief period since the Act was enacted, a large number of courts have considered whether Congress intended the Act to apply retroactively to offenders who committed crimes prior to Act’s enactment, but have not yet been sentenced. Overwhelmingly, these courts have concluded the necessary implication of the Act is that Congress intended the Act to apply retroactively. See, e.g., United States v. Douglas, No. 09-202-P-H, 2010 WL 4260221 (D. Me. Oct. 27, 2010); United States v. Gillam, No. 1:10-CR-181-2, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v Jones, No. 4:10-CR-233 (N.D. Ohio, Jan. 3, 2011); United States v. Cox, No. 3:10-CR-85-WMC, 2011 WL 92071 (W.D. Wis. Jan. 11, 2011); United States v. Johnson, No. 6:08-CR-270 (M.D. Fla. Jan. 4, 2011); United States v. English, No. 3:10-CR-53, 2010 WL 5397288 (S.D. Iowa Dec. 30, 2010); United States v. Whitfield, No. 2:10-CR-13, 2010 WL 5387701 (N.D. Miss. Dec. 21, 2010); United States v. Holloway, 3:04-CR-90 (S.D. W. Va. Dec. 20, 2010); United States v. Johnson, No. 3:10-CR-138 (E.D. Va. Dec. 7, 2010); United States v. Favors, No. 10-CR-384-LY-1 (W.D. Tex. Nov. 23, 2010); United States v. Spencer, No. CR 09-00400 JW (N.D. Cal. Nov. 30, 2010); United States v. Shelby, No. 2:09-CR-379 (E.D. La. Nov. 10, 2010).4
The leading opinion in this growing body of cases is that written by Judge D. Brock Hornby in Douglas. Nearly all of the cases cited above draw on Judge Hornby’s thorough analysis of the issue, as does this Court. After dispatching the United States’s argument the saving statute ipso facto applies because the Act does not contain an express retroactivity provision, the Douglas court went on to catalogue the evidence indicating Congress intended the Act to apply retroactively:
There is no saving clause in the Fair Sentencing Act itself. To the contrary, in this statute Congress expressly granted the Commission emergency Guideline amendment authority, so that the Commission could adopt Guideline amendments effective almost immediately. And in addition, Congress expressly directed the Commission to adopt Guideline amendments “as soon as practicable, and in any event not later than 90 days”, i.e., by November 1, 2010. What amendments? To be sure, the new enhancement provisions, but also any changes in the new crack penalty provisions. Where would the latter changes come from? From the new statutory minimum provisions. According to the statutory language, Congress instructed the Commission “pursuant to the emergency authority provided under paragraph (1), [to] make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” The Commission has followed Congress's instructions. Effective November 1, 2010, “the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table.” But the new Guidelines cannot be “conforming” and “achieve consistency” (Congress's express mandate) if they are based upon statutory minimums that cannot be effective to a host of sentences over the next five years until the statute of limitations runs on pre-August 3, 2010 conduct.
What is more, for years the Sentencing Reform Act of 1984 has directed expressly that the governing Guidelines are those in effect on the day a defendant is sentenced. The Guideline commentary refers to this statutory provision as “Congress's directive to apply the sentencing guidelines in effect at the time of sentencing.” Thus, during the past two decades of the Guidelines' existence, whenever the Commission has adopted Guideline amendments, those amendments have applied to all defendants sentenced thereafter, regardless of when the crime was committed. That is what will happen to the new Guidelines' alterations of the base offense levels for various quantities of crack: the new Guidelines will apply to all future sentencings after November 1, 2010, even if the criminal conduct occurred before the Fair Sentencing Act's effective date. Congress “expressly” required that outcome by ordering the emergency amendments within 90 days. Thus, many pre-August 3, 2010 offenders will benefit from the changed crack offense levels, at least if the mandatory minimums do not apply to them. Congress instructed the Commission to make such changes and make them immediately, under an existing statutory structure that makes them apply to those who have already offended but who have not yet been sentenced. It would be a strange definition of “conforming” and “consistency” to have these new amended Guidelines go into effect while the old and therefore inconsistent statutory minimums continue.
Finally, Congress stated that its goal was to “restore fairness to Federal cocaine sentencing.” Understandably, Congress might not have wanted a large volume of previously sentenced offenders to be released from prison immediately. But what possible reason could there be to want judges to continue to impose new sentences that are not “fair” over the next five years while the statute of limitations runs? Unlike Marrero, the explicit congressional grant of emergency guideline amendment authority and the mandate of “consistency” and “conforming” amendments, coupled with the express language of the Sentencing Reform Act of 1984 (that the Guidelines in effect on the day of sentencing control irrespective of when offense conduct occurred), unmistakably demonstrate Congress's urgency and expectation of immediate change.
Douglas, 2010 WL 4260221, at ** 4-5. The Court agrees fully with Judge Hornby’s analysis in Douglas. The context in which the Act was passed, its preamble, and most importantly its “emergency” mandate that the Guidelines be amended to achieve consistency with applicable law, that is, with the Act, give rise by necessary implication to the conclusion Congress intended the Act to apply to all offenders sentenced after its enactment.