S entencing Does the Fair Sentencing Act Apply Retroactively to Defendants Whose Conduct Occurred Before the Act?

CASE AT A GLANCE
This case concerns whether defendants whose criminal conduct occurred before the enactment of the Fair Sentencing Act (FSA) should nevertheless obtain the benet of its reduced penalties for crack cocaine offenses. Edward Dorsey Sr. and Corey A. Hill both committed crack cocaine distribution offenses before, but were sentenced after, the FSAs enactment. Both argued they should be sentenced in accordance with the FSAs lower penalties. The district courts disagreed, and the Seventh Circuit upheld both sentences. The circuits are split 3-1-1 on the issue.

Dorsey v. United States and Hill v. United States Docket Nos. 11-5683 and 11-5721 Argument Date: April 17, 2012 From: The Seventh Circuit
by Rachel K. Paulose

ISSUES
This case concerns the intersection of two federal statutes: the Fair Sentencing Act (FSA) and the General Savings Statute (GSS). Two key questions must be answered: Does the GSS, which generally bars retroactive application of an ameliorative statute, apply to the FSA, which dramatically reduced crack cocaine sentences? If the GSS does apply to the FSA, did Congress explicitly or implicitly convey its intent therein to have the FSA apply to all sentencing proceedings conducted after the FSAs effective date?

FACTS
This case consolidates the appeals of two petitioners, Corey A. Hill and Edward Dorsey Sr. On March 28, 2007, Hill sold 53.3 grams of crack cocaine to a government informant. Indicted by a federal grand jury for possessing with the intent to distribute 50 or more grams of crack cocaine, Hill was found guilty after a jury trial in the Northern District of Illinois on April 20, 2009. Hill was subject to 21 U.S.C. 841s 10-year mandatory minimum for offenses involving 50 or more grams of crack cocaine. Meanwhile, on August 6, 2008, Dorsey was arrested after selling 5.5 grams of crack cocaine to a government informant in Kankakee, Illinois. Indicted by a federal grand jury, Dorsey pled guilty on June 3, 2010, in the Central District of Illinois to possessing with the intent to distribute more than 5 grams of crack cocaine. Dorsey was subject to a mandatory 10-year minimum sentence because he possessed both 5 or more grams of crack cocaine and a prior felony drug conviction.
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President Obama signed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), on August 3, 2010, its effective date. The FSA revised the prior crack cocaine sentencing regime of 100-1, which treated every one gram of crack cocaine as it would 100 grams of powder cocaine for penalty purposes. The FSA adopted instead an 18-1 ratio and revised the mandatory minimum sentences for crack cocaine offenses by raising the possession amounts required to trigger the 5- and 10- year oors. Specically, the FSA raised from 5 to 28 grams the possession amount mandating a 5-year mandatory minimum sentence. Moreover, the FSA raised from 50 to 280 grams the possession amount mandating a 10-year mandatory minimum sentence. Further, 8 of the FSA directed the U.S. Sentencing Guidelines Commission (USSGC) to promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act, a mandate which the statute described as emergency authority. Section 10 of the FSA further directed the USSGC to study and submit to Congress a report regarding the impact of the changes in Federal sentencing law under this Act, within ve years of the FSAs enactment. The USSGC promulgated an emergency guidelines amendment effectuating the FSA revisions effective November 1, 2010. The USSGC also repromulgated the emergency amendment as a permanent amendment on April 6, 2011. Later, on June 30, 2011, the USSGC voted to make its amendments retroactive, effective November 1, 2011, the same day the proposed amendments were to take effect. After the FSAs passage, the Department of Justice instructed its attorneys that the new penalties would apply prospectively only to offense conduct occurring on or after the enactment date, August 3, 2010. Federal prosecutors advocated correspondingly in sentencing

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proceedings around the country, including during the sentencing hearings for both Hill and Dorsey. Dorsey faced sentencing on September 10, 2010. He argued that he was no longer subject to the 10-year mandatory minimum in light of the recently passed FSA. The district court disagreed, noting that Dorseys conduct occurred two years before the president signed the FSA, and sentenced Dorsey to 10 years. Dorsey appealed his sentence to the U.S. Court of Appeals for the Seventh Circuit, which afrmed the sentence on March 11, 2011. Describing the FSA as The Not Quite as Fair as it could be Sentencing Act of 2010, the Seventh Circuit panel wrote, We have sympathy for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair. Nevertheless, the court concluded, Whether the FSA should be amended to more closely resemble its name is a matter for Congress. We can do nothing about it at this time. Dorsey petitioned the Seventh Circuit for rehearing en banc, which a divided court rejected by a vote of 8-2 on May 25, 2011. Joined by Judge Hamilton, Judge Williams dissented, citing 8 of the act as evidence of congressional intent to immediately apply the act. Hill was sentenced on December 2, 2010, and urged the court to apply the FSAs more lenient penalties, releasing him from the 10-year mandatory minimum. The district court concluded the FSA did not apply to Hill because his offense conduct predated the act. Accordingly, the court sentenced Hill to 120 months in prison. The court stated that but for the mandatory minimum, Hill would have received a sentence of 51 months. Hill appealed his sentence to the Seventh Circuit, which afrmed the decision below on April 6, 2011, citing its decision in Dorseys case. In response to the departments position, the lead sponsors of the FSA, Senators Dick Durbin and Patrick J. Leahy, wrote to Attorney General Eric H. Holder on November 17, 2010. Reminding the attorney general that the FSAs purpose was to restore fairness to Federal cocaine sentencing, the senators urged Holder to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Acts reduced mandatory minimum for defendants who have not yet been sentenced, regardless of when their conduct took place. On July 15, 2011, the attorney general did just that. Reversing the departments prior position, the attorney general stated, I have concluded that the law requires the application of the Acts new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place. Holder also instructed, Prosecutors are directed to act consistently with these legal principles. The Holder Memorandum noted the lack of consensus by district courts in evaluating the departments original sentencing position, presented public policy arguments against the former statutory regime, and repeated one courts rhetorical question: What possible reason could there be to want judges to continue to impose new sentences that are not fair over the next ve years while the statute of limitations runs? The governments reversal gave the Seventh Circuit occasion to consider anew whether the FSA applied retroactively when one of the

judges asked whether four fresh appeals on the same issue should be heard en banc on the courts own initiative. In United States v. Holcomb, 657 F.3d 445 (7th Cir. 2011), a divided 5-5 court (the dissenters failed to capture the majority required to force rehearing en banc because half does not a majority make) refused to repudiate its holding in Dorsey that the FSA is not retroactive. Writing for the court, Chief Judge Easterbrook stated, As far as I am aware, the Supreme Court has never held any change in a criminal penalty to be partially retroactive. And what makes application retroactive is a change in the legal consequences of activity that predates the new laws enactment. The court held that the General Savings Statute foreclose[d] partial retroactivity. Dorsey led a petition for certiorari on August 1, 2011. The next day, Hill also led a petition for certiorari. Consolidating the appeals, the Supreme Court granted certiorari on November 28, 2011. With no party left to advocate for the sentences imposed on Dorsey and Hill, the Court appointed Gibson, Dunn & Crutchers Miguel A. Estrada to defend the Seventh Circuits opinion below.

CASE ANALYSIS
This case, at rst glance, seems simple: when a law changes penalties, what is the relevant date in determining which version of the law determines sentencing penalties in federal criminal proceedings? However, the potential answers to this question are legion and anything but simple. Is it, as the government originally contended, the date of the defendants offense conduct? Is it, as the government now asserts with the petitioners, the date of the enactment of a law that lowers penaltiesbut only for those defendants who have not yet been sentenced as of the laws enactment? Is it, as the First Circuit has held, the effective date of the revised Sentencing Guidelines provisions lowering penalties in accordance with such a law? Is it, as other defendants have contended in courts around the country, the date of the enactment of a law that lowers penaltiesfor any defendant at any point up until a nal appeal has been exhausted? Or are dates completely irrelevant, as the USSGC claims, and should all those in the criminal justice system gain the retroactive benet of any ameliorative law? Under the common law, the passage of a new law repealing a criminal statute extinguished any offenses committed before the repeal. No penalties could ensue or continue for violations of the original statute. Congress enacted the GSS, 1 U.S.C. 109, in 1871 to reverse this presumption. Section 109 states that [t]he 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. Under 109, a new statute lowering penalties may not be applied to those whose conduct predated the new statute, unless the statute itself states that Congress intended for it to be applied retroactively. Section 109 also applies to sentencing and postsentencing proceedings in that they further penalize the defendant. The saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense. Warden v. Marrero, 417 U.S. 653 (1974). U.S. v. Reisinger, 128 U.S. 398 (1888), pegs the date of the offense as 109s bright line date determining retroactivity. The courts have modied the language of 109 by
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allowing Congress to express its intent to retroactively apply a new statute either expressly or implicitly by fair implication. If the Court were to apply 109 and nd no explicit or implicit expression of retroactive intent by Congress, the FSA would apply to federal defendants whose criminal acts occurred on August 3, 2010, or thereafter. In addition to the Seventh Circuit, the Eighth Circuit, in U.S. v. Sidney, 648 F.3d 904, 910 (8th Cir. 2011), and the Fifth Circuit, in U.S. v. Tickles, 661 F.3d 212, 215 (5th Cir. 2011), have endorsed this view. Critics, including the petitioners and the government, contend that the Seventh Circuit interpretation trumps the very policy underlying the FSA. Even if 109 does apply, the question is whether Congress explicitly or implicitly conveyed its intent to immediately apply the FSA. The governments brief concedes, The FSA does not expressly state that the amended provisions of 21 U.S.C. 841(b) will apply in sentencing proceedings for pre-enactment offenders. However, petitioners and the government advance the view that Congress did in fact implicitly convey its intent to apply the FSA immediately to all defendants sentenced after the enactment of the FSA. Thus, they claim, even if 109 applies, defendants may nd refuge in 109s internal allowance for exceptions based on clearly expressed congressional intent. Such intent, the critics hold, is evidenced by 8 and 10 of the FSA, and is buttressed by the legislative history and public policy, as further described below. In the alternative, the government argues that if 109 applies to the FSA, it only connes those whose sentences were already imposed at the time of the FSAs enactment. In this view, Dorsey and Hill would still be released from the mandatory minimums. The parties next turn to the legislative history, which they each argue supports their claims. Under the partial retroactivity analysis newly favored by the government, the FSA applies to anyone sentenced on or after August 3, 2010, the date of the enactment of the FSA. This view was adopted by the Eleventh Circuit in U.S. v. Rojas, 645 F.3d 1234 (11th Cir. 2011). Moreover, the government asserts that 109 does contain implicit authorization to apply the FSA immediately for any defendant sentenced after the FSA was enacted. First, the government and petitioners cite at length policy arguments documenting congressional disapproval of pre-FSA penalties as overly harsh, particularly to the African American community Congress found most impacted by crack cocaine offenses. In response, the Court Appointed Amicus Curiae cites McNeill v. U.S., 131 S. Ct. 2218 (2011), a unanimous opinion, to assert the Court has already repudiated the sentencing date as too random to determine eligibility for retroactivity. McNeill, however, does not interpret 109. McNeill sought the benet of revised state laws redening offenses that would support the federal Armed Career Criminal Act (ACCA) sentencing enhancement. McNeill was convicted and served time under the harsher laws. The Court rejected McNeills argument that the states revised denition of violent felony should trump the denition that applied at the time of McNeills offense, as if the [state] offense were committed on the day of federal sentencing.
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The Court explained: McNeills interpretation would make ACCAs applicability depend on the timing of the federal sentencing proceeding. McNeill cannot explain why two federal defendants who violated 922(g) on the same day and who had identical criminal histories down to the dates on which they committed and were sentenced for their prior offenses should receive dramatically different federal sentences solely because ones 922(g) sentencing happened to occur after the state legislature amended the punishment for one of the shared prior offenses. In contrast, the interpretation we adopt permits a defendant to know even before he violates 922(g) whether ACCA would apply. The Court Appointed Amicus Curiae echoes this reasoning: If penalties are to differ because of an arbitrarily selected date, the severity of the penalty should depend, as it has traditionally, upon the voluntary act of a defendant in choosing the date of his criminal conduct, not the date of sentencing. The parties further disagree over whether public policy supports the retroactive application of the FSA. Petitioners decry the continuing racial injustice they say would ow from enforcement of the pre-FSA sentencing regime. According to the USSGC, the vast majority of crack cocaine offenders are African American (85.1 percent). Petitioners, the government, and amici insist Congress naturally would want the more lenient sentences authorized by the FSA applied immediately. Given the extensive legislative history documenting this racial disparity, the Eleventh Circuit concluded The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately. But opponents say Marrero raised and rejected the same type of policy argument. The question in Marrero was whether the defendants ineligibility for parole survived the original statutes repeal. In the legislative history the Marrero defendant found support for the notion that Congress was replacing a policy of retribution with rehabilitation. However, according to the Court, Respondent argues that, in light of this basic change, little purpose is served by denying respondent eligibility for parole, indeed that such denial frustrates the current Congressional goal of rehabilitating narcotics offenders. Undeniably this argument has force, but is addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds. [The statute] and 1 U.S.C. 109 saved from repeal the bar of parole eligibility and however severe the consequences for respondent, Congress trespassed no constitutional limits. At least one amicus has responded to Marrero by asking the Court to simply overrule it. The government and petitioners also look to 8 and 10 of the FSA as providing a fair implication for retroactive application of the FSA. In 8, they nd implicit support for retroactive application; 8 directs the USSGC to amend the guidelines implicated by the FSA within 90 days. This emergency authority was critical, say

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petitioners, because Congress enacted the FSA against the backdrop of 18 U.S.C. 3553(A)(4)(a)(ii). This statute directs courts to impose sentences pursuant to the Sentencing Guidelines in effect on the date the defendant is sentenced. Interpreting 8 in conjunction with 3553 sets the sentencing date as the relevant date. The First Circuit adopted this interpretation in U.S. v. Douglas, 644 F.3d 39 (1st Cir. 2011). Here, the Seventh Circuit rejected this argument, stating We believe that if Congress wanted the FSA or the guideline amendments to apply to not-yet-sentenced defendants convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA. Finding no such hint, the court held the FSA does not apply retroactively, and further held the relevant date for determination of retroactivity is the date of the underlying criminal conduct, not the date of sentencing. Denying rehearing en banc, the court also dismissed the 8 argument as unsupported by the text of 109 as well as principles of fairness: Nothing depends on the sentencing date, which reects how long it took to catch a criminal, and the state of the district judges calendar, rather than principles of deterrence or desert. In Holcomb, Chief Judge Easterbrook further dismissed 8 as nothing more than Congress instructing the Commission to get a move on in revising its guidelines. Section 8 said nothing, and implied nothing, about when the FSAs new penalties went into effect. Moreover, concluded Chief Judge Easterbrook, the USSGC lacked authority to retroactively enforce the more lenient penalties of the FSA for conduct that predated the FSA. Turning to 10, the petitioners point to the Third Circuits holding in U.S. v. Dixon, 648 F.3d 195 (3d Cir. 2011). There, the Third Circuit found implicit support for applying the FSA retroactively by looking to 10 of the FSA. Section 10 of the FSA directs the USSGC to submit to Congress a study regarding the impact of the changes in Federal sentencing law under this Act within ve years of the FSAs enactment. Unless the FSA was applied retroactively, the court noted, the study would be limited to defendants who distributed crack cocaine after August 3, 2010. In response, the Court Appointed Amicus Curiae relies again on Chief Judge Easterbrook, who countered that the 10 congressional study would be most relevant to those who acted after the FSA was enacted, as only those individuals could be presumed to have changed their behavior in response to the FSA. Easterbrook refuted Dixon as an exercise in poor reasoning: A study of the [FSAs] effects will produce meaningful results only if limited to persons whose criminal conduct occurs while the [FSA] is in force. Dixon got things backward. The First Circuit has set the effective date of the amended Sentencing Guidelines as the FSA trigger date. Pursuant to 8 of the FSA, the USSGC amended the Sentencing Guidelines effective November 1, 2010, in conformity with the reduced penalties of the FSA. In Douglas, Judge Boudin wrote for the panel in afrming a district courts application of the FSA lowered penalties to a defendant whose conduct and guilty plea both predated the FSA. The defendants sentencing, however, occurred after the new guidelines implementing the FSA were effectuated. Looking to 18 U.S.C. 3553(a)(4), which provides for defendants to be sentenced under the guidelines in effect on the day of sentencing as described supra, Judge Boudin found the defendant should obtain the benet of the guidelines in effect at the

time of his sentencing, regardless of when his offense conduct took place. In effect, anyone sentenced after the effective date of the new guidelines, would obtain the benet of the FSAs decreased penalties under Douglas. Douglas itself acknowledged what its critics point out: post-Booker, the guidelines are no longer mandatory. The sentencing deadlines may not trump statutorily mandated minimums, as the guidelines are but one factor sentencing judges consider in setting sentences. However, Judge Boudin found that the revised mandatory minimums, congressional intent, and the rule of lenity weighed in favor of applying the FSA immediately. Defendants nationwide have proposed alternative FSA trigger dates, including the appeal exhaustion date or no date at all (a view endorsed by the USSGC), but no court of appeals has accepted these alternative proposals.

SIGNIFICANCE
This case gives the Court an opportunity to speak to the weight and importance of the attorney generals memo changing the governments position. Seventh Circuit Judge Williams accorded great weight to the Holder Memorandum, which confessed error, reversed the governments initial position, and advocated a partial retroactivity standard. Judge Williams asserted the Holder Memorandum gave the court cause to reect on its prior ruling. The Memorandum, she wrote, is the ofcial position the federal government will be taking in every federal court across the country. That is signicant. We also rarely see such a complete change of course. On the other hand, Chief Judge Easterbrook concluded the attorney generals Memorandum lacked critical legal analysis, and was essentially an ipse dixit: 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 observation that Congress, the President, and many federal judges think the former rules excessively severe does not distinguish the [FSA] from any other law reducing sentences and does not justify disregarding the anti-retroactivity norm created by 109. To the Memorandums repetition of a courts rhetorical question as to why sentences should continue to be imposed that Congress labeled unfair, Easterbrook responded, 109 itself supplies the reason. It tells us that statutory lenience does not reduce the punishments for acts completed before the new law took effect. The governments reversal of position in the middle of this litigation is highly unusual. What, if any, signicance to accord to its confession of error will be an interesting issue for the Court to determine. On a practical level, the outcome of this case will affect the sentences of thousands of defendants at various stages in the criminal justice system, including those already incarcerated. If, as the USSGC hopes, the Court applies the FSA retroactively without limitation, more than 12,000 offenders will be eligible for sentence reduction, according to a USSGC study. Of those, at least 3,109 will be eligible for release this year.
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If, as the government suggests, the Court determines the FSA is partially retroactive, only those cases decided after August 3, 2010, that failed to apply the FSA retroactively would require resentencing. The courts and Congress alike will use the Courts decision in this case as a guide in determining the retroactivity of future ameliorative legislation. The government has acknowledged the FSA contains no explicit directive to impose its more lenient penalties retroactively. The interpretative question in this case, and for others to come, is how greatly a court must strain to nd implicit support for retroactive application of an ameliorative statute. If the Court reads any of the possible indicia of implicit support for retroactive application of the FSA 8, 10, the legislative history, or public policy as grounds to interpret the FSA as petitioners suggest, future courts will likely be more amenable to nding implicit support for retroactivity in the legislative history of ameliorative legislation. Conversely, if the Court afrms the Seventh Circuit decision, it will set an expectation of clearly expressed intent for both Congress to articulate in drafting and courts to consider in interpreting ameliorative statutes.

ATTORNEYS FOR THE PARTIES

For Petitioner Edward Dorsey Sr. (Daniel T.Hansmeier, 217.492.5070) For Petitioner Corey A. Hill (Stephen E. Eberhardt, 708.633.9100) For Respondent United States (Donald B. Verrilli Jr., Solicitor General, 202.514.2217) Court Appointed Amicus Curiae in Support of the Judgments Below (Miguel A. Estrada, 202.955.8500)

Amicus BrieFs
In Support of the Petitioners Edward Dorsey Sr. and Corey A. Hill American Civil Liberties Union, the ACLU of Illinois, the Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People, the Sentencing Project, Families Against Mandatory Minimums, the Open Society Institute, the Drug Policy Alliance, and StoptheDrugWar.org (Steven R.Shapiro, 212.549.2500) Center for the Administration of Criminal Law and the NYU School of Law (Alexandra A. E.Shapiro, 212.479.6724) Former U.S. District Court Judges Paul G. Cassell and Nancy Gertner (Nancy Gertner, 617.496.4099) National Association of Criminal Defense Lawyers and the National Association of Federal Defenders (Jeffrey T.Green, 202.736.8000)

Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly, LLP. She has also served extensively in government, including as law clerk to Eighth Circuit Court of Appeals Judge James B. Loken, trial attorney for the Civil Rights Division of the U.S. Department of Justice, assistant U.S. attorney, and U.S. attorney. She can be reached at rkpaulose@hotmail.com. PREVIEW of United States Supreme Court Cases, pages 255259. 2012 American Bar Association.

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