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Fair Sentencing Act (FSA) — Why Not Retroactive?

The Fair Sentencing Act (“FSA”) has now become law. But the law contains no express language declaring it retroactively applicable to those who were convicted or sentenced before it took effect. Defendants facing sentencing, appealing their convictions, or seeking relief in some form of post-conviction motion must argue for retroactivity to greatly imporse their chances for benefitting and receiving lower sentences. Given the strong policy reasons to apply the FSA retroactively, many courts would be inclined to grant retroactive relief. After all, the law has been changed in order to correct past wrongs, including a disparate impact of unduly harsh penalties on African-American families.

Most inmates and defendants should expect the government to oppose any request for application of the FSA to defendants at sentencing or on direct appeal and continue to push for the longest sentence possible. That is simply what they do. I will be arguing that the FSA must be applied to all defendants currently facing sentencing, or who have cases pending on direct appeal. Some courts may grant relief, others will not. And, eventually, the case law will become settled. In the meantime, I think it would be a tremendous mistake to not make the argument.

Convictions do not become final until the expiration of direct review. See Kapral v. United States, 166 F.3d 565, 577 (3rd Cir. 1999). This distinction is important because it will be a more difficult argument to make if the attempt is to apply the FSA retroactively on collateral review (rather than on direct appeal). See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”). See also Reynoldsville Casket Co. v Hyde, 514 U.S. 749, 752, 115 S. Ct. 1745 (1995) (civil case); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S Ct 2510 (1993) (same).

In the past, the new law from Apprendi, Blakely, and Booker were all applied to cases at sentencing and on direct review. The same should be true for the new rules created by the FSA. Here, Congress changed the law. Regardless of whether the new law is a result of a new statute or new court, the new law should apply the same. The reason new law applies retroactively on direct appeal (or sentencing), is to “treat[] similarly situated defendants the same.” Griffith, 479 U.S. at 323. If the FSA is not applied to all cases on direct appeal, similarly situated defendants will be treated idisparately. Defendants convicted of the exact same conduct, and who have similar criminal records, will have far different punishment simply because of the date on the calender.

For example, many inmates have already received mandatory sentences of life imprisonment because it was admitted or proved to a jury that the offense involved 50 grams or more of crack, and because the defendant had two prior felony drug convictions. See 21 USC § 841(b)(1)(A). Defendants convicted of 50 grams of crack, with similar criminal records, are not subject to a minimum life sentence under the FSA. Defendants convicted of five grams of crack, which previously carried a penalty of five to 40 years, now will face a sentence between zero to 20 years based on the exact same offense.

Of course, each case is different. But wherever appropriate our attorneys will be arguing that the new penalties under the FSA must be applied to all defendants currently facing sentencing, or who have cases pending on direct appeal. The argument has merit.


Judge Sentences Defendant below Minimum Mandatory Citing § 3553(a)(2) and FSA

Perhaps the most thoughtful and courageous opinion by a district court judge ever: United States v. Miller, 2010 U.S. Dist. LEXIS 79763 (D. MN., Aug., 6, 2010).

Mr. Miller was convicted in 1990 of offenses involving 50 grams or more of crack cocaine. He was subject to a § 4B1.1 enhancement because he had at least two prior controlled substance convictions. He received a statutory minium life sentence under § 841(b)(1)(A) because he had two prior felony drug convictions. Using arguments similar to those developed by Robinson & Brandt in 2008, Miller moved for a reduced sentence under § 3582(c) based on the 2007 amended crack guidelines.

The court noted that a “career offender sentence, or sentence imposed by a statutory minimum, is generally ineligible for a § 3582(c) sentence reduction (cites omitted). Indeed, the Eighth Circuit has clarified that a statutory minimum sentence remains ‘unaffected by the recent amendments to the crack quantity guidelines.’(cite omit). The Court does not lightly stray from the bounds of these decisions. This case, however, represents a singular and unique exception.”

The judge went on to explain all of the reasons why a sentence of life imprisonment was too long, citing the parsimony provision under § 3553(a)(2). Then, noting the Fair Sentencing Act in a footnote, the court reduced the sentence from life, down to 262 months.

President Obama signs the Fair Sentencing Act of 2010

In August 2010, President Obama signed the Fair Sentencing Act of 2010. Among several matters, the Act addresses the mandatory minimum sentences applicable for offenses involving cocaine base (crack cocaine). For example, while an offense involving only 50 grams of crack had triggered a ten-year mandatory minimum in the past, that mandatory minimum is now triggered if the government charges and proves beyond a reasonable doubt the offense involved 280 grams of crack.

This action is an important step toward ending unfairly harsh punishments imposed primarily upon blacks and, to a lesser degree, Latino citizens. But it is not enough, and it cannot be the end of reform. The Act applies solely to defendants charged after the Act takes effect—not the thousands of citizens wasting away in prison with unfair crack sentences. Robinson & Brandt plans to fight for retroactive application of the Act in some circumstances, including where the new law would eliminate a mandatory minimum and result in a drop in the client’s sentence.

We hope (and expect) the U.S. Sentencing Commission to amend the Guidelines to reduce offense levels for crack and to make those amendments retroactively applicable. That change would bring significant relief to many to tcitizens already serving (too much) time. But Guidelines amendments would not be enough to help those citizens already convicted and sentenced to mandatory minimums of 10 years, 20 years, and even life. Retroactive application of Guideline amendments must go hand-in-hand with retroactive application of the Fair Sentencing Act to achieve justice and to begin to repair the substantial damage done to the reputation of the federal criminal justice system.