In United States v. Richard Reevey, 631 F.3d 110, 115 No. 10-1812, No. 10-1834 (3rd cir. 2010), the Third Circuit held that since the Fair Sentencing Act (“FSA”), enacted 8/3/10, does not contain an express statement that the increase in the amount of crack cocaine triggering the five-year mandatory minimum is to be applied to crimes committed before 8/3/10, it does not provide that those sentenced before that date should be resentenced under the new guidelines. Thus, the FSA does not prevent the courts from applying the penalties in place at the time the crime was committed, and certainly the FSA does not apply to those who had already been sentenced and seek resentencing (as new FSA reduced certain mandatory minimum prison terms prescribed under prior FSA).
See also: 1st Cir.: United States of America v. William Douglas (05/31/2011)
In 2009, William Douglas and a co-conspirator engaged in a series of cocaine base sales to an undercover agent in Maine. In January 2010, Douglas pled guilty to a one-count information charging him with conspiracy to distribute and to possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (2006). The new FSA went into effect on August 3, 2010.
Sentencing under the old ratio was 100:1 and thus the five-year mandatory minimum was triggered for 5 grams of cocaine base or 500 grams of cocaine powder; the ten-year minimum was for 50 grams of cocaine base or 5 kilograms of powder. 21 U.S.C. § 841(b)(1)(A)(ii)-(iii), (b)(1)(B)(ii)-(iii) (amended 2010).
Sentencing under the new statute is 18:1 and thus triggered a five-year minimum for 28 grams of cocaine base (and powder at 500 grams) and a ten-year minimum for 280 grams of cocaine base (and powder at 5 kilograms). FSA § 2(a), 124 Stat. at 2372 (amending 21 U.S.C. § 841(b)(1)). In sum, the new minimums treat cocaine base more harshly than powder.
Douglas’ guidelines range, after adjustments, was 70-87 months. On November 8, over the government’s objection, the court sentenced Douglas to 56 months, based on government’s § 5K1.1 departure motion in prison rather than to the ten-year mandatory minimum set by the pre-FSA drug statute.
On October 27, 2010, the district court concluded that Congress intended the new guidelines provisions to control from November 1, 2010 forward but also–and this is the heart of the dispute now before us–that by implication Congress intended the new mandatory minimums based on the same 18:1 ratio to supersede the higher mandatory minimums in effect in 2009 when Douglas’ crime was committed. United States v. Douglas, 746 F. Supp. 2d 220, 231 (D. Me. 2010).
Special thanks to Burt A. Rose and other members of the Criminal Justice Section – Pennsylvania Bar Association for updates on FSA.