United States v. Yale Augustine , 712 F.3d 1290 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-50061
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-00402-
AHM-1
YALE AUGUSTINE ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California,
A. Howard Matz, District Judge, Presiding
Argued and Submitted
February 7, 2013—Pasadena, California
Filed April 3, 2013
Before: Consuelo M. Callahan, Sandra S. Ikuta, and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz
2 UNITED STATES V . AUGUSTINE
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . AUGUSTINE 3
COUNSEL
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.
OPINION
HURWITZ, Circuit Judge:
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.
I.
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 court
4 UNITED STATES V . AUGUSTINE
applied 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-held
UNITED STATES V . AUGUSTINE 5
perception’ that it ‘promotes unwarranted disparity based on
race.’” Kimbrough, 552 U.S. at 98 (quoting United States
Sentencing Commission, Report to the Congress: Cocaine
and Federal Sentencing Policy 103 (May 2002), available at
http://www.ussc.gov/Legislative_and_Public_Affairs
/Congressional_Testimony_and_Reports/Drug_Topics
/200205_RtC_Cocaine_Sentencing_Policy/200205_Cocaine
_and_Federal_Sentencing_Policy.pdf); 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 (amending 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.
6 UNITED STATES V . AUGUSTINE
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) (listing Part A of
Amendment 750 as retroactive).
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).
UNITED STATES V . AUGUSTINE 7
II.
A.
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,
8 UNITED STATES V . AUGUSTINE
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 sentence further, holding
that the pre-FSA 120-month mandatory minimum still
applied. Id. at 1144. We affirmed, holding that “[t]he FSA
does not apply to defendants sentenced prior to its effective
date of August 3, 2010.” Id. at 1148 (citing Baptist, 646 F.3d
at 1229).
In attempting to distinguish Sykes, Augustine notes that
the post-FSA Guidelines amendments, Amendments 748,
750, and 759, had not yet been promulgated when Sykes’
§ 3582(c)(2) motion was denied. He argues that applying a
pre-FSA mandatory minimum and a post-FSA Guidelines
range is “odd,” because even the high end of the post-FSA
Guidelines range will often be well below the pre-FSA
mandatory minimum, as is the case here.
UNITED STATES V . AUGUSTINE 9
Augustine’s observation has some force. But, as we
explained in Baptist, Congress seems to have intended any
such oddity. Baptist, 646 F.3d at 1227–30. The Sentencing
Guidelines also contemplate such a regime, providing that “a
reduction in the defendant’s term of imprisonment is not
authorized under 18 U.S.C. § 3582(c)(2) and is not consistent
with this policy statement if . . . the amendment does not have
the effect of lowering the defendant’s applicable guideline
range because of the operation of another guideline or
statutory provision (e.g., a statutory mandatory minimum
term of imprisonment).” U.S.S.G. § 1B1.10 cmt. n.1(A).
In the end, Augustine’s argument that the FSA’s
mandatory minimums apply retroactively in § 3582(c)(2)
proceedings ignores the core holding of Baptist and Sykes:
Congress did not, as the General Savings Statute requires,
express in the FSA any intention that the new mandatory
minimums apply to those sentenced before the effective date
of the act. See Baptist, 646 F.3d at 1227–30; Sykes, 658 F.3d
at 1148; see also Hart v. Massanari, 266 F.3d 1155, 1171
(9th Cir. 2001) (“Once a panel resolves an issue in a
precedential opinion, the matter is deemed resolved, unless
overruled by the court itself sitting en banc, or by the
Supreme Court.”). Our prior decisions therefore doom
Augustine’s argument on this point.
B.
Augustine also argues that Dorsey v. United States,
132 S. Ct. 2321 (2012), decided after Baptist and Sykes,
effectively overrules those decisions. On its face, however,
Dorsey does not aid Augustine, as the Supreme Court there
found the FSA’s lower mandatory minimums applicable to
defendants sentenced after the Act’s enactment, even if the
10 UNITED STATES V . AUGUSTINE
relevant conduct and conviction occurred beforehand. Id. at
2326; see also United States v. Robinson, 697 F.3d 443, 445
(7th Cir. 2012) (per curiam) (“Dorsey carefully confined its
application of the Fair Sentencing Act to pre-Act offenders
who were sentenced after the Act.”).
Augustine’s real argument is that it would be arbitrary to
make application of the FSA turn on the date of sentencing,
often a matter of happenstance unrelated to the defendant’s
culpability. The Supreme Court, however, expressly
recognized “that application of the new minimums to pre-Act
offenders sentenced after August 3 will create a new set of
disparities,” but nonetheless concluded “that this particular
new disparity (between those pre-Act offenders already
sentenced and those not yet sentenced as of August 3) cannot
make a critical difference.” 132 S. Ct. at 2335. This
statement is dictum, but considered Supreme Court dictum is
special. “We do not treat considered dicta from the Supreme
Court lightly. Rather, we accord it appropriate deference.”
United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17
(9th Cir. 2000); see also Fields, 699 F.3d at 522 (treating
Dorsey’s “carefully considered” dictum as “authoritative”).
In light of the Dorsey dictum, other circuits to consider
the issue have unsurprisingly – and unanimously – rejected
the argument that Dorsey requires retroactive application of
the FSA’s mandatory minimums to those sentenced before
the Act’s passage. United States v. Turlington, 696 F.3d 425,
428 (3d Cir. 2012); United States v. Mouzone, 687 F.3d 207,
222 (4th Cir. 2012), cert. denied sub nom. Fleming v. United
States, 133 S. Ct. 899 (2013); United States v. Stanley, No.
11-4423, 2012 WL 4014932, at *2–3 (6th Cir. Sept. 13, 2012)
(unpublished), cert. denied, 133 S. Ct. 1302 (2013);
Robinson, 697 F.3d at 444–45; United States v. Wormley,
UNITED STATES V . AUGUSTINE 11
471 Fed. Appx. 837, 839 (10th Cir. 2012) (unpublished);
Fields, 699 F.3d at 522. We agree with our sister circuits.
We recognize, as did the Supreme Court, that this regime
creates a disparity between those sentenced before and after
adoption of the FSA. But, as Dorsey noted, some disparities
“will exist whenever Congress enacts a new law changing
sentences.” 132 S. Ct. at 2335. Any unfairness of the
disparity resulting from the inapplicability of the FSA to
Augustine, however, is beyond the province of this court to
resolve. In light of the General Savings Statute, Congress,
through its silence in the FSA on the question of retroactivity,
has resolved the issue.
C.
Like Augustine, many sentenced for crack cocaine
offenses before enactment of the FSA are eligible for some
reduction of sentence in light of the Guidelines Amendments.
See U.S.S.G. App. C., amends. 748, 750, 759. These
defendants may receive reductions of sentences to the
statutory minimums in effect at the time of sentencing if the
applicable Guidelines range so allows. The district court,
however, may not impose a sentence below applicable pre-
FSA mandatory minimums.
Here, for example, the post-FSA Guidelines amendments
lowered the range applicable to Augustine to 70 to 87
months. The district court reduced Augustine’s sentence to
120 months, the applicable mandatory minimum. The
Government does not oppose that reduction, and we
encourage district courts to consider similar reductions when
confronted with § 3582(c)(2) motions from similarly situated
defendants. Although relatively minor, such reductions are
12 UNITED STATES V . AUGUSTINE
consistent with the FSA’s goal to mitigate the unfair disparity
between crack and powder cocaine offense sentences.
III.
For the reasons above, we hold that the FSA mandatory
minimums do not apply in § 3582(c)(2) proceedings to
defendants sentenced before the FSA was enacted. The
district court’s order is therefore affirmed.
AFFIRMED.