United States v. Carmelina Vera Rojas

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14662 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 6, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20236-AJ-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
CARMELINA VERA ROJAS,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 6, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
We sua sponte modify our previous opinion in this appeal to reflect recent
developments in the law of the First and Seventh Circuits. See United States v.
Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341,
2011 WL 2120163 (1st Cir. May 31, 2011).
The issue in this appeal is whether the Fair Sentencing Act of 2010
(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who
committed crack cocaine offenses before August 3, 2010, the date of its
enactment, but who are sentenced thereafter. We conclude that it does.
In May 2010, Carmelina Vera Rojas pleaded guilty to one count of
conspiring to possess with the intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of
distributing 5 grams or more of cocaine base, in violation of § 841(a)(1). Her
sentencing was scheduled for August 3, 2010, which as it so happened, was the
date on which President Obama signed the FSA into law. The district court
granted the parties a continuance to determine whether Vera Rojas should be
sentenced under the FSA. After considering the parties’ arguments, the district
court concluded that the FSA should not apply to Vera Rojas’s offenses; in
September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.
On appeal, Vera Rojas argues that the district court erred in refusing to
apply the FSA to her sentence. Because she had not yet been sentenced when the
FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s
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provision raising the quantity of crack cocaine required to trigger a ten-year
mandatory minimum sentence. Further, Vera Rojas contends that the FSA falls
within recognized exceptions to the general savings statute, 1 U.S.C. § 109.
Relying in large part on the general savings statute, the government contends that
Congress’s omission of an express retroactivity provision requires that the FSA be
applied only to criminal conduct occurring after its August 3, 2010, enactment.
We conclude that the FSA applies to defendants like Vera Rojas who had
not yet been sentenced by the date of the FSA’s enactment. The interest in
honoring clear Congressional intent, as well as principles of fairness, uniformity,
and administrability, necessitate our conclusion. Accordingly, we reverse and
remand to the district court for re-sentencing.
DISCUSSION
We review de novo the legal question of whether the FSA applies to
defendants who had not been sentenced by the date of the FSA’s enactment. See
United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997).
1. The Fair Sentencing Act of 2010
The preamble to the FSA describes it as “[a]n Act To [sic] restore fairness to
Federal cocaine sentencing.” The FSA sought to reduce the disparity between
federal criminal penalties for crack cocaine and powder cocaine offenses by
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lowering the gram-penalty ratio from 100:1 to 18:1. United States v. Douglas, 746
F. Supp. 2d 220, 222, 224 (D. Me. 2010), aff’d, 2011 WL 2120163 (1st Cir. May
31, 2011). To this end, the FSA amended the Controlled Substances Act and
Controlled Substances Import and Export Act by raising the drug quantities
required to trigger mandatory minimum sentences. See United States v. Bell, 624
F.3d 803, 814 (7th Cir. 2010). Further, the FSA provided the Sentencing
Commission with the emergency authority to promulgate all necessary
amendments to the Sentencing Guidelines within 90 days of the FSA’s August 3,
2010, enactment. FSA § 8, Pub. L. No. 111-220. Specifically, the Sentencing
Commission was charged with “mak[ing] such conforming amendments to the
Federal sentencing guidelines as the Commission determines necessary to achieve
consistency with other guideline provisions and applicable law.” Id. The
consequent amendments to the Sentencing Guidelines became effective no later
than November 1, 2010.
Under the FSA, a ten-year mandatory minimum applies to first-time
trafficking offenses involving 280 grams or more of crack cocaine, while a five-
year mandatory minimum applies to first-time trafficking offenses involving 28
grams or more of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii).
Thus, the FSA amended the Anti-Drug Act of 1986 to lower the mandatory
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minimum sentence for first-time trafficking offenses involving between 50 and
280 grams of crack cocaine from ten years to five years. Compare
§ 841(b)(1)(A)(iii) (2006), with § 841(b)(1)(A)(iii) (2010). The FSA is silent as to
whether it applies to all criminal sentencings taking place after its enactment or,
conversely, to only criminal conduct occurring after its enactment.
The district court sentenced Vera Rojas in September 2010 for conspiring
with intent to distribute 71.8 grams of crack cocaine, among other offenses. If the
court had sentenced Vera Rojas under the FSA, her offenses would have been
insufficient to trigger the ten-year mandatory minimum sentencing provision. For
the following reasons, we conclude that Vera Rojas’s sentence is subject to the
FSA’s five-year mandatory minimum provision.
2. Case Law
Vera Rojas argues that this Court’s statement in United States v. Gomes,
621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam)—“because the FSA took effect
in August 2010, after appellant committed his crimes, [the general savings statute]
bars the Act from affecting his punishment”—was merely dicta and is not
controlling precedent. We need not consider this argument because, in any event,
Gomes does not apply here. The record reveals that Gomes was indicted in July
2009 and sentenced in March 2010—nearly five months before the FSA was
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signed into law. The issue before the Court therefore was whether the FSA
applied retroactively to lighten the defendant’s existing sentence.
This appeal presents a different issue. Vera Rojas’s circumstances require
that we determine whether the FSA applies to a defendant who had not been
sentenced when the law was enacted. The government cites published opinions
from the Sixth, Seventh, Eighth, and Tenth Circuits, ostensibly in support of its
proposition that “[e]very circuit court to have addressed the issue has concluded
that the FSA may not be applied retroactively.” Like Gomes, each of those cases
involved a defendant who had been charged, convicted, and sentenced before the
effective date of the FSA; those defendants were arguing for the first time on
appeal that the FSA should apply retroactively to a previously imposed sentence.
See United States v. Carradine, 621 F.3d 575, 577–78, 580 (6th Cir. 2010)
(defendant indicted in July 2005 and sentenced in January 2008); Bell, 624 F.3d at
814 (Seventh Circuit stating that “[i]f Bell were sentenced today under the FSA,
his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the
mandatory minimum sentencing provisions”); United States v. Brewer, 624 F.3d
900, 909 n.7 (8th Cir. 2010) (stating that the defendant first submitted a letter
requesting re-sentencing under the FSA on August 27, 2010, where the record
indicates that defendant was originally sentenced in November 2009); United
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States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010) (“[The FSA] is not,
however, retroactive and thus does not apply to this case. It does, on the other
hand, relegate this case to a relatively short shelf-life, inasmuch as defendants
being sentenced henceforth will be sentenced under a different applicable ratio.”
(emphasis added)). But see United States v. Fisher, 635 F.3d 336, 340 (7th Cir.
2011) (holding that the relevant date for the FSA “is the date of the underlying
criminal conduct, not the date of sentencing,” but stating, “[w]e 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”).
We do not disagree with our sister circuits in one major sense—absent
further legislative action directing otherwise, the general savings statute prevents a
defendant who was sentenced prior to the enactment of the FSA from benefitting
from retroactive application. Further, we share in the well-reasoned view of the
First Circuit that Congress intended for the FSA to apply immediately. See
Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress
strongly desired to put 18:1 guidelines in effect by November 1 even for crimes
committed before the FSA but balked at giving the same defendants the benefit of
the newly enacted 18:1 mandatory minimums.”).
3. The Savings Clause of 1 U.S.C. § 1097
The government argues that Congress did not intend for the FSA to apply to
defendants like Vera Rojas, as a contrary conclusion would render the general
savings statute, 1 U.S.C. § 109, a nullity. Vera Rojas, on the other hand, contends
that § 109 does not apply to the FSA, because sentencing some defendants under
the old statute would frustrate the clearly evinced goals of Congress.1
The relevant clause of the general savings statute provides:
The repeal of any statute shall not have the effect to release or
extinguish any penalty . . . 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 . . . .
§ 109. Stated another way, if § 109 applies to the FSA, the FSA cannot “release or
extinguish” the penalty Vera Rojas would have received under the old version of
21 U.S.C. § 841(b)(1)(B)(iii). For the reasons explained below, we conclude that
§ 109 does not “save” the older mandatory minimum sentence for a defendant who
had not been sentenced by the date the FSA was enacted.
Over a hundred years ago, the Supreme Court explained that the general
savings statute “cannot justify a disregard of the will of Congress as manifested,
1
Citing United States v. Kolter, 849 F.2d 541, 544 (11th Cir. 1988), Vera Rojas also
argues that “the FSA did not release or extinguish the penalty for crack cocaine,” but that it
merely “redefined the classes of persons to whom the minimum mandatories apply to remedy the
defects in the 1986 law.” The Seventh Circuit recently rejected the same argument. See Bell,
624 F.3d at 814–15. However, we need not consider it here because we resolve Vera Rojas’s
appeal on other grounds.
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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 Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 659 n.10 (1974) (“[O]nly if [the
repealing statute] can be said by fair implication or expressly to conflict with
§ 109 would there be reason to hold that [the repealing statute] superseded
§ 109.”). Indeed, the Supreme Court has “made clear” that a savings provision
“cannot nullify the unambiguous import of a subsequent statute. . . . A subsequent
Congress . . . may exempt itself from [express-provision] requirements by ‘fair
implication.’” Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J.,
concurring). Where Congress’s intent for a new statute to supersede a prior one is
clear, it is not required to use “magical” words to do so. Id. at 145 (majority
opinion).
The government cites Marrero for the proposition that § 109 bars the
application of the FSA to Vera Rojas’s case. There, the Supreme Court applied
§ 109 to reject the claim that a new statute loosening parole eligibility should be
applied to those who committed their crimes before the new statute’s enactment.
417 U.S. at 659–64. But Marrero is not on-point: the repealing statute in that case
had its own savings clause that specifically sought to preserve the harsher penalty
for prosecutions initiated before its effective date. Id. at 656 n.4.
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Unlike the statute at issue in Marrero, the FSA is silent as to whether the
harsher mandatory minimums should be preserved for defendants whose cases
were pending on the date of its enactment. However, the necessary and fair
implication of the FSA is that Congress intended the Act to apply to all
sentencings going forward, because a contrary conclusion would be logically
inconsistent and would achieve absurd results: The Sentencing Reform Act of
1984 expressly states that the governing Sentencing Guidelines are those in effect
on the day a defendant is sentenced. 18 U.S.C. § 3553(a)(4)(A)(ii). But under the
government’s rationale, courts could sentence Vera Rojas and other defendants in
her position under the old, higher mandatory minimums until August 3, 2015,
when the five-year general statute of limitations would run. Congress could not
have intended this result. By granting the Sentencing Commission the emergency
authority to amend the Sentencing Guidelines by November 1, 2010, Congress
necessarily indicated its intent for the FSA to apply immediately. To ask district
courts to consider the date the offense was committed to determine the statutory
minimum, but the date of sentencing to determine the guidelines range, would lead
to an incongruous result that is inconsistent with Congressional intent. See United
States v. Rutherford, 442 U.S. 544, 552 (1979) (explaining that when interpreting
statutes, exceptions may be implied “where essential to prevent ‘absurd results’ or
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consequences obviously at variance with the policy of the enactment as a whole”).
What is more, such an interpretation of the FSA would run afoul of the policies
motivating its enactment and render ineffectual Congress’s express directive to the
Sentencing Commission. See FSA, Preamble & § 8, Pub. L. No. 111-220 (stating
that “the United States Sentencing Commission shall . . . make such conforming
amendments to the Federal sentencing guidelines as the Commission determines
necessary to achieve consistency with . . . applicable law” (emphasis added)).
Moreover, with respect to § 109, we have stated in a somewhat similar
context that “[t]he general rule is that a new statute should apply to cases pending
on the date of its enactment unless manifest injustice would result or there is a
statutory directive or legislative history to the contrary.” United States v. Kolter,
849 F.2d 541, 543 (11th Cir. 1988) (citing, among other cases, Bradley v. Sch. Bd.
of Richmond, 416 U.S. 696 (1974)). Congress stated that it passed the FSA to
“restore fairness to Federal cocaine sentencing.” Preamble, FSA, Pub. L. No. 111-
220. As one district court aptly stated in an opinion thoroughly discussing this
issue, “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?” Douglas, 746 F. Supp. 2d at 229.
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The necessary inference is that the will of Congress was for the FSA to halt
unfair sentencing practices immediately. See Great N. Ry. Co., 208 U.S. at 465.
We therefore hold that the general savings statute cannot bar application of the
FSA to sentencings conducted after its August 3, 2010, enactment. Accordingly,
we remand Vera Rojas’s case to the district court for re-sentencing consistent with
this opinion.
REVERSED AND REMANDED.
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