Dorsey v. United States

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DORSEY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 11–5683. Argued April 17, 2012—Decided June 21, 2012*
Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-year
mandatory minimum prison terms for federal drug crimes reflected a
100-to-1 disparity between the amounts of crack cocaine and powder
cocaine needed to trigger the minimums. Thus, the 5-year minimum
was triggered by a conviction for possessing with intent to distribute
5 grams of crack cocaine but 500 grams of powder, and the 10-year
minimum was triggered by a conviction for possessing with intent to
distribute 50 grams of crack but 5,000 grams of powder. The United
States Sentencing Commission—which is charged under the Sentenc-
ing Reform Act of 1984 with writing the Federal Sentencing Guide-
lines—incorporated the 1986 Drug Act’s 100-to-1 disparity into the
Guidelines because it believed that doing so was the best way to keep
similar drug-trafficking sentences proportional, thereby satisfying
the Sentencing Reform Act’s basic proportionality objective. The Fair
Sentencing Act, which took effect on August 3, 2010, reduced the dis-
parity to 18-to-1, lowering the mandatory minimums applicable to
many crack offenders, by increasing the amount of crack needed to
trigger the 5-year minimum from 5 to 28 grams and the amount for
the 10-year minimum from 50 to 280 grams, while leaving the pow-
der cocaine amounts intact. It also directed the Sentencing Commis-
sion to make conforming amendments to the Guidelines “as soon as
practicable” (but no later than 90 days after the Fair Sentencing Act’s
effective date). The new amendments became effective on November
1, 2010.
In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in
——————
* Together with No. 11–5721, Hill v. United States, also on certiorari
to the same court.
2 DORSEY v. UNITED STATES
Syllabus
2007, but was not sentenced until December 2010. Sentencing him to
the 10-year minimum mandated by the 1986 Drug Act, the District
Judge ruled that the Fair Sentencing Act’s 5-year minimum for sell-
ing that amount of crack did not apply to those whose offenses were
committed before the Act’s effective date. In No. 11−5683, petitioner
Dorsey unlawfully sold 5.5 grams of crack in 2008. In September
2010, the District Judge sentenced him to the 1986 Drug Act’s 10-
year minimum, finding that it applied because Dorsey had a prior
drug conviction and declining to apply the Fair Sentencing Act, under
which there would be no mandated minimum term for an amount
less than 28 grams, because Dorsey’s offense predated that Act’s ef-
fective date. The Seventh Circuit affirmed in both cases.
Held: The Fair Sentencing Act’s new, lower mandatory minimums ap-
ply to the post-Act sentencing of pre-Act offenders. Pp. 10−20.
(a) Language in different statutes argues in opposite directions.
The general federal saving statute (1871 Act) provides that a new
criminal statute that “repeal[s]” an older criminal statute shall not
change the penalties “incurred” under that older statute “unless the
repealing Act shall so expressly provide.” 1 U.S. C. §109. The word
“repeal” applies when a new statute simply diminishes the penalties
that the older statute set forth, see Warden v. Marrero, 417 U.S. 653,
659−664, and penalties are “incurred” under the older statute when
an offender becomes subject to them, i.e., commits the underlying
conduct that makes the offender liable, see United States v.
Reisinger, 128 U.S. 398, 401. In contrast, the Sentencing Reform Act
says that, regardless of when the offender’s conduct occurs, the appli-
cable sentencing guidelines are the ones “in effect on the date the de-
fendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii).
Six considerations, taken together, show that Congress intended
the Fair Sentencing Act’s more lenient penalties to apply to offenders
who committed crimes before August 3, 2010, but were sentenced af-
ter that date. First, the 1871 saving statute permits Congress to ap-
ply a new Act’s more lenient penalties to pre-Act offenders without
expressly saying so in the new Act. The 1871 Act creates what is in
effect a less demanding interpretive requirement because the statute
“cannot justify a disregard of the will of Congress as manifested, ei-
ther expressly or by necessary implication, in a subsequent enact-
ment.” Great Northern R. Co. v. United States, 208 U.S. 452, 465.
Hence, this Court has treated the 1871 Act as setting forth an im-
portant background principle of interpretation that requires courts,
before interpreting a new criminal statute to apply its new penalties
to a set of pre-Act offenders, to assure themselves by the “plain im-
port” or “fair implication” of the new statute that ordinary interpre-
tive considerations point clearly in that direction. Second, the Sen-
Cite as: 567 U. S. ____ (2012) 3
Syllabus
tencing Reform Act sets forth a special and different background
principle in §3553(a)(4)(A)(ii), which applies unless ex post facto con-
cerns are present. Thus, new, lower Guidelines amendments apply to
offenders who committed an offense before the adoption of the
amendments but are sentenced thereafter. Third, language in the
Fair Sentencing Act implies that Congress intended to follow the
Sentencing Reform Act’s special background principle here. Section 8
of the Fair Sentencing Act requires the Commission to promulgate
conforming amendments to the Guidelines that “achieve consistency
with other guideline provisions and applicable law.” Read most nat-
urally, “applicable law” refers to the law as changed by the Fair Sen-
tencing Act, including the provision reducing the crack mandatory
minimums. And consistency with “other guideline provisions” and
with prior Commission practice would require application of the new
Guidelines amendments to offenders who committed their offense be-
fore the new amendments’ effective date but were sentenced thereaf-
ter. Fourth, applying the 1986 Drug Act’s old mandatory minimums
to the post-August 3 sentencing of pre-August 3 offenders would cre-
ate sentencing disparities of a kind that Congress enacted the Sen-
tencing Reform Act and the Fair Sentencing Act to prevent. Fifth,
not to apply the Fair Sentencing Act would do more than preserve a
disproportionate status quo; it would make matters worse by creating
new anomalies―new sets of disproportionate sentences―not previous-
ly present. That is because sentencing courts must apply the new
Guidelines (consistent with the Fair Sentencing Act’s new mini-
mums) to pre-Act offenders, and the 1986 Drug Act’s old minimums
would trump those new Guidelines for some pre-Act offenders but not
for all of them. Application of the 1986 Drug Act minimums to pre-
Act offenders sentenced after the new Guidelines take effect would
therefore produce a set of sentences at odds with Congress’ basic ef-
forts to create more uniform, more proportionate sentences. Sixth,
this Court has found no strong countervailing considerations that
would make a critical difference. Pp. 10−19.
(b) The new Act’s lower minimums also apply to those who commit-
ted an offense prior to August 3 and were sentenced between that
date and November 1, 2010, the effective date of the new Guidelines.
The Act simply instructs the Commission to promulgate new Guide-
lines “as soon as practicable” (but no later than 90 days after the Act
took effect), and thus as far as Congress was concerned, the Commis-
sion might have promulgated those Guidelines to be effective as early
as August 3. In any event, courts, treating the Guidelines as advi-
sory, possess authority to sentence in accordance with the new mini-
mums. Finally, applying the new minimums to all who are sentenced
after August 3 makes it possible to foresee a reasonably smooth tran-
4 DORSEY v. UNITED STATES
Syllabus
sition, and this Court has no reason to believe Congress would have
wanted to impose an unforeseeable, potentially complex application
date. Pp. 19−20.
No. 11−5683, 635 F.3d 336, and No. 11−5721, 417 Fed. Appx. 560, va-
cated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and THOMAS and ALITO,
JJ., joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–5683 and 11–5721
_________________
EDWARD DORSEY, SR., PETITIONER
11–5683 v.
UNITED STATES
COREY A. HILL, PETITIONER
11–5721 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2012]
JUSTICE BREYER delivered the opinion of the Court.
Federal statutes impose mandatory minimum prison
sentences upon those convicted of federal drug crimes.
These statutes typically base the length of a minimum
prison term upon the kind and amount of the drug in-
volved. Until 2010, the relevant statute imposed upon an
offender who dealt in powder cocaine the same sentence it
imposed upon an offender who dealt in one one-hundredth
that amount of crack cocaine. It imposed, for example, the
same 5-year minimum term upon (1) an offender convicted
of possessing with intent to distribute 500 grams of pow-
der cocaine as upon (2) an offender convicted of possessing
with intent to distribute 5 grams of crack.
In 2010, Congress enacted a new statute reducing the
crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
Fair Sentencing Act, 124 Stat. 2372. The new statute took
2 DORSEY v. UNITED STATES
Opinion of the Court
effect on August 3, 2010. The question here is whether
the Act’s more lenient penalty provisions apply to offend-
ers who committed a crack cocaine crime before August 3,
2010, but were not sentenced until after August 3. We
hold that the new, more lenient mandatory minimum
provisions do apply to those pre-Act offenders.
I
The underlying question before us is one of congres-
sional intent as revealed in the Fair Sentencing Act’s lan-
guage, structure, and basic objectives. Did Congress
intend the Act’s more lenient penalties to apply to pre-Act
offenders sentenced after the Act took effect?
We recognize that, because of important background
principles of interpretation, we must assume that Con-
gress did not intend those penalties to apply unless it
clearly indicated to the contrary. See infra, at 10–13. But
we find that clear indication here. We rest our conclu-
sion primarily upon the fact that a contrary determination
would seriously undermine basic Federal Sentencing
Guidelines objectives such as uniformity and proportional-
ity in sentencing. Indeed, seen from that perspective, a
contrary determination would (in respect to relevant
groups of drug offenders) produce sentences less uniform
and more disproportionate than if Congress had not en-
acted the Fair Sentencing Act at all. See infra, at 14–18.
Because our conclusion rests upon an analysis of the
Guidelines-based sentencing system Congress has estab-
lished, we describe that system at the outset and include
an explanation of how the Guidelines interact with federal
statutes setting forth specific terms of imprisonment.
A
The Guidelines originate in the Sentencing Reform Act
of 1984, 98 Stat. 1987. That statute created a federal
Sentencing Commission instructed to write guidelines that
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
judges would use to determine sentences imposed upon
offenders convicted of committing federal crimes. 28
U.S. C. §§991, 994. Congress thereby sought to increase
transparency, uniformity, and proportionality in sentenc-
ing. United States Sentencing Commission (USSC or
Commission), Guidelines Manual §1A1.3, p. 2 (Nov. 2011)
(USSG); see 28 U.S. C. §§991(b)(1), 994(f).
The Sentencing Reform Act directed the Commission to
create in the Guidelines categories of offense behavior
(e.g., “ ‘bank robbery/committed with a gun/$2500 taken’ ”)
and offender characteristics (e.g., “one prior conviction”).
USSG §1A1.2, at 1; see 28 U.S. C. §§994(a)–(e). A sen-
tencing judge determines a Guidelines range by (1) finding
the applicable offense level and offender category and then
(2) consulting a table that lists proportionate sentenc-
ing ranges (e.g., 18 to 24 months of imprisonment) at the
intersections of rows (marking offense levels) and columns
(marking offender categories). USSG ch. 5, pt. A, Sen-
tencing Table, §§5E1.2, 7B1.4; see also §1A1.4(h), at 11.
The Guidelines, after telling the judge how to determine the
applicable offense level and offender category, instruct the
judge to apply the intersection’s range in an ordinary case,
but they leave the judge free to depart from that range in
an unusual case. See 18 U.S. C. §3553(b); USSG §§1A1.2,
at 1–2, 1A1.4(b), at 6–7. This Court has held that the
Guidelines are now advisory. United States v. Booker, 543
U.S. 220, 245, 264 (2005); see Kimbrough v. United
States, 552 U.S. 85, 91 (2007).
The Guidelines determine most drug-crime offense lev-
els in a special way. They set forth a Drug Quantity
Table (or Table) that lists amounts of various drugs and
associates different amounts with different “Base Offense
Levels” (to which a judge may add or subtract levels de-
pending upon the “specific” characteristics of the offender’s
behavior). See USSG §2D1.1. The Table, for example,
associates 400 to 499 grams of powder cocaine with a base
4 DORSEY v. UNITED STATES
Opinion of the Court
offense level of 24, a level that would mean for a first-time
offender a prison term of 51 to 63 months. §2D1.1(c).
In 1986, Congress enacted a more specific, drug-related
sentencing statute, the Anti-Drug Abuse Act (1986 Drug
Act), 100 Stat. 3207. That statute sets forth mandatory
minimum penalties of 5 and 10 years applicable to a drug
offender depending primarily upon the kind and amount of
drugs involved in the offense. See 21 U.S. C. §§841(b)(1)
(A)–(C) (2006 ed. and Supp. IV). The minimum applicable
to an offender convicted of possessing with intent to dis-
tribute 500 grams or more of powder cocaine is 5 years,
and for 5,000 grams or more of powder the minimum is
10 years. §§841(b)(1)(A)(ii), (B)(ii). The 1986 Drug Act,
however, treated crack cocaine crimes as far more serious.
It applied its 5-year minimum to an offender convicted of
possessing with intent to distribute only 5 grams of crack
(as compared to 500 grams of powder) and its 10-year
minimum to one convicted of possessing with intent to
distribute only 50 grams of crack (as compared to 5,000
grams of powder), thus producing a 100-to-1 crack-to-
powder ratio. §§841(b)(1)(A)(iii), (B)(iii) (2006 ed.).
The 1986 Drug Act, like other federal sentencing stat-
utes, interacts with the Guidelines in an important way.
Like other sentencing statutes, it trumps the Guidelines.
Thus, ordinarily no matter what the Guidelines provide, a
judge cannot sentence an offender to a sentence beyond
the maximum contained in the federal statute setting
forth the crime of conviction. Similarly, ordinarily no
matter what range the Guidelines set forth, a sentencing
judge must sentence an offender to at least the minimum
prison term set forth in a statutory mandatory minimum.
See 28 U.S. C. §§994(a), (b)(1); USSG §5G1.1; Neal v.
United States, 516 U.S. 284, 289–290, 295 (1996).
Not surprisingly, the Sentencing Commission incorpo-
rated the 1986 Drug Act’s mandatory minimums into the
first version of the Guidelines themselves. Kimbrough,
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
supra, at 96–97. It did so by setting a base offense level
for a first-time drug offender that corresponded to the
lowest Guidelines range above the applicable mandatory
minimum. USSC, Report to the Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice Sys-
tem 53–54 (Oct. 2011) (2011 Report). Thus, the first
Guidelines Drug Quantity Table associated 500 grams
of powder cocaine with an offense level of 26, which for a
first-time offender meant a sentencing range of 63 to 78
months (just above the 5-year minimum), and it associated
5,000 grams of powder cocaine with an offense level of 32,
which for a first-time offender meant a sentencing range
of 121 to 151 months (just above the 10-year minimum).
USSG §2D1.1 (Oct. 1987). Further reflecting the 1986
Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso-
ciated an offense level of 26 with 5 grams of crack and an
offense level of 32 with 50 grams of crack. Ibid.
In addition, the Drug Quantity Table set offense levels
for small drug amounts that did not trigger the 1986 Drug
Act’s mandatory minimums so that the resulting Guide-
lines sentences would remain proportionate to the sen-
tences for amounts that did trigger these minimums. 2011
Report 54. Thus, the Table associated 400 grams of pow-
der cocaine (an amount that fell just below the amount
triggering the 1986 Drug Act’s 5-year minimum) with an
offense level of 24, which for a first-time offender meant a
sentencing range of 51 to 63 months (the range just below
the 5-year minimum). USSG §2D1.1 (Oct. 1987). Follow-
ing the 100-to-1 crack-to-powder ratio, the Table associated
four grams of crack (an amount that also fell just below
the amount triggering the 1986 Drug Act’s 5-year mini-
mum) with an offense level of 24. Ibid.
The Commission did this not because it necessarily
thought that those levels were most in keeping with past
sentencing practice or would independently have reflected
a fair set of sentences, but rather because the Commission
6 DORSEY v. UNITED STATES
Opinion of the Court
believed that doing so was the best way to keep similar
drug-trafficking sentences proportional, thereby satisfying
the Sentencing Reform Act’s basic “proportionality” objec-
tive. See Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov.
2011); 2011 Report 53–54, 349, and n. 845. For this rea-
son, the Commission derived the Drug Quantity Table’s
entire set of crack and powder cocaine offense levels by
using the 1986 Drug Act’s two (5- and 10-year) minimum
amounts as reference points and then extrapolating from
those two amounts upward and downward to set propor-
tional offense levels for other drug amounts. Ibid.
B
During the next two decades, the Commission and
others in the law enforcement community strongly criti-
cized Congress’ decision to set the crack-to-powder manda-
tory minimum ratio at 100-to-1. The Commission issued
four separate reports telling Congress that the ratio was
too high and unjustified because, for example, research
showed the relative harm between crack and powder
cocaine less severe than 100-to-1, because sentences em-
bodying that ratio could not achieve the Sentencing Re-
form Act’s “uniformity” goal of treating like offenders
alike, because they could not achieve the “proportionality”
goal of treating different offenders (e.g., major drug traf-
fickers and low-level dealers) differently, and because the
public had come to understand sentences embodying the
100-to-1 ratio as reflecting unjustified race-based differ-
ences. Kimbrough, supra, at 97–98; see, e.g., USSC,
Special Report to the Congress: Cocaine and Federal Sen-
tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC,
Special Report to Congress: Cocaine and Federal Sentenc-
ing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to
Congress: Cocaine and Federal Sentencing Policy 91, 103
(May 2002) (2002 Report); USSC, Report to Congress:
Cocaine and Federal Sentencing Policy 8 (May 2007) (2007
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
Report). The Commission also asked Congress for new
legislation embodying a lower crack-to-powder ratio. 1995
Report 198–200; 1997 Report 9–10; 2002 Report 103–
107; 2007 Report 6–9. And the Commission recommended
that the legislation “include” an “emergency amendment”
allowing “the Commission to incorporate the statutory
changes” in the Guidelines while “minimiz[ing] the lag
between any statutory and guideline modifications for
cocaine offenders.” Id., at 9.
In 2010, Congress accepted the Commission’s recom-
mendations, see 2002 Report 104; 2007 Report 8–9, and
n. 26, and enacted the Fair Sentencing Act into law. The
Act increased the drug amounts triggering mandatory
minimums for crack trafficking offenses from 5 grams to
28 grams in respect to the 5-year minimum and from 50
grams to 280 grams in respect to the 10-year minimum
(while leaving powder at 500 grams and 5,000 grams
respectively). §2(a), 124 Stat. 2372. The change had the
effect of lowering the 100-to-1 crack-to-powder ratio to 18-
to-1. (The Act also eliminated the 5-year mandatory
minimum for simple possession of crack. §3, 124 Stat.
2372.)
Further, the Fair Sentencing Act instructed the Com-
mission to “make such conforming amendments to the
Federal sentencing guidelines as the Commission deter-
mines necessary to achieve consistency with other guide-
line provisions and applicable law.” §8(2), id., at 2374.
And it directed the Commission to “promulgate the guide-
lines, policy statements, or amendments provided for in
this Act as soon as practicable, and in any event not later
than 90 days” after the new Act took effect. §8(1), ibid.
The Fair Sentencing Act took effect on August 3,
2010. The Commission promulgated conforming emergency
Guidelines amendments that became effective on Novem-
ber 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent
version of those Guidelines amendments took effect on
8 DORSEY v. UNITED STATES
Opinion of the Court
November 1, 2011. See 76 id., at 24960 (2011).
C
With this background in mind, we turn to the relevant
facts of the cases before us. Corey Hill, one of the peti-
tioners, unlawfully sold 53 grams of crack in March 2007,
before the Fair Sentencing Act became law. App. in No.
11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986
Drug Act, an offender who sold 53 grams of crack was
subject to a 10-year mandatory minimum. 21 U.S. C.
§841(b)(1)(A)(iii) (2006 ed.). Hill was not sentenced, how-
ever, until December 2010, after the Fair Sentencing Act
became law and after the new Guidelines amendments
had become effective. Hill App. 83–94. Under the Fair
Sentencing Act, an offender who sold 53 grams of
crack was subject to a 5-year, not a 10-year, minimum.
§841(b)(1)(B)(iii) (2006 ed., Supp. IV). The sentencing
judge stated that, if he thought that the Fair Sentencing
Act applied, he would have sentenced Hill to that Act’s 5-
year minimum. Id., at 69. But he concluded that the Fair
Sentencing Act’s lower minimums apply only to those who
committed a drug crime after August 3, 2010—the Act’s
effective date. Id., at 65, 68. That is to say, he concluded
that the new Act’s more lenient sentences did not apply
to those who committed a crime before August 3, even if
they were sentenced after that date. Hence, the judge sen-
tenced Hill to 10 years of imprisonment. Id., at 78. The
Court of Appeals for the Seventh Circuit affirmed. 417
Fed. Appx. 560 (2011).
The second petitioner, Edward Dorsey (who had previ-
ously been convicted of a drug felony), unlawfully sold 5.5
grams of crack in August 2008, before the Fair Sentencing
Act took effect. App. in No. 5683, pp. 9, 48–49, 57–58
(hereinafter Dorsey App.). Under the 1986 Drug Act, an
offender such as Dorsey with a prior drug felony who sold
5.5 grams of crack was subject to a 10-year minimum.
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
§841(b)(1)(B)(iii) (2006 ed.). Dorsey was not sentenced,
however, until September 2010, after the new Fair Sen-
tencing Act took effect. Id., at 84–95. Under the Fair
Sentencing Act, such an offender who sold 5.5 grams of
crack was not subject to a mandatory minimum at all, for
5.5 grams is less than the 28 grams that triggers the new
Act’s mandatory minimum provisions. §841(b)(1)(B)(iii)
(2006 ed., Supp. IV). Dorsey asked the judge to apply the
Fair Sentencing Act’s more lenient statutory penalties.
Id., at 54–55.
Moreover, as of Dorsey’s sentencing in September 2010,
the unrevised Guidelines (reflecting the 1986 Drug Act’s
old minimums) were still in effect. The Commission had
not yet finished revising the Guidelines to reflect the
new, lower statutory minimums. And the basic sentencing
statute, the Sentencing Reform Act, provides that a judge
shall apply the Guidelines that “are in effect on the date
the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii).
The sentencing judge, however, had the legal authority
not to apply the Guidelines at all (for they are advisory).
But he also knew that he could not ignore a minimum
sentence contained in the applicable statute. Dorsey App.
67–68. The judge noted that, even though he was sentenc-
ing Dorsey after the effective date of the Fair Sentencing
Act, Dorsey had committed the underlying crime prior to
that date. Id., at 69–70. And he concluded that the 1986
Drug Act’s old minimums, not the new Fair Sentencing
Act, applied in those circumstances. Ibid. He consequently
sentenced Dorsey to the 1986 Drug Act’s 10-year man-
datory minimum term. Id., at 80. The Court of Appeals
for the Seventh Circuit affirmed, United States v. Fisher,
635 F.3d 336 (2011), and denied rehearing en banc, 646
F.3d 429 (2011) (per curiam); see also United States v.
Holcomb, 657 F.3d 445 (CA7 2011).
The Courts of Appeals have come to different conclu-
sions as to whether the Fair Sentencing Act’s more lenient
10 DORSEY v. UNITED STATES
Opinion of the Court
mandatory minimums apply to offenders whose unlawful
conduct took place before, but whose sentencing took place
after, the date that Act took effect, namely, August 3,
2010. Compare United States v. Douglas, 644 F.3d 39,
42–44 (CA1 2011) (Act applies), and United States v.
Dixon, 648 F.3d 195, 203 (CA3 2011) (same), with 635
F. 3d, at 339–340 (Act does not apply), United States v.
Sidney, 648 F.3d 904, 910 (CA8 2011) (same), and
United States v. Tickles, 661 F.3d 212, 215 (CA5 2011)
(per curiam) (same). In light of that disagreement, we
granted Hill’s and Dorsey’s petitions for certiorari. Since
petitioners and the Government both take the position
that the Fair Sentencing Act’s new minimums do apply
in these circumstances, we appointed as amicus curiae
Miguel Estrada to argue the contrary position. He has ably
discharged his responsibilities.
II
A
The timing issue before us is difficult in part because
relevant language in different statutes argues in opposite
directions. See Appendix A, infra. On the one hand, a
federal saving statute, Act of Feb. 25, 1871 (1871 Act), §4,
16 Stat. 432, phrased in general terms, provides that a
new criminal statute that “repeal[s]” an older criminal
statute shall not change the penalties “incurred” under
that older statute “unless the repealing Act shall so ex-
pressly provide.” 1 U.S. C. §109. Case law makes clear
that the word “repeal” applies when a new statute simply
diminishes the penalties that the older statute set forth.
See Warden v. Marrero, 417 U.S. 653, 659–664 (1974); see
also United States v. Tynen, 11 Wall. 88, 92 (1871). Case
law also makes clear that penalties are “incurred” under
the older statute when an offender becomes subject to
them, i.e., commits the underlying conduct that makes the
offender liable. See United States v. Reisinger, 128 U.S.
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
398, 401 (1888); Great Northern R. Co. v. United States,
208 U.S. 452, 464–470 (1908).
On the other hand, the Sentencing Reform Act says
that, regardless of when the offender’s conduct occurs, the
applicable Guidelines are the ones “in effect on the date
the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii).
And the Fair Sentencing Act requires the Commission
to change the Guidelines in the wake of the Act’s new
minimums, making them consistent with “other guideline
provisions and applicable law.” §8(2), 124 Stat. 2374.
Courts that have held that they must apply the old,
higher 1986 Drug Act minimums to all pre-Act offenders,
including those sentenced after the Fair Sentencing Act
took effect, have emphasized that the 1871 Act requires
that result unless the Fair Sentencing Act either expressly
says or at least by fair implication implies the contrary.
See 635 F. 3d, at 339–340; Sidney, supra, at 906–908;
Tickles, supra, at 214–215; see also Holcomb, supra, at
446–448 (opinion of Easterbrook, J.). Courts that have
concluded that the Fair Sentencing Act’s more lenient
penalties apply have found in that Act, together with the
Sentencing Reform Act and other related circumstances,
indicia of a clear congressional intent to apply the new
Act’s minimums. See Douglas, supra, at 42–44; Dixon,
supra, at 199–203; see also Holcomb, 657 F. 3d, at 454–
457 (Williams, J., dissenting from denial of rehearing en
banc); id., at 461–463 (Posner, J., dissenting from denial
of rehearing en banc). We too take the latter view. Six
considerations, taken together, convince us that Congress
intended the Fair Sentencing Act’s more lenient penalties
to apply to those offenders whose crimes preceded August
3, 2010, but who are sentenced after that date.
First, the 1871 saving statute permits Congress to apply
a new Act’s more lenient penalties to pre-Act offenders
without expressly saying so in the new Act. It is true
that the 1871 Act uses the words “expressly provide.” 1
12 DORSEY v. UNITED STATES
Opinion of the Court
U. S. C. §109. But the Court has long recognized that this
saving statute creates what is in effect a less demanding
interpretive requirement. That is because statutes en-
acted by one Congress cannot bind a later Congress,
which remains free to repeal the earlier statute, to exempt
the current statute from the earlier statute, to modify the
earlier statute, or to apply the earlier statute but as modi-
fied. See, e.g., Fletcher v. Peck, 6 Cranch 87, 135 (1810);
Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). And
Congress remains free to express any such intention either
expressly or by implication as it chooses.
Thus, the Court has said that the 1871 Act “cannot
justify a disregard of the will of Congress as manifested
either expressly or by necessary implication in a subse-
quent enactment.” Great Northern R. Co., supra, at 465
(emphasis added). And in a comparable context the Court
has emphasized that the Administrative Procedure Act’s
use of the word “expressly” does not require Congress to
use any “magical passwords” to exempt a later statute
from the provision. Marcello v. Bonds, 349 U.S. 302,
310 (1955). Without requiring an “express” statement, the
Court has described the necessary indicia of congressional
intent by the terms “necessary implication,” “clear impli-
cation,” and “fair implication,” phrases it has used inter-
changeably. Great Northern R. Co., supra, at 465, 466;
Hertz v. Woodman, 218 U.S. 205, 218 (1910); Marrero,
supra, at 660, n. 10. One Member of the Court has said
we should determine whether “the plain import of a later
statute directly conflicts with an earlier statute,” and, if
so, “the later enactment governs, regardless of its compli-
ance with any earlier-enacted requirement of an express
reference or other ‘magical password.’ ” Lockhart v. United
States, 546 U.S. 142, 149 (2005) (SCALIA, J., concurring).
Hence, the Court has treated the 1871 Act as setting
forth an important background principle of interpretation.
The Court has also assumed Congress is well aware of the
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
background principle when it enacts new criminal stat-
utes. E.g., Great Northern R. Co., supra, at 465; Hertz,
supra, at 217; cf. Marcello, supra, at 310. And the prin-
ciple requires courts, before interpreting a new criminal
statute to apply its new penalties to a set of pre-Act of-
fenders, to assure themselves that ordinary interpretive
considerations point clearly in that direction. Words such
as “plain import,” “fair implication,” or the like reflect the
need for that assurance. And it is that assurance, which
we shall assume is conveyed by the phrases “plain import”
or “fair implication,” that we must look for here.
Second, the Sentencing Reform Act sets forth a special
and different background principle. That statute says that
when “determining the particular sentence to be imposed”
in an initial sentencing, the sentencing court “shall con-
sider,” among other things, the “sentencing range” estab-
lished by the Guidelines that are “in effect on the date
the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii)
(emphasis added). Although the Constitution’s Ex Post
Facto Clause, Art. I, §9, cl. 3, prohibits applying a new
Act’s higher penalties to pre-Act conduct, it does not pro-
hibit applying lower penalties. See Calder v. Bull, 3 Dall.
386, 390–391 (1798); Collins v. Youngblood, 497 U.S.
37, 41–44 (1990). The Sentencing Commission has conse-
quently instructed sentencing judges to “use the Guide-
lines Manual in effect on the date that the defendant is
sentenced,” regardless of when the defendant committed
the offense, unless doing so “would violate the ex post facto
clause.” USSG §1B1.11. And therefore when the Com-
mission adopts new, lower Guidelines amendments, those
amendments become effective to offenders who committed
an offense prior to the adoption of the new amendments
but are sentenced thereafter. Just as we assume Congress
was aware of the 1871 Act’s background norm, so we
assume that Congress was aware of this different back-
ground sentencing principle.
14 DORSEY v. UNITED STATES
Opinion of the Court
Third, language in the Fair Sentencing Act implies
that Congress intended to follow the Sentencing Reform Act
background principle here. A section of the Fair Sentenc-
ing Act entitled “Emergency Authority for United States
Sentencing Commission” requires the Commission to prom-
ulgate “as soon as practicable” (and not later than 90
days after August 3, 2010) “conforming amendments” to
the Guidelines that “achieve consistency with other guide-
line provisions and applicable law.” §8, 124 Stat. 2374.
Read most naturally, “applicable law” refers to the law as
changed by the Fair Sentencing Act, including the provi-
sion reducing the crack mandatory minimums. §2(a),
id., at 2372. As the Commission understood this provi-
sion, achieving consistency with “other guideline provi-
sions” means reducing the base offense levels for all crack
amounts proportionally (using the new 18-to-1 ratio), in-
cluding the offense levels governing small amounts of
crack that did not fall within the scope of the mandatory
minimum provisions. 75 Fed. Reg. 66191. And consis-
tency with “other guideline provisions” and with prior Com-
mission practice would require application of the new
Guidelines amendments to offenders who committed their
offense prior to the new amendments’ effective date but
were sentenced thereafter. See USSG §1B1.11(a); e.g.,
USSG App. C, amdts. 706, 711 (Supp. Nov. 2004–Nov.
2007); see also Memorandum from G. Schmitt, L. Reed, &
K. Cohen, USSC, to Chair Hinojosa et al., Subject: Analy-
sis of the Impact of the Crack Cocaine Amendment if
Made Retroactive 23 (Oct. 3, 2007). Cf. USSG App. C,
amdt. 571 (amendment increasing restitution, which may
present ex post facto and one-book-rule concerns, would
apply only to defendants sentenced for post-amendment
offenses), discussed post, at 5 (SCALIA, J., dissenting).
Fourth, applying the 1986 Drug Act’s old mandatory
minimums to the post-August 3 sentencing of pre-August 3
offenders would create disparities of a kind that Congress
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
enacted the Sentencing Reform Act and the Fair Sentenc-
ing Act to prevent. Two individuals with the same number
of prior offenses who each engaged in the same criminal
conduct involving the same amount of crack and were
sentenced at the same time would receive radically differ-
ent sentences. For example, a first-time post-Act offender
with five grams of crack, subject to a Guidelines range of
21 to 27 months, could receive two years of imprisonment,
while an otherwise identical pre-Act offender would have
to receive the 5-year mandatory minimum. Compare
USSG §2D1.1(c) (Nov. 2011) with 21 U.S. C. §841(b)(1)(B)
(2006 ed.). A first-time post-Act 50-gram offender would
be subject to a Guidelines range of less than six years of
imprisonment, while his otherwise identical pre-Act coun-
terpart would have to receive the 10-year mandatory
minimum. Compare USSG §2D1.1(c) (Nov. 2011) with 21
U.S. C. §841(b)(1)(A) (2006 ed.).
Moreover, unlike many prechange/postchange discrep-
ancies, the imposition of these disparate sentences in-
volves roughly contemporaneous sentencing, i.e., the same
time, the same place, and even the same judge, thereby
highlighting a kind of unfairness that modern sentenc-
ing statutes typically seek to combat. See, e.g., 28
U.S. C. §991(b)(1)(B) (purposes of Guidelines-based sentencing
include “avoiding unwarranted sentencing disparities
among defendants with similar records who have been
found guilty of similar criminal conduct”); S. Rep. No. 98–
223, p. 74 (1983) (explaining rationale for using same,
current Guidelines for all roughly contemporaneous sen-
tencings). Further, it would involve imposing upon the
pre-Act offender a pre-Act sentence at a time after Con-
gress had specifically found in the Fair Sentencing Act
that such a sentence was unfairly long.
Finally, one cannot treat such problems as if they were
minor ones. Given the 5-year statute of limitations for
federal drug offenses, the 11-month median time between
16 DORSEY v. UNITED STATES
Opinion of the Court
indictment and sentencing for those offenses, and the
approximately 5,000 federal crack offenders convicted
each year, many pre-Act offenders were not (and will not
be) sentenced until after August 3, 2010, when the new,
more lenient mandatory minimums took effect. See 18
U.S. C. §3282(a); Administrative Office of United States
Courts, Judicial Business of the United States Courts,
p. 272 (2010) (Table D–10); 2011 Report 191.
Fifth, not to apply the Fair Sentencing Act would do
more than preserve a disproportionate status quo; it would
make matters worse. It would create new anomalies—new
sets of disproportionate sentences—not previously present.
That is because sentencing courts must apply new Guide-
lines (consistent with the Fair Sentencing Act’s new min-
imums) to pre-Act offenders, see supra, at 13–14, and the
1986 Drug Act’s old minimums would trump those new
Guidelines for some pre-Act offenders but not for all of
them—say, pre-Act offenders who possessed crack in small
amounts not directly the subject of mandatory minimums.
Consider, for example, a first-time offender convicted of
possessing with intent to distribute four grams of crack.
No mandatory sentence, under the 1986 Drug Act or the
Fair Sentencing Act, applies to an offender possessing so
small an amount. Yet under the old law, the Commission,
charged with creating proportionate sentences, had created
a Guidelines range of 41 to 51 months for such an of-
fender, a sentence proportional to the 60 months that
the 1986 Drug Act required for one who trafficked five
grams of crack. See supra, at 5–6; USSG §2D1.1(c) (Nov.
2009).
The Fair Sentencing Act, however, requires the Com-
mission to write new Guidelines consistent with the new
law. The Commission therefore wrote new Guidelines that
provide a sentencing range of 21 to 27 months—about
two years—for the first-time, 4-gram offender. See USSG
§2D1.1(c) (Nov. 2011). And the Sentencing Reform Act
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
requires application of those new Guidelines to all of-
fenders (including pre-Act offenders) who are sentenced
once those new Guidelines take effect. See 18 U.S. C.
§3553(a)(4)(A)(ii). Those new Guidelines must take effect
and apply to a pre-Act 4-gram offender, for such an of-
fender was never subject to a trumping statutory 1986
Drug Act mandatory minimum. However, unless the Fair
Sentencing Act’s new, more lenient mandatory mini-
mums apply to pre-Act offenders, an otherwise identical of-
fender who possessed five grams would have to receive a
5-year sentence. See 21 U.S. C. §841(b)(1)(B) (2006 ed.,
Supp. IV).
For example, imagine that on July 1, 2010, both Smith
and Jones commit a crack crime identical but for the fact
that Smith possesses with intent to distribute four grams
of crack and Jones five grams. Both are sentenced on
December 1, 2010, after the Fair Sentencing Act and the
new Guidelines take effect. Smith’s Guidelines sentence
would be two years, but unless the Fair Sentencing Act
applies, Jones’s sentence would have to be five years. The
difference of one gram would make a difference, not of only
one year as it did before enactment of the Fair Sentencing
Act, but instead of three years. Passage of the new Act,
designed to have brought about fairer sentences, would
here have created a new disparate sentencing “cliff.”
Nor can one say that the new Act would produce dispro-
portionalities like this in only a few cases. In fiscal year
2010, 17.8 percent of all crack offenders were convicted of-
offenses not subject to the 1986 Drug Act’s minimums.
2011 Report 191. And since those minimums apply only to
some drug offenders and they apply in different ways, one
can find many similar examples of disproportionalities.
See Appendix B, infra. Thus, application of the 1986 Drug
Act minimums to pre-Act offenders sentenced after the
new Guidelines take effect would produce a crazy quilt of
sentences, at odds with Congress’ basic efforts to achieve
18 DORSEY v. UNITED STATES
Opinion of the Court
more uniform, more proportionate sentences. Congress,
when enacting the Fair Sentencing Act, could not have
intended any such result.
Sixth, we have found no strong countervailing considera-
tion. Amicus and the dissent argue that one might read
much of the statutory language we have discussed as
embodying exceptions, permitting the old 1986 Drug Act
minimums to apply to pre-Act offenders sentenced after
August 3, 2010, when the Fair Sentencing Act took effect.
The words “applicable law” in the new Act, for example,
could, linguistically speaking, encompass the 1986 Drug
Act minimums applied to those sentenced after August 3.
Post, at 4–6 (SCALIA, J., dissenting). Moreover, Congress
could have insisted that the Commission write new Guide-
lines with special speed to assure itself that new, post-
August 3 offenders—but not old, pre-August 3 offenders—
would receive the benefit of the new Act. Post, at 6–8.
Further, amicus and the dissent note that to apply the
new Act’s minimums to the old, pre-August 3 offenders
will create a new disparity—one between pre-Act offenders
sentenced before August 3 and those sentenced after that
date. Post, at 9.
We do not believe that these arguments make a critical
difference. Even if the relevant statutory language can
be read as amicus and the dissent suggest and even if
Congress might have wanted Guidelines written speedily
simply in order to apply them quickly to new offenders,
there is scant indication that this is what Congress did
mean by the language in question nor that such was in
fact Congress’ motivation. The considerations we have set
forth, supra, at 13–17 and this page, strongly suggest the
contrary.
We also recognize that application of the new minimums
to pre-Act offenders sentenced after August 3 will create
a new set of disparities. But those disparities, reflecting a
line-drawing effort, will exist whenever Congress enacts a
Cite as: 567 U. S. ____ (2012) 19
Opinion of the Court
new law changing sentences (unless Congress intends re-
opening sentencing proceedings concluded prior to a new
law’s effective date). We have explained how in federal
sentencing the ordinary practice is to apply new penalties
to defendants not yet sentenced, while withholding that
change from defendants already sentenced. Supra, at 13;
compare 18 U.S. C. §3553(a)(4)(A)(ii) with §3582(c). And
we have explained how, here, continued application of
the old 1986 Drug Act minimums to those pre-Act offend-
ers sentenced after August 3 would make matters worse.
Supra, at 16–18. We consequently conclude 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.
For these reasons considered as a whole, we conclude
that Congress intended the Fair Sentencing Act’s new,
lower mandatory minimums to apply to the post-Act
sentencing of pre-Act offenders. That is the Act’s “plain
import” or “fair implication.”
B
We add one final point. Several arguments we have
discussed involve the language of statutes that determine
how new Guidelines take effect. Supra, at 13–14. What
about those who committed an offense prior to August 3
and were sentenced after August 3 but before November 1,
2010—a period after the new Act’s effective date but before
the new Guidelines first took effect? Do the Fair Sentenc-
ing Act’s new mandatory minimums apply to them?
In our view, the new Act’s lower minimums apply to
them as well. Our reason is that the statute simply in-
structs the Commission to promulgate new Guidelines “as
soon as practicable” (but no later than 90 days after the
Act took effect). §8(1), 124 Stat. 2374. As far as Congress
was concerned, the Commission might have (having
prepared new Guidelines in advance) promulgated those
20 DORSEY v. UNITED STATES
Opinion of the Court
Guidelines within a few days—perhaps on August 3 itself.
At the same time, the Commission possesses ample au-
thority to permit appropriate adjustments to be made in
the Guidelines sentences of those sentenced after August 3
but prior to the new Guidelines promulgation. See 28
U.S. C. §994(u) (power to make Guidelines reductions
retroactive); 76 Fed. Reg. 41333–41334 (2011) (amended
18-to-1 Guidelines made retroactive). In any event,
courts, treating the Guidelines as advisory, possess au-
thority to sentence in accordance with the new minimums.
For these reasons, if the Fair Sentencing Act’s new
minimums apply to all of those sentenced after August 3,
2010 (even if the new Guidelines were not yet ready), it is
possible to foresee a reasonably smooth transition. On the
other hand, it is difficult to foresee such a transition if
the new Act’s application is keyed to a later date, thereby
leaving the courts unable to take the new Act fully into
account, particularly when that circumstance might create
additional disparities and uncertainties that courts and
the Commission may be helpless to correct. We have no
reason to believe Congress would have wanted to impose
an unforeseeable, potentially complex application date.
* * *
We vacate the Court of Appeals’ judgments and remand
these cases for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 567 U. S. ____ (2012) 21
Appendix A to opinionCourt Court
Opinion of the of the
APPENDIXES
A
Act of Feb. 25, 1871, §4, 16 Stat. 432, 1 U.S. C. §109
Repeal of statutes as affecting existing liabilities
“The repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or liabil-
ity 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 en-
forcement of such penalty, forfeiture, or liability.”
Sentencing Reform Act of 1984, 18 U.S. C. §3553(a)(4)
(A)(ii)
Imposition of a sentence
“FACTORS TO BE CONSIDERED IN IMPOSING A SEN-
TENCE. . . . The court, in determining the particu-
lar sentence to be imposed, shall consider . . . the
kinds of sentence and sentencing range established
for . . . the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . . that . . . are in effect on the date the
defendant is sentenced . . . .”
Fair Sentencing Act of 2010, §8, 124 Stat. 2374
Emergency Authority for United States Sentencing
Commission
“The United States Sentencing Commission shall—
“(1) promulgate the guidelines, policy statements, or
amendments provided for in this Act as soon as prac-
ticable, and in any event not later than 90 days after
the date of enactment of this Act, in accordance with
the procedure set forth in section 21(a) of the Sen-
22 DORSEY v. UNITED STATES
Appendix A to opinionCourt Court
Opinion of the of the
tencing Act of 1987 (28 U.S. C. [§]994 note), as
though the authority under that Act had not expired;
and
“(2) pursuant to the emergency authority provided
under paragraph (1), make such conforming amend-
ments to the Federal sentencing guidelines as the
Commission determines necessary to achieve con-
sistency with other guideline provisions and appli-
cable law.”
Cite as: 567 U. S. ____ (2012) 23
Appendix B to opinionCourt Court
Opinion of the of the
B
The following chart shows the sentencing scheme that
would result for first-time pre-Act crack offenders if the
1986 Drug Act’s old 100-to-1 mandatory minimums re-
main in effect after the Fair Sentencing Act’s new 18-to-1
Guidelines became effective. 21 U.S. C. §§841(b)(1)(A)–
(C) (2006 ed.); USSG §§2D1.1(c), 5G1.1(b) (Nov. 2011).
1986 Drug Act Minimums and Fair Sentencing Act Guide-
lines for Category I Offenders with No Prior Drug Felonies
Drug Mandatory Guidelines Sentence
Quantity Minimum Range
1g 0 months 10–16 10–16
2g 0 15–21 15–21
3g 0 21–27 21–27
4g 0 21–27 21–27
5g 60 21–27 60
10 g 60 27–33 60
15 g 60 33–41 60
20 g 60 41–51 60
25 g 60 51–63 60–63
35 g 60 63–78 63–78
50 g 120 63–78 120
100 g 120 63–78 120
150 g 120 78–97 120
200 g 120 97–121 120–121
500 g 120 121–151 121–151
1,500 g 120 151–188 151–188
The chart illustrates the disproportionate sentences that
such a scheme would create. See supra, at 16–18. For one
thing, it would create sentencing “cliffs” at the 1986 Act’s
old triggering amounts of 5 grams and 50 grams (where
the old minimums would entirely trump the new Guide-
lines), resulting in radically different Guidelines sentences
24 DORSEY v. UNITED STATES
Appendix B to opinionCourt Court
Opinion of the of the
for small differences in quantity. For another, because of
those “cliffs,” the scheme would create similar Guidelines
sentences for offenders who dealt in radically different
amounts of crack, e.g., 50 grams versus 500 grams.
To be sure, as amicus points out, Congress has provided
two mechanisms through which an offender may escape
an otherwise applicable mandatory minimum, diminishing
this problem for some offenders. First, an offender may
escape a minimum by providing substantial assistance
in the investigation or prosecution of another person. 18
U.S. C. §3553(e); Fed. Rule Crim. Proc. 35(b); see also 28
U.S. C. §994(n); USSG §5K1.1. Second, under 18 U.S. C.
§3553(f), drug offenders who have little or no criminal
history and who satisfy other requirements in the provi-
sion may obtain “safety valve” relief. See also USSG §5C1.2.
And because of these mechanisms a substantial portion
of first-time offenders are relieved of application of a manda-
tory minimum. However, offenders with a criminal his-
tory category of II or higher are ineligible for “safety
valve” relief; they escape application of a minimum at a
much lower percentage. See 2011 Report 193 (Table 8–8).
Crack Offender Categories by Application of 1986 Drug Act
Mandatory Min. (FY 2010)
Total with Percent with
Quantity Quantity Total Percent
Carrying Carrying Relieved of Relieved of
Offender Total Mandatory Mandatory Mandatory Mandatory
Category Offenders Min. Min. Min. Appl. Min. Appl.
I 1,055 890 84.4% 525 59.0%
II 556 445 80.0% 129 29.0%
III 865 703 81.3% 208 29.6%
IV 556 469 84.4% 124 26.4%
V 380 308 81.1% 89 28.9%
VI 1,345 1,086 80.7% 332 30.6%
All 4,751 3,905 82.2% 1,407 36.0%
Cite as: 567 U. S. ____ (2012) 25
Appendix B to opinionCourt Court
Opinion of the of the
Yet similar sentencing anomalies would result for re-
peat offenders if the 1986 Drug Act’s minimums remain in
effect after the Fair Sentencing Act’s Guidelines became
effective. Take, for example, Category II offenders.
1986 Drug Act Minimums and Fair Sentencing Act Guide-
lines for Category II Offenders with No Prior Drug Felonies
Drug Mandatory Guidelines Sentence
Quantity Minimum Range
1g 0 months 12–18 12–18
2g 0 18–24 18–24
3g 0 24–30 24–30
4g 0 24–30 24–30
5g 60 24–30 60
10 g 60 30–37 60
15 g 60 37–46 60
20 g 60 46–57 60
25 g 60 57–71 60–71
35 g 60 70–87 70–87
50 g 120 70–87 120
100 g 120 70–87 120
150 g 120 87–108 120
200 g 120 108–135 120–135
500 g 120 135–168 135–168
1,500 g 120 168–210 168–210
As the chart illustrates, for Category II offenders account-
able for 5 to 22 grams of crack or for 50 to 195 grams,
the 100-to-1 minimums would entirely trump the 18-to-1
Guidelines, producing the same anomalies—dissimilar sen-
tences for similar quantities and similar sentences for dis-
similar quantities—described above.
In contrast, a scheme with the Fair Sentencing Act’s 18-
to-1 minimums and new Guidelines produces the propor-
tionality in sentencing that Congress intended in enacting
26 DORSEY v. UNITED STATES
Appendix B to opinionCourt Court
Opinion of the of the
the Sentencing Reform Act and the Fair Sentencing Act.
Fair Sentencing Act Minimums and Guidelines for Cate-
gory II Offenders with No Prior Drug Felonies
Drug Mandatory Guidelines Sentence
Quantity Minimum Range
1g 0 months 12–18 12–18
2g 0 18–24 18–24
3g 0 24–30 24–30
4g 0 24–30 24–30
5g 0 24–30 24–30
10 g 0 30–37 30–37
15 g 0 37–46 37–46
20 g 0 46–57 46–57
25 g 0 57–71 57–71
35 g 60 70–87 70–87
50 g 60 70–87 70–87
100 g 60 70–87 70–87
150 g 60 87–108 87–108
200 g 60 108–135 108–135
500 g 120 135–168 135–168
1,500 g 120 168–210 168–210
Cite as: 567 U. S. ____ (2012) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–5683 and 11–5721
_________________
EDWARD DORSEY, SR., PETITIONER
11–5683 v.
UNITED STATES
COREY A. HILL, PETITIONER
11–5721 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2012]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
In the Fair Sentencing Act of 2010, 124 Stat. 2372,
Congress increased the threshold quantities of crack co-
caine required to trigger the 5- and 10-year mandatory
minimum penalties associated with offenses involving
the manufacture, distribution, or dispensation of the drug,
and eliminated the 5-year mandatory minimum previously
associated with simple possession of it. The Act is silent
as to whether these changes apply to defendants who
committed their offenses before, but whose sentencing
proceedings occurred after, its August 3, 2010, effective
date. In my view, the general saving statute, 1 U.S. C.
§109, dictates that the new, more lenient mandatory
minimum provisions do not apply to such pre-enactment
offenders.
I
The Court starts off on the right foot by acknowledging,
ante, at 10–11, that the ameliorative amendments at issue
2 DORSEY v. UNITED STATES
SCALIA, J., dissenting
here trigger application of the general saving statute.
Enacted in 1871 to reverse the common-law rule that the
repeal or amendment of a criminal statute would abate all
nonfinal convictions under the repealed or amended stat-
ute, see Warden v. Marrero, 417 U.S. 653, 660 (1974), the
saving statute provides in relevant part:
“The repeal of any statute shall not have the effect
to release or extinguish any penalty, forfeiture, or lia-
bility incurred under such statute, unless the repeal-
ing Act shall so expressly provide, and such statute
shall be treated as still remaining in force for the pur-
pose of sustaining any proper action or prosecution for
the enforcement of such penalty, forfeiture, or liabil-
ity.” 1 U.S. C. §109.
By reducing the statutory penalties for crack cocaine
offenses, the Fair Sentencing Act “repeal[ed]” the former
penalties; for defendants who committed their offenses
(and hence “incurred” the penalties) while the prior law
was in force, §109 directs that the prior law “shall be
treated as still remaining in force.”
Although §109 purports to require that subsequent
legislation opting out of its default rule must do so “ex-
pressly,” the Court correctly observes, ante, at 12, that
express-statement requirements of this sort are ineffec-
tive. See Lockhart v. United States, 546 U.S. 142, 147–
150 (2005) (SCALIA, J., concurring). Because “one legis-
lature cannot abridge the powers of a succeeding legisla-
ture,” Fletcher v. Peck, 6 Cranch 87, 135 (1810), a statute
is “alterable when the legislature shall please to alter it,”
Marbury v. Madison, 1 Cranch 137, 177 (1803). Conse-
quently, the express-statement requirement of §109 is
itself subject to repeal on the same terms as any other
statute, which is to say that a repeal may be accomplished
by implication. See, e.g., Marrero, supra, at 659–660,
n. 10; Great Northern R. Co. v. United States, 208 U. S.
Cite as: 567 U. S. ____ (2012) 3
SCALIA, J., dissenting
452, 465 (1908).
Understanding the interpretive problem posed by these
cases as one of implied repeal helps to explain the Court’s
observation, ante, at 13, that what is required to override
§109’s default rule is a clear demonstration of congres-
sional intent to do so. Admittedly, our cases have not
spoken with the utmost clarity on this point. In Marrero,
for example, we suggested that a “fair implication” from
a subsequently enacted statute would suffice, 417 U. S.,
at 660, n. 10, while in Hertz v. Woodman, 218 U.S. 205(1910), we used the phrase “clear implication,” id., at 218
(emphasis added); see also ibid. (“plain implication”). In
Great Northern R. Co., we split the difference, stating at
one point that §109 controls unless Congress expresses a
contrary intention “either expressly or by necessary impli-
cation in a subsequent enactment,” 208 U. S., at 465 (em-
phasis added), but suggesting at another point that a “fair
implication,” id., at 466, would do. In my view, the “fair
implication” formulation understates the burden properly
imposed on a defendant who would claim an implicit
exception from §109’s terms. Because the effect of such
an exception is to work a pro tanto repeal of §109’s appli-
cation to the defendant’s case, the implication from the
subsequently enacted statute must be clear enough to
overcome our strong presumption against implied repeals.
See, e.g., Matsushita Elec. Industrial Co. v. Epstein, 516
U.S. 367, 381 (1996); Posadas v. National City Bank, 296
U.S. 497, 503 (1936). Thus, we should conclude that
Congress has deviated from §109 (or any similar statute
establishing a background interpretive principle) only
when the “plain import of a later statute directly conflicts”
with it. Lockhart, supra, at 149 (SCALIA, J., concurring)
(emphasis added).
4 DORSEY v. UNITED STATES
SCALIA, J., dissenting
II
A
The considerations relied upon by the Court do not come
close to satisfying the demanding standard for repeal by
implication. As an initial matter, there is no persuasive
force whatever to the Court’s observation that continuing
to apply the prior mandatory minimums to pre-enactment
offenders would “involve imposing upon the pre-Act of-
fender a pre-Act sentence at a time after Congress had
specifically found in the Fair Sentencing Act that such a
sentence was unfairly long.” Ante, at 15. That is true
whenever Congress reduces a criminal penalty, and so is a
consequence that Congress affirmatively embraced when it
said in §109 that ameliorative amendments to criminal
statutes do not apply to pre-enactment conduct. Nor does
it matter that Congress has instructed district courts,
when applying the Federal Sentencing Guidelines, to ap-
ply the version in force on the date of sentencing, with
the object of reducing disparities in sentences between
similar defendants who are sentenced for the same con-
duct at the same time. See 18 U.S. C. §3553(a)(4)(A)(ii).
The presumption against implied repeals requires us to
give effect, if possible, to both §3553(a)(4)(A)(ii) and §109.
“The courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are ca-
pable of co-existence, it is the duty of the courts, absent
a clearly expressed congressional intention to the con-
trary, to regard each as effective.” Morton v. Mancari, 417
U.S. 535, 551 (1974). We may readily do so here by hold-
ing that §3553(a)(4)(A)(ii) applies to Guidelines amend-
ments, and §109 to statutory ones.
The Court also stresses that the Fair Sentencing Act
instructs the Sentencing Commission to promulgate “as
soon as practicable” (and not later than 90 days after
August 3, 2010) “such conforming amendments” to the
Sentencing Guidelines “as the Commission determines
Cite as: 567 U. S. ____ (2012) 5
SCALIA, J., dissenting
necessary to achieve consistency with other guideline
provisions and applicable law.” §8, 124 Stat. 2374. The
argument goes that, because the Commission implemented
this directive by reducing the Guidelines ranges for
crack cocaine offenses to track the 18-to-1 crack-to-powder
ratio reflected in the new mandatory minimums, see 75
Fed. Reg. 66191 (2010), and because the general rule is
that a sentencing court should apply the version of the
Guidelines in effect at the time of sentencing, see 18
U.S. C. §3553(a)(4)(A)(ii), Congress must have understood
that the new mandatory minimums would apply immedi-
ately, since otherwise there would be a mismatch between
the statutory penalties and Guidelines ranges.
That conclusion simply does not follow. For one thing,
the argument begs the very question presented here: What
is the “applicable law” relevant to pre-enactment offenders
who are sentenced after enactment? The Commission
could well have answered this question by concluding that,
in light of §109, the law applicable to such offenders is
the pre-Act mandatory minimums. It might therefore have
retained, as to those offenders, the existing Guidelines
ranges reflecting a higher crack-to-powder ratio. Although
rare, it is not unheard of for the Commission to establish
Guidelines whose application turns on the date of commis-
sion of the defendant’s offense. See United States Sen-
tencing Commission, Guidelines Manual §5E1.1(g)(1)
(Nov. 2011) (governing restitution for offenses committed
on or after November 1, 1997, and providing that the prior
version of the Guideline shall govern all other cases); id.,
§8B1.1(f)(1) (same for restitution obligations of organiza-
tional defendants). Of course, the Commission did not
interpret the Fair Sentencing Act’s directive in this man-
ner. But the possibility that it could (not to mention
the probability that it should) have done so illustrates the
folly of basing inferences about what Congress intended
when it passed the Fair Sentencing Act on decisions the
6 DORSEY v. UNITED STATES
SCALIA, J., dissenting
Commission would not make until several months later.1
Moreover, even if one takes it as given that the Com-
mission’s new crack cocaine Guidelines would apply the
lower 18-to-1 ratio to all defendants sentenced after the
new Guidelines were put in place, it would not follow that
Congress necessarily expected the new mandatory mini-
mums to apply to pre-enactment offenders. The directive
to update the Guidelines on an emergency basis is equally
consistent with Congress’s seeking to avoid a mismatch
between the Guidelines and the statutory penalties for
post-enactment offenders sentenced shortly after the Act’s
effective date.
Petitioners and the Government discount this explana-
tion, noting that because of the lags associated with in-
vestigating and prosecuting drug offenses, most of the
defendants sentenced on the 91st day after the Fair
Sentencing Act’s enactment were sure to be pre-Act of-
fenders. If Congress did not expect the new mandatory
minimums to apply to such offenders, they say, there
would have been no need to ensure that revised Guidelines
were in place so quickly. But most is not all, and it would
have been entirely sensible for Congress to worry that
some post-Act offenders—offenders clearly subject to the
new mandatory minimums—would nonetheless be sen-
tenced under outdated Guidelines if the Guidelines were
not revised in short order.
The 11-month median time between indictment and
——————
1 Congressional reliance on future Commission action might be plau-
sible if the Commission had a settled practice of tying reductions in
statutory mandatory minimums to immediately applicable reductions
in Guidelines ranges, without any distinction based on the timing of
the defendant’s offense. But the Court does not cite any such settled
practice, and I am not aware of any. Presumably there has been no
occasion for a practice to develop either way, since congressional
legislation reducing criminal penalties is, in this day and age, very
rare.
Cite as: 567 U. S. ____ (2012) 7
SCALIA, J., dissenting
sentencing for non-marijuana federal drug offenses, see
Administrative Office of United States Courts, Judicial
Business of the United States Courts, p. 272 (2010) (Table
D–10), does not establish that prompt issuance of new
Guidelines for post-Act offenders could not have been a
pressing concern. Because that is a median figure, it shows
that half of all drug defendants are sentenced sooner
than 11 months after being indicted. And it is only an
aggregate figure. For drug possession offenses—relevant
here because the Fair Sentencing Act eliminated the
mandatory minimum sentence previously applicable to
simple possession of crack cocaine, see §3, 124 Stat.
2372—the equivalent figure was just 5.4 months from
indictment to sentencing. The pace of criminal cases also
varies considerably from district to district. In the East-
ern District of Virginia, for instance, the median time from
indictment to sentencing for all criminal cases was just 3.6
months. See Judicial Business, supra, at 252 (Table D–6).
What is more, without the Fair Sentencing Act’s emer-
gency directive, amendments to the Guidelines to implement
the Act likely would not have been put in place until more
than a year after its passage.2 In the interim, a great
——————
2 In the ordinary course, the Commission may submit proposed
Guidelines amendments to Congress “at or after the beginning of a
regular session of Congress, but not later than the first day of May.” 28
U.S. C. §994(p). Unless disapproved by Congress, the proposed
amendments “take effect on a date specified by the Commission, which
shall be no earlier than 180 days after being so submitted and no
later than the first day of November of the calendar year in which
the amendment . . . is submitted.” Ibid. As a matter of practice, the
Commission has adopted November 1 as the default effective date for
its proposed amendments. See United States Sentencing Commission,
Rules of Practice and Procedure, Rule 4.1 (amended Aug. 2007).
Because the Fair Sentencing Act was enacted on August 3, 2010—after
May 1—there would have been no opportunity for the Commission to
submit proposed amendments to Congress until January 2011. Given
the 180-day waiting period, the amendments could not have gone into
force until the very end of June 2011 at the earliest. And in all likeli-
8 DORSEY v. UNITED STATES
SCALIA, J., dissenting
many post-Act offenders might have been sentenced under
the outdated Guidelines, even though they were clearly
entitled to take advantage of the statutory amendments.
Because the emergency authority conferred on the Com-
mission can reasonably be understood as directed at this
mismatch problem, it creates no clear implication that
Congress expected the new statutory penalties to apply to
pre-enactment offenders.
The Court’s last argument is that continuing to apply
the prior mandatory minimums to pre-enactment offend-
ers would lead to anomalous, disproportionate sentencing
results. It is true enough, as the Court notes, ante, at 16–
18, that applying the prior mandatory minimums in tan-
dem with the new Guidelines provisions—which track the
new, more lenient mandatory minimums—leads to a
series of “cliffs” at the mandatory minimum thresholds.
But this does not establish that Congress clearly meant
the new mandatory minimums to apply to pre-enactment
offenders. As noted above, supra, at 5–6, there is no rea-
son to take the Guidelines amendments ultimately prom-
ulgated by the Commission as a given when evaluating
what Congress would have understood when the Fair
Sentencing Act was enacted. The Commission could have
promulgated amendments that ameliorated this problem
by retaining the old Guidelines ranges for pre-enactment
offenders.
Moreover, although the cliffs produced by the mismatch
between Guidelines and statutory penalties are admittedly
inconsistent with the premise of the Guidelines system
that sentences should vary in proportion to the gravity
of the offense and the culpability of the offender, see 18
U.S. C. §3553(a)(1), (a)(2)(A), the same objection can be
lodged against any mandatory minimum that trumps an
otherwise applicable Guidelines range. And it is not as
——————
hood, they would not have been effective until November 1, 2011.
Cite as: 567 U. S. ____ (2012) 9
SCALIA, J., dissenting
though the results of continuing to apply the pre-Act
statutory penalties are so senseless as to establish that
Congress must not have intended them. Retaining the old
mandatory minimums ensures at least rough equivalence
in sentences for defendants who committed their crimes at
the same time, but were sentenced at different times—
even as it leads to disparities for defendants who are sen-
tenced at the same time, but committed their offenses
at different times. In light of this plausible basis for con-
tinuing to apply the prior law to pre-enactment offenders,
there is no reason to conclude that Congress necessarily
expected the new statutory penalties to apply.
B
Petitioners and the Government press a handful of ad-
ditional arguments which require only brief discussion.
They first contend that an intention to apply the new
mandatory minimums to pre-enactment offenders can be
inferred from §10 of the Fair Sentencing Act, 124 Stat.
2375, which instructs the Commission to study the effects
of the new law and make a report to Congress within five
years. The suggestion is that, if the statutory penalties do
not apply to pre-enactment offenders, then the Act would
have no effect on many defendants sentenced during
the study period, which would in turn undermine Con-
gress’s goal of compiling useful data. This is makeweight.
Whether or not the new mandatory minimums are held
applicable to pre-enactment offenders, they will be applied
to many post-enactment offenders during the study period,
and the Commission will have the opportunity to collect
useful data. The study provision simply has nothing to
say about the question at issue here.
The Government also notes that the Senate bill that
ultimately became the Fair Sentencing Act was based on
an earlier bill which contained a provision that would
have delayed the Act’s effective date until 180 days after
10 DORSEY v. UNITED STATES
SCALIA, J., dissenting
passage, and specifically provided that “[t]here shall be no
retroactive application of any portion of this Act.” H. R.
265, 111th Cong., 1st Sess., §11 (2009). Even if one is
inclined to base inferences about statutory meaning on
unenacted versions of the relevant bill, but see Hamdan v.
Rumsfeld, 548 U.S. 557, 668 (2006) (SCALIA, J., dissent-
ing), this argument from drafting history is unpersuasive.
That Congress considered and rejected a proposal that
would have delayed application of the Act until 180 days
after passage says nothing about whether the version
finally enacted applies to defendants whose criminal con-
duct pre-dated the Act. Moreover, the same bill would
have provided permissive authority for the Commission to
promulgate amended Guidelines on an emergency basis,
see §8(a), notwithstanding its delayed effective date provi-
sion. This point undercuts the argument that emergency
amendment authority and immediate application of the
new statutory penalties go hand-in-hand.
Petitioners finally appeal to the rule of lenity and the
canon of constitutional avoidance. But the rule of lenity
has no application here, because the background principle
supplied by §109 serves to remove the ambiguity that is a
necessary precondition to invocation of the rule. See Deal
v. United States, 508 U.S. 129, 135 (1993). The canon
of constitutional avoidance also has no application here.
Although many observers viewed the 100-to-1 crack-to-
powder ratio under the prior law as having a racially
disparate impact, see, e.g., United States Sentencing
Commission, Special Report to Congress: Cocaine and
Federal Sentencing Policy 8 (Apr. 1997), only intentional
discrimination may violate the equal protection component
of the Fifth Amendment’s Due Process Clause. See Ar­
lington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 264–265 (1977); Adarand Construc­
tors, Inc. v. Peña, 515 U.S. 200, 217 (1995). There is thus
no constitutional doubt triggered by application of the
Cite as: 567 U. S. ____ (2012) 11
SCALIA, J., dissenting
prior mandatory minimums, much less the sort of “serious
constitutional doub[t]” required to invoke the avoidance
canon. Clark v. Martinez, 543 U.S. 371, 381 (2005).
* * *
In the end, the mischief of the Court’s opinion is not the
result in this particular case, but rather the unpredictabil-
ity it injects into the law for the future. The Court’s de-
cision is based on “[s]ix considerations, taken together,”
ante, at 11, and we are not told whether any one of these
considerations might have justified the Court’s result in
isolation, or even the relative importance of the various
considerations. One of them (the Commission’s emergency
authority to issue conforming amendments to the Guide-
lines) is a particular feature of the statute at issue in these
cases, but another (the fact that applying the prior statu-
tory penalties alongside the new Guidelines leads to a
mismatch) is a general feature of a sentencing scheme
that calibrates Guidelines ranges to the statutory manda-
tory minimums for a given offense. Are we to conclude
that, after the Sentencing Reform Act, §109 has no further
application to criminal penalties, at least when statutory
amendments lead to modification of the Guidelines? Por-
tions of the Court’s opinion could be understood to sug-
gest that result, but the Court leaves us in suspense.
That is most unfortunate, because the whole point of
§109, as well as other provisions of the Dictionary Act, see
1 U.S. C. §§1–8, and the definitional provisions of the
federal criminal law, see 18 U.S. C. §§5–27 (2006 ed. and
Supp. IV), is to provide a stable set of background princi-
ples that will promote effective communication between
Congress and the courts. In this context, stability is en-
sured by a healthy respect for our presumption against
implied repeals, which demands a clear showing before we
conclude that Congress has deviated from one of these
background interpretive principles. Because the Court’s
12 DORSEY v. UNITED STATES
SCALIA, J., dissenting
result cannot be reconciled with this approach, I respect-
fully dissent.