The issue of the retroactivity of the “Fair Sentencing Act of 2010″ (FSA), which reduced penalties for crack cocaine offenses, has been the source of quite a bit of recent litigation. On February 9, 2011, the Fifth Circuit ruled, in United States v. Doggins, 633 F.3d 379 (5th Cir. 2011), that the FSA is NOT retroactive for defendants who were sentenced BEFORE the FSA was signed into law on August 3, 2010. The Fifth Circuit, and indeed nearly every other federal circuit, has ruled that the “Savings Statute” of Title 1 U.S.C. §109 requires the application of the old law in place at the time of the commission of the crime, in the absence of congressional intent either express or implied as to the retroactivity of a new law. Thus, in the Fifth Circuit, the FSA is not retroactive as to any defendant who was sentenced before August 3, 2010. What about defendants who committed their offense before August 3, 2010, but have not been convicted and/or sentenced until AFTER August 3, 2010?

In a surprising decision, on May 31, 2011, the First Circuit upheld a district court’s decision to apply the FSA retroactively to a defendant who committed his offense before August 3, 2010, but was sentenced after that date. In United States v. Douglas, F.3d , 2011 WL 2120163 (C.A.1 (Me.)), the First Circuit looked to congressional intent and determined that Congress would not have ordered the Sentencing Commission to promulgate emergency guideline amendments to implement the FSA if it had not wanted the act to apply to defendants whose cases were still pending conviction or sentence after August 3, 2010. The First Circuit stated that “the imposition of a minimum sentence that Congress has condemned as too harsh makes this an unusual case. 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. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.”

The First Circuit’s Douglas decision creates a circuit split with the Seventh Circuit’s decision in United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). The Seventh Circuit found that the FSA did not apply retroactively to defendants who committed their offense before August 3, 2010, but were sentenced later. The Fifth Circuit has not addressed the issue of the whether it will allow retroactive application of the FSA to defendants who committed their crime before August 3, 2010, but were or still are awaiting sentence. We do not know whether the Fifth Circuit will follow the First or Seventh Circuit’s lead on this issue. Given the circuit split, it is likely that the Government will take a writ of certiorari to the Supreme Court on the Douglas decision.

With all the uncertainty at the circuit level, it is little wonder that the district courts are all over the place with trying to decide whether the FSA applies retroactively to pending cases with defendants who committed offenses before the FSA was enacted but had or have not yet been sentenced. Judge Ponsor’s ruling, in United States v. Watts, F.Supp.2d , 2011 WL 1282542 (D.Mass.) from the District of Massachusetts, is truly outstanding and should serve as a model for any defense motion requesting application of the FSA to a currently pending crack case. Given the huge success with the Douglas decision in the First Circuit and the resulting circuit split, defense counsel should definitely consider filing a motion for application of the FSA to any crack cases where the defendant committed the offense prior to August 3, 2010, but has not yet been convicted and/or sentenced.

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1Evans, Circuit Judge, United States v. Anthony Fisher, 635F.3d336 (7th Cir. 2011).

In United States v. Cardenas-Guillen v. Hearst Newspapers, LLC (No. 10-40221), the Fifth Circuit held that the press and public have a First Amendment right of access to sentencing hearings and, therefore, the district court must give notice and an opportunity to be heard before closing or sealing a sentencing proceeding. This can be accomplished by, for example, docketing the motion to seal, or simply by placing a notice on the docket that there is a motion to close “a proceeding” and allowing interested parties to submit briefs or hold a hearing. The court explicitly rejected the government’s argument that security concerns justified the district court’s decision not to give

the press and public any notice or opportunity to be heard prior to closure

By way of background, the Houston Chronicle had moved to intervene in the criminal prosecution of a drug cartel leader, had requested that certain sealed documents be unsealed, and had also requested that the district court give notice and an opportunity to be heard before closing any future proceedings. The government then moved to close the sentencing hearing for reasons for public safety, and to not give notice to the public that the hearing was taking place. The court granted the government’s motion in a sealed order, and the court also sealed the government’s motion. The Houston Chronicle was able to find out when the sentencing hearing was scheduled and attempted to gain access to the courtroom with a handwritten motion. However, the court did not rule on that motion, denied access to the reporter and then denied the motion as moot after the closed sentencing proceeding had concluded.

USSC ADOPTS PERMANENT AMENDMENT IMPLEMENTING FSA

In April 2011, the Commission promulgated amendments to the federal sentencing guidelines covering drug trafficking offenses, firearms offenses, and other federal offenses.

In particular, it adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The Commission voted to set the triggering quantities of crack cocaine for the 5- and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers. As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

In other actions the Commission adopted amendments to:  increase penalties for certain firearms offenses. For example, the Commission voted to provide increased penalties for

certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.  implement the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on

the Commission’s website at www.ussc.gov.

The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.

On June 30, 2011, the United States Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines implementing the FSA’s 18:1 crack/powder ratio. Retroactivity of the amendment will become effective on November 1, 2011, the same day that the proposed permanent amendment would take effect, unless Congress acts to disapprove the amendment.

Unfortunately, the Commission’s vote to give retroactive application to the proposed amendments to the guidelines does not give retroactive effect to the FSA itself. Many crack offenders will still be required under federal law to serve mandatory 5- or 10-year sentences because of the amount of crack cocaine involved in their offenses.

According to the Commission’s June 30 news release, approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the FSA amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s news release lists a number of factors that were considered during its deliberations, including the purpose of the amendment implementing the FSA, which lowers the penalties for crack cocaine offenses, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.

According to the news release, after the Commission voted to give retroactive effect to its 2007 crack cocaine amendment, 16,433 motions for a reduced sentence were granted by federal district courts throughout the country. The Commission has conducted a study of the recidivism rate of those offenders who received a reduced sentence as a result of the 2007 amendment as compared to a similarly situated group of federal crack cocaine offenders who served their normal term of imprisonment. It has determined that there is no statistically significant difference in recidivism rates between the two groups of offenders.