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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 involved. 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 powder 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, 124Stat. 2372. The new statute took effect on
August 3, 2010. The question here is whether the Act’s more
lenient penalty provisions apply to offenders 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
Congress 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 proportionality 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
enacted 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 established, 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, 98Stat. 1987. That statute created a federal
Sentencing Commission instructed to write guidelines that 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 sentencing. 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 sentencing 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 depending 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 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), 100Stat. 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 distribute 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
statutes, 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
incorporated the 1986 Drug Act’s mandatory minimums into the
first version of the Guidelines themselves.
Kimbrough,
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 System 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 associated 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 Guidelines
sentences would remain proportionate to the sentences for amounts
that did trigger these minimums. 2011 Report 54. Thus, the Table
associated 400 grams of powder 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).
Following 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 minimum) 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 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. See
Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov.
2011); 2011 Report 53–54, 349, and n. 845. For this
reason, 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 proportional offense levels for other
drug amounts.
Ibid.
B
During the next two decades, the Commission
and others in the law enforcement community strongly criticized
Congress’ decision to set the crack-to-powder mandatory
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 embodying that ratio could not achieve the Sentencing
Reform 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 traffickers 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 differences.
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 Sentencing
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 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 recommendations, 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), 124Stat. 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, 124Stat.
2372.)
Further, the Fair Sentencing Act instructed the
Commission to “make such conforming amendments to the Federal
sentencing guidelines as the Commission determines necessary to
achieve consistency with other guideline provisions and applicable
law.” §8(2),
id., at 2374. And it directed the
Commission to “promulgate the guidelines, 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 November 1, 2010. 75 Fed. Reg.
66188 (2010). A permanent version of those Guidelines amendments
took effect on 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
petitioners, 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,
however, 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
previously 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. §841(b)(1)(B)(iii) (2006
ed.). Dorsey was not sentenced, however, until September 2010,
after the new Fair Sentencing 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 sentencing
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
conclusions as to whether the Fair Sentencing Act’s more
lenient 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,
16Stat. 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 expressly
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.
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), 124Stat.
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 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 modified. 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
subsequent 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 implication,” and
“fair implication,” phrases it has used
interchangeably.
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 compliance 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 background
principle when it enacts new criminal statutes.
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 offenders,
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 consider,” among other things, the
“sentencing range” established 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 prohibit 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
consequently instructed sentencing judges to “use the
Guidelines 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
Commission 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 background sentencing principle.
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 Sentencing 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 guideline provisions and
applicable law.” §8, 124Stat. 2374. Read most naturally,
“applicable law” refers to the law as changed by the
Fair Sentencing Act, including the provision reducing the crack
mandatory minimums. §2(a),
id., at 2372. As the
Commission understood this provision, achieving consistency with
“other guideline provisions” 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: Analysis 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 enacted the Sentencing Reform Act and the Fair Sentencing
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 different 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 counterpart 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
discrepancies, the imposition of these disparate sentences involves
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 sentencings). Further, it would involve
imposing upon the pre-Act offender a pre-Act sentence at a time
after Congress 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 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 Guidelines
(consistent with the Fair Sentencing Act’s new minimums) 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
Commission 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 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 offender 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
disproportionalities 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 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
consideration.
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 Guidelines 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 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
offenders 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
Sentencing 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
instructs the Commission to promulgate new Guidelines “as
soon as practicable” (but no later than 90 days after the Act
took effect). §8(1), 124Stat. 2374. As far as Congress was
concerned, the Commission might have (having prepared new
Guidelines in advance) promulgated those Guidelines within a few
days—perhaps on August 3 itself. At the same time, the
Commission possesses ample authority 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 authority 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.
APPENDIXES
A
Act of Feb. 25, 1871, §4, 16Stat. 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 liability incurred under such statute, unless the repealing Act
shall so expressly provide, and such statute shall be treated as
still remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of such penalty,
forfeiture, or liability.”
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, 124Stat.
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
practicable, 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 Sentencing 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 amendments to
the Federal sentencing guidelines as the Commission determines
necessary to achieve consistency with other guideline provisions
and appli-cable law.”
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 remain 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 Guidelines for Category I Offenders with No Prior Drug
Felonies
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 Guidelines), resulting in radically different
Guidelines sentences 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 provision 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)
Yet similar sentencing anomalies would result
for repeat 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 Guidelines for Category II Offenders with No Prior Drug
Felonies
As the chart illustrates, for Category II
offenders accountable 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
proportionality in sentencing that Congress intended in enacting
the Sentencing Reform Act and the Fair Sentencing Act.
Fair Sentencing Act Minimums and Guidelines
for Category II Offenders with No Prior Drug
Felonies