by Tommy Walker, USP Lewisburg, and Craig Coscarelli

We have received several questions concerning Career Offender status, mandatory minimums, cross references and 851 enhancements in regards to the Fair Sentencing Act of 2010 (“FSA”). With apologies in advance for the length of this message, please bear with it, as it contains a lot of what we hope will be helpful information for you in handling your crack cocaine case.


On August 3, 2010 the President signed into law the FSA under the title of “An Act to restore fairness to Federal Cocaine Sentencing.” The term “restore” is instructive when interpreting a statute. See Carr v. United States, 560 U.S. (2010)(“Congress’ use of a verb tense is significant in construing a federal statute’s temporal reach”). Unfortunately, Congress did not expressly elect to make the change in the FSA retroactive. See 1 U.S.C. 109 (the so-called “Saving Clause”). Thus, it appears that defendants who committed their offenses before the effective date of the Act on August 3, 2010, will still be subject to the old 100:1 penalties. However, no Court has addressed this type of argument. In addition, one must understand Landgraf v. USI Film, 511 U.S. 244(1995) and retroactive effect. But see United States v. Rojas, No.10-14662 (11th Cir. 6/24/11); United States v. Douglas, No. 10-2341 (1st Cir. 5/31/11); and United States v. Fisher, 635 F.3d 336 (7th Cir. 2011), concluding that the FSA applies to defendants who had not yet been sentenced by the date of the FSA’s enactment.

On June 30, 2011, the U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the Federal sentencing Guidelines that implements the FSA. Retroactivity of the amendment will become effective on November 1, 2011 – The same day that the proposed permanent amendment would take effect – unless Congress gets to disapprove the amendment.

Notable, not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission’s vote to give retroactive application to the proposed amendments to the Federal Sentencing Guideline does not give retroactive effect to the FSA. Only Congress can make a statute retroactive. With that said, many crack offenders will still be required under Federal Law to serve mandatory Five, Ten, of Life sentence(s) because of the amount of crack cocaine involved in their offenses because of Career Offender status, cross references or 851 enhancements.


First, there is a difference between the Law/Statute and the Guideline. Many defendants confuse the two. As stated above the FSA changed the Law, which is not retroactive. The FSA also changed the Sentencing Guidelines, which recently became retroactive. On June 23, 2011, H.R. 2316 was introduced to the House. It will “Clarify” whether Congress intended the FSA to apply to cases already final. Because, the Guidelines “did not make the FSA retroactive” and they cannot. In sum, the retroactivity issue on June 30th will not affect mandatory minimums, for example, if you were sentenced to a 5 year mandatory minimum for 5-grams of crack cocaine in 2005, the new Amendment “will not affect” your sentence.

Second, there is a difference between pre-Apprendi defendants and post-Apprendi defendants. A critical fact overlooked in most claims. For most pre-Apprendi defendants, there was but a single statutory offense under 841(a), regardless of drug quantity, and the question of which provision of 841(b) applied was merely one of sentencing, not one of which offense was committed. Therefore, any defendant convicted of a substantive violation of 841(a), or of conspiracy under 841 to commit a substantive violation of 841(a), was exposed, statutorily, to the full range of punishment outlined in 841(b), from a zero to life imprisonment, (meaning there was no mandatory minimum sentence for a pre-Apprendi defendant). On the other hand, in a post-Apprendi era, a 841(a) offense is found to describe three separate and distinct offenses, based on the determination of 841(b) threshold drug quantity by the jury as an element of the offense. Once the threshold drug quantities in 841(b)(1)(A), (B) and (C) became elements of the three separate offenses, rather than mere sentencing factors, a post-Apprendi defendant could be exposed to a mandatory minimum of 5, 10 or life imprisonment. This legal conflict was not considered by the U.S. Sentencing Commission; or the FSA. Cf., Depierre v. United States, No. 09-1533 (6/9/11)(“The Statute provides a mandatory 10- year minimum sentence for certain drug offenses involving . . .50 grams or more of [Cocaine Base]”). Id.

Finally, there is a difference between Pre-Booker era and the Post-Booker era defendants. The Supreme Court’s solution in United States v. Booker, 543 U.S. 220 (2005), was to make the Guidelines advisory and return fact finding for sentencing purpose from the jury to the sentencing Judge. The Court accomplished this by striking down the provisions making the Guidelines mandatory. Id. at 245. As a result, the maximum sentence was no longer fixed by mandatory Guidelines, but by the statute. Even so, the court recognized that the Sixth Amendment required that any fact necessary to justify the statutory maximum would still have to be submitted to the jury. Id. at 259-60.


Under an advisory-Guideline system, a court is no longer required to apply a “mandatory” Career Offender status or a cross reference. After having considered other relevant sentencing factors under 18 U.S.C. 3553(a), the court can impose a sentence that it believes is sufficient, but not greater than necessary, to comply with the purpose of the statute. See e.g., United States v. McGee, 533 F 3d 225, 230 (2d Cir. 2009)(per curium)(holding that a defendant who was designated a Career Offender but was granted a departure from those Guidelines such that he was ultimately sentenced based on §2D1.1 of the Guidelines was eligible for a reduced sentence).

Under the Guidelines, a court determines whether a defendant is a Career Offender and if he is, calculates the sentence under §4B1.1. They may rely on the sentencing range prescribed for a defendant of a different criminal history category, i.e.,, the § 2D1.1 sentencing range, but only if the court determines that the criminal history category “substantially over represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes[.]” U.S.S.G. 4A1.3(b)(1).

In sum, in its current form Amendment 750 will not help most Career Offenders. Because, sentences for Career Offenders are not based on the amount of crack involved in the case. (the same legal reasoning applies to cross references). Instead, Career Offender sentences depend on the charge the person faced and the statutory maximum punishment that charge carries. A separate sentencing Guideline, USSG § 4B1.1, controls Career Offender sentences. That Guideline was not reduced. The retroactive crack Amendment does not change the Career Offender Guideline in any way. Nonetheless, if you think you could benefit from the retroactive Amendment, you should contact Craig.


Remember, only Congress can make the FSA’s changes to the Crack mandatory minimum sentences retroactive. To make those changes retroactive, Congress must pass a new law. On June 23, 2011, Representative Bobby Scott (D-VA) introduced a bipartisan bill, H.R.2316 the Fair Sentencing Clarification Act. If it becomes law, it would make the FSA’s changes to mandatory minimums apply retroactively to Federal Crack offenders who committed their crime before August 3, 2010. It is not a law yet, and it may never become law. With that said, however, what could help those with Career Offender status, mandatory minimums, cross references or 851 enhancements to get a reduction is filing a motion asking the court to exercise its equitable authority under Hecht C. v. Bowles, 321 U.S. 321 (1954), and filing a motion for conditional release pending adjudication of the 18 references 3582(c)(2) based on irreputable harm (if applicable). So, if you are a Career Offender, have a mandatory minimum sentence, a cross references, or a 851 enhancement, it is recommended that you argue the FSA before August 2, 2011, in the event that Congress sits on the H.R. 2316 until after this date. even if you file a motion and the court denies relief, you can move to reopen the case. See Dodd v. United States, 545 U.S.553 (2005)( holding petitioner only have one year from the day the law changes to file section 2255 motion); 28 references 2255(3); and, Panetti v. Quarterman , 551 U.S. 930 (2007) (should unripe claim be filed, it should be dismissed and should it later become fruitful to resubmit by itself– it must not be decided as a successive action under 28 U.S.C. 2244(b)).

If you have a statutory sentence, the FSA retroactivity question is a legal determination. Absent a clear statement by Congress to the contrary, substantive changes to federal statutes are applied prospectively, but procedural or remedial changes are applied retroactively. United States v. Seale, 542 F.3d 1033(5th Cir.2008). In general, application of a law is retroactive if it attaches new legal consequences to an event transaction, on conduct that was completed before the law’s effective date. Landgraf, supra at 269-270. It is believed the new law is procedural and remedial in nature simply because it involves how a defendant is indicted and prosecuted.

Thus, because Congress has been silent regarding the issue of retroactivity, it is believed that Congress meant for the change to be retroactive. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988)(“We generally presume Congress is knowledgeable about existing law pertinent to the legislation it enacts.”); See also Snapp v. Unlimited Concepts, Inc., 208 F3d 928, 936 (11th Cir. 2000)(assuming that “Congress knew what it was doing when it enacted the statute at issue”). Finally, statutory changes which would result in a manifest miscarriage of justice, if not applied to cases pre-existing the change, are also always applied retroactively. Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974)(A federal court or administrative agency must “apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.”).

If you want to know if you might benefit from the FSA or new retroactive Guideline Amendment, contact Craig. Remember, no one is guaranteed a sentence reduction, and not all federal crack offenders may qualify. There is one guarantee – if you don’t fight, you can’t win!

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