Opinion
Case No. 2:05-CR-00060(3)
03-31-2014
UNITED STATES OF AMERICA, Plaintiff, v. PATRICK FOSTER, Defendant.
JUDGE ALGENON L. MARBLEY
OPINION & ORDER
This matter is before the Court on Defendant Patrick Foster's Motion for Sentence Reduction (Doc. 309). Defendant asks the Court to reduce his sentence under the Fair Sentencing Act ("FSA") and 18 U.S.C. § 3582(c)(2), on the basis of the United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The United States opposes (Doc. 330), on account of the Sixth Circuit's en banc decision in United States v. Blewett, No. 12-5226, 2013 WL 6231727 (6th Cir. Dec. 3, 2013) (en banc), which, it argues, squarely forecloses relief for defendants whose sentences became final before the effective date of the FSA. (Doc. 330 at 1).
For the reasons set forth herein, Defendant's motion is DENIED.
I. BACKGROUND
On June 3, 2005, Defendant pleaded guilty to one count of conspiracy to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii). (Plea Agreement, Doc. 53). On April 27, 2006, Defendant was sentenced to 120 months incarceration, the mandatory minimum sentence at the time, as well as five years supervised release and a $100 special assessment. (Minute Entry, Doc. 111). Judgment was entered on May 12, 2006. (Judgment, Doc. 115). Defendant voluntarily surrendered to begin serving his sentence on June 9, 2006. (Doc. 140 at 2).
On May 28, 2013, Defendant filed this Motion for Sentence Reduction (Doc. 309). Defendant argues that the Sixth Circuit's decision in United States v. Blewett entitles him to a reduction in sentence under the FSA. (Doc. 309 at 1). Accordingly, he asks to be sentenced within the new Sentencing Guidelines range: 87 to 108 months incarceration. (Id. at 2).
On October 24, 2013, the United States, in a motion that remains pending, asked the Court to stay its ruling on Defendants' Motion, in light of the petition for rehearing en banc filed by the United States in Blewett, which the Sixth Circuit had granted. (Doc. 329 at 1). Argument was held on October 9, 2013, and thus the United States moved the Court to stay its hand, until the Court of Appeals could render its en banc decision. (Id.).
On December 3, 2013, the Sixth Circuit issued its en banc decision, and accordingly on December 9, 2013, the United States filed its Opposition to Defendant's Motion (Doc. 330). The United States argues that the en banc decision in Blewett made clear that the FSA "does not have retroactive applicability to defendants who sentences became final before the effective date of the [A]ct." (Id. at 1) (citing Blewett, 2013 WL 6231727 at * 1). The United States explains that because Defendant was sentenced in, and his sentence became final during, 2006, four years before the FSA was enacted, he cannot apply the FSA retroactively to his sentence. (Id. at 2).
II. LAW AND ANALYSIS
The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat 3207 (October 27, 1986) ("the 1986 Act"), established mandatory minimum sentences for possession with intent to distribute cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). On August 3, 2010, Congress amended the 1986 Act by enacting the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The FSA increased the amount of crack cocaine needed to activate the same mandatory minima set in the 1986 Act. See id. § 2. Pursuant to the FSA, the United States Sentencing Commission was directed to "promulgate the guidelines, policy statements, or amendments provided for in this Act." Id. at § 8. Accordingly, on October 27, 2010, the Sentencing Commission issued its "Cocaine Base Amendment," 75 Fed. Reg. 66188 (Oct. 27, 2010), which, among other things, amended § 2D1.1 of the Sentencing Guidelines by increasing the amount of cocaine base necessary to trigger an increased offense level. Id. at 66189.
In general, 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." 1 U.S.C. § 109. As used in § 109, "repeal" includes re-enactments with different penalties, "whether the re-enacted legislation increased or decreased the penalties." Warden v. Marrero, 417 U.S. 653, 660 (1974). Thus, there is a presumption that a law which reduces statutory penalties does not apply to penalties incurred before the new law takes effect. Blewett, 2013 WL 6231727, at *2.
In Blewett, the Court of Appeals concluded that the new mandatory minima under the Fair Sentencing Act did not apply retroactively to sentences that were final before the passage of the Act. Id. The defendants in that case had been convicted for possession with intent to distribute crack cocaine and sentenced to the mandatory minimum of five years' incarceration. Id. After the passage of the Act, the defendants moved for a sentence reduction, on the grounds that the quantities of crack cocaine in their possession fell short of the new thresholds set by the Act, and thus they should benefit from the newly reduced penalties, despite the fact that they were sentenced before the Act took effect. Id. at *2. A three-judge panel of the Court of Appeals agreed, finding that the racially disparate impact of the pre- and post-FSA crack cocaine mandatory minima violated the Fourteenth Amendment's guarantee of Equal Protection, and that the operation of 18 U.S.C. § 3582(c)(2) applied the FSA retroactively. 719 F.3d at 487, 491.
Sitting en banc, the Court of Appeals reversed. The en banc majority held that, "consistent with the decisions of every other court of appeals in the country," the Act does not "retroactively undo final sentences." Id. at *1. The Court of Appeals looked to the six factors identified in Dorsey v. United States, 132 S. Ct. 2321 (2012), to conclude that the Act does not have retroactive application to sentences that became final before the effective date of the Act. The court reasoned that the Act does not overcome Section 109's presumption of non-retroactivity, since the Act does not have a "clear statement or clear implication" to that effect, and since a defendant's sentence normally depends on the rules "in effect on the date the defendant was sentenced." 2013 WL 6231727, at *2 (quoting Dorsey, 132 S.Ct. at 2332). According to the Court in Dorsey, the language of the FSA implied that Congress intended that the relevant sentencing law in effect on the date of initial sentencing should apply. Id. Furthermore, the Court of Appeals noted that the problem of "disparate treatments" would not be an issue here, since "[t]he new minimums apply to everybody sentenced after the Act, and the old minimums apply to everybody sentenced before it." Id. at *3. The majority found support for its conclusion in the "principle of finality," as well as in the fact that Congress required the Sentencing Commission to draft new sentencing guidelines and apply them to "all future sentences," but not to past sentences. Id.
A sentence is "final" when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). In this case, judgment was entered on May 12, 2006. (Doc. 115). The time for appeal lapsed 14 days later, on May 26, 2006. See Fed. R. App. P. 4(b)(1)(A).
The en banc majority also rejected the proposition that 18 U.S.C. § 3582(c)(2) caused the Fair Sentencing Act to apply retroactively. Because it was Congress, not the Sentencing Commission, which "lowered these mandatory minimum penalties" by passing the Act, § 3582(c)(2) is inapplicable; that provision applies only to sentencing ranges decreased by the Commission. 2013 WL 6231727, at *8. Moreover, the majority held that although the Guidelines range applicable to the defendants had been decreased by the Sentencing Commission, and that this decrease was retroactively applied under § 3582(c)(2), nevertheless the defendants could not use the new Guidelines range to escape the statutory mandatory minimum under which they were sentenced. Id. at *9. To do so would be to transform impermissibly "a prospective law into a retroactive one." Id. Instead, § 3582(c)(2) "allows consideration only of retroactive amendments to the sentencing guidelines, with other sentencing elements—mandatory minimums—held constant." Id. See also U.S.S.G. § 1B1.10 cmt. 1 (a reduction in a defendant's sentence is not authorized under § 3582(c)(2) if "the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of [a] . . . statutory provision" such as a statutory mandatory minimum.).
For the same reasons, Defendant's Motion in this case must be denied. Like the defendants in Blewett, a new Guidelines range cannot operate to undo the statutory mandatory minimum applicable to his sentence. Because Defendant's sentence was final well before effective date of the Fair Sentencing Act, his sentence is governed by the mandatory minimum in place at the time he was sentenced.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion to Reduce Sentence (Doc. 309) is hereby DENIED. The United States' Motion for Stay in Ruling (Doc. 329) is DENIED AS MOOT.
IT IS SO ORDERED.
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ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE