On August 3, 2010, the President signed the Fair Sentencing Act of 2010 (S. 1789), reducing the statutory sentences for crack cocaine offenses. The 100 to 1 disparity between crack and powder cocaine sentences has been reduced to 18 to 1. The statutory penalties for powder cocaine offenses remain the same. Now, 28 (as opposed to 5) grams of crack calls for the mandatory minimum five-year sentence, and 280 (as opposed to 50) grams of will trigger the mandatory minimum ten-year sentence. Also, the five-year mandatory minimum for simple possession of crack cocaine has been eliminated. The reduced penalties, however, are not retroactive.
The purpose of the Act is to “restore fairness to Federal cocaine sentencing” by reducing the crack / powder disparity to 18:1. Attorneys in the Northern District of Georgia may be wondering whether the Act applies to their cases where the criminal conduct transpired under the old act; and, at the time of enactment, their case is pre-plea, post plea, or currently on appeal.
Whenever there has been a statutory change in the law, the general rule is that the new statute governs cases pending on the date of its enactment unless manifest injustice would result or there is statutory direction or legislative history to the contrary. United States v. Schumann, 861 F.2d 1234, 1238 (11th Cir. 1988); United States v. Kolter, 849 F.2d 541, 543 (11th Cir. 1988); Bradley v. School Board of Richmond, 416 U.S. 696, 711-14, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980). Manifest injustice would result if a defendant does not receive the benefit of a law enacted to restore fairness to crack cocaine sentencing. There is no statutory direction or legislative history to the contrary in the FSA. In fact, the FSA was enacted “[t]o restore fairness in Federal cocaine sentencing.” P.L. 111-220.
If your client’s case is in the district court, or on appeal, it is considered pending and not yet final on the date of the FSA’s effective date , August 3, 2010. United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); Griffith v Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). Consequently, the FSA should apply to all cases that are pending and not yet final.
Thanks to our colleagues Lynn Fant and Victoria Brunner for this post.
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