Cracking the Crack Code: Fair Sentencing Act of 2010

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.

BREAKING NEWS: Bruce Morris gets 19 Not Guilty Verdicts !!!!!!!!!!!!!!!!!!!

Bruce Morris represented a client who was the last one standing in the the long-running Home Depot fraud prosecutions. AUSAs Barbara Cash and John Fitzpatrick, from the Antitrust Division, argued that the client had paid kickbacks to a Home Depot employee to get business contracts. Bruce's defense was that his client did indeed share his commissions with the Home Depot employee, but he did not conspire to defraud Home Depot. Bruce told the jurors that while what his client may have been unethical, he did not violate the wire fraud and mail fraud statutes.

The trial judge summoned Bruce and his client to return to the courtroom after a mere 30 minutes of deliberations to hear the sweet melody of "not Guilty" read nineteen times over!!

Congratulations to Bruce Morris who stood his ground and prevailed.

(Our thanks to Colette Resnik Steel who provided the post text.)
 
It seems this year's Acquittal Club is growing!!!

Space Remains for CJA Panel Attorneys and Federal Defender Staff

For the Multi-Track Federal Criminal Defense Seminar and the Fundamentals of Federal Criminal Defense Training, to be held in Miami, FL, Thursday to Saturday, August 12-14, 2010, and Thursday, August 12, 2010,respectively. Both programs are free to CJA practitioners.

Florida has approved the Multi-Track program for 17.50 general CLE credit hours, 1 hour of ethics, and 1 hour of mental awareness.  It has approved the Fundamentals Track for 8.5 general credit hours.  Alabama has approved the seminar for 22.3 general credit hours and 1 hour of ethics.  Georgia has approved 21.25 hours of general credit and 1 hour of ethics.

The seminar is designed to offer in-depth instruction in a variety of substantive criminal defense topic areas. Five of the tracks - Fraud, Computer Crimes, Immigration, Sentencing and Forensics - will be presented in four distinct hour-long time blocks that are each presented twice, providing seminar participants with the opportunity to attend two of the five separate tracks taking place on
Thursday and Friday.  On Saturday, additional valuable topics will be presented that are of general interest and importance to criminal defense practitioners.  Past attendees wrote about this programs:  "Learned lots of tips and strategies;" and "Excellent!  Great presentations and very important information."

On Thursday, August 12, 2010, there will be a full, one-day training - Fundamentals of Federal Criminal Defense - specifically designed for practitioners who are new to federal criminal defense practice. It will provide them the opportunity to receive instruction on the areas most vital to providing an effective defense for their clients.

A description and agenda can be found on the Training Branch's web site, www.fd.org, where one can also register for the seminars(participants should register separately for Multi-Track and the Fundamentals Training if they intend to attend both).

For questions about the substance of the program, please contact Eric Vos at Eric_Vos@ao.uscourts.gov. For questions about logistics, please contact Jenna Shepard at Jenna_Shepard@ao.uscourts.gov.

BREAKING NEWS: Retrial in the Dunbar Armored Car Trial Ends in Acquittal!

Congratulations to Federal Defender Staff Members Suzanne Hashimi and Lewis Robinson as well attorney Victoria Bruner on this victory!  Great job!

- MF