In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2352
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY F ISHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-00161––Lynn Adelman, Judge.
No. 10-3124
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
E DWARD D ORSEY, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:09-cr-20003––Michael P. McCuskey, Chief Judge.
D ECIDED M AY 25, 2011
2 Nos. 10-2352 & 10-3124
Before R OVNER, W OOD , and E VANS, Circuit Judges.
P ER C URIAM . On March 23, 2011, the defendants-ap-
pellants Anthony Fisher (#10-2352) and Edward Dorsey
(#10-3124) filed petitions for rehearing and rehearing
en banc. The panel has voted to deny the petitions for
rehearing. On April 5, 2011, an order was issued directing
the government to file an answer to the petition for re-
hearing en banc filed by Edward Dorsey. The answer
was filed on April 19, 2011. Subsequently, a vote
was taken on the petition for rehearing en banc in appeal
#10-3124. Chief Judge Easterbrook and Circuit Judges
Posner, Flaum, Kanne, Rovner, Wood, Sykes and Tinder
voted to deny the petition. Circuit Judges Williams and
Hamilton voted to grant the petition.
Therefore, the petitions for rehearing and rehearing
en banc filed on March 23, 2011 are denied.
W ILLIAMS, Circuit Judge, with whom H AMILTON,
Circuit Judge, joins, dissenting from the denial of rehearing
en banc.
Edward Dorsey pled guilty to distribution of 5.5 grams
of crack cocaine for conduct that occurred prior to the
passage of the Fair Sentencing Act of 2010 (“FSA”). He was
sentenced on September 10, 2010, after its enactment.
The panel found that under the General Saving Statute,
Nos. 10-2352 & 10-3124 3
1 U.S.C. § 109, the FSA was not “retroactive” to those
whose sentences were pending at the time of the FSA’s
enactment, and that the relevant date for application of
the FSA is the date of conduct. United States v. Fisher, 635
F.3d 336, 340 (7th Cir. 2011). Like many of the district
courts currently addressing this issue around the
country, I would find that the General Saving Statute
cannot be read to preclude the application of the FSA to
individuals in Dorsey’s position.
We are the first circuit to address the question of whether
individuals sentenced after the enactment of the FSA
are entitled to the benefit of the statute. Given the five-
year statute of limitations for offenses such as the one
at issue, see 18 U.S.C. § 3282, adhering to a flawed view
concerning the application of the General Saving Statute
will require the district courts to continue administering
sentences that have been acknowledged by Congress
as unjust. While the number of people indicted for pre-
FSA conduct will diminish over time, in fiscal year 2010,
at least 78.8% of defendants sentenced for crack-cocaine
offenses were sentenced for conduct involving five
grams or more of the drug. United States Sentencing
Commission 2010 Sourcebook of Federal Sentencing
Statistics Tab 43.
I.
The General Saving Statute provides that “[t]he repeal
of any statute shall not have the effect to release or extin-
guish any penalty, forfeiture, or liability incurred under
such statute, unless the repealing Act shall so expressly
4 Nos. 10-2352 & 10-3124
provide.” 1 U.S.C. § 109. The Supreme Court has said
that the saving statute “cannot justify a disregard of the
will of Congress as manifested either expressly or by
necessary implication in a subsequent enactment.” Great
No. Ry. Co. v. United States, 208 U.S. 452, 465 (1908). In
other words, where there is a “specific directive” that “can
be said by fair implication or expressly to conflict with
§ 109,” “there [would] be reason to hold that [the new
statute] superseded § 109.” Warden, Lewisburg Penitentiary
v. Marrero, 417 U.S. 653, 659 n.10 (1974) (citing Great No.
Ry. Co, 208 U.S. at 465–66). The General Saving Statute
does not apply in instances where, by “necessary im-
plication, arising from the terms of the law as a whole,”
it is clear that “the legislative mind will be set at naught
by giving effect to the [saving statute].” Great No. Ry. Co.,
208 U.S. at 465; see also Hertz v. Woodman, 218 U.S. 205,
217 (1910) (stating that the General Saving Statute is a
“rule of construction . . . to be read and construed as
part of all subsequent repealing statutes, in order to give
effect to the will and intent of Congress”). “A subsequent
Congress . . . may exempt itself from such requirements
by ‘fair implication’—that is, without an express state-
ment.” Lockhart v. United States, 546 U.S. 142, 148 (2005)
(Scalia, J., concurring) (emphasis in original) (citing
Marrero, 417 U.S. at 659-60 n.10; Hertz, 218 U.S. at 218)).
There is no need to “cherry pick,” as the panel’s opinion
suggests, from the legislative history to find the neces-
sary directive here since it is found in the language of the
FSA itself. In section 8 of the FSA, Congress directed
the United States Sentencing Commission (“USSC”) to
exercise “emergency authority,” and stated that the USSC
Nos. 10-2352 & 10-3124 5
“shall . . . promulgate the guidelines, policy statements, or
amendments provided in this Act as soon as practicable,
and in any event not later than 90 days after the date of
enactment of this Act . . . and . . . make such conforming
amendments to the Federal sentencing guidelines as
the Commission determines necessary to achieve consis-
tency with other guideline provisions and applicable
law.” 124 Stat. 2372, 2374 (2010). The USSC followed
this directive and promulgated a temporary, emergency
amendment to the sentencing guidelines consistent
with the FSA on November 1, 2010, which became ap-
plicable to all defendants sentenced after that date, re-
gardless of when they committed their crimes. See 18
U.S.C. § 3553(a)(4)(A)(ii) (stating that except in cases of
remand, sentencing courts are to apply the guidelines
“in effect on the date the defendant is sentenced”).
Many district courts have found that this statutory direc-
tive is sufficient indication of Congress’s intent to have
the FSA apply to those individuals yet to be sentenced.
See, e.g., United States v. Watts, ___ F. Supp. 2d ___, 2011 WL
1282542, at *11 (D. Mass. 2011) (collecting cases); see also
United States v. Douglas, 746 F. Supp. 2d 220 (D. Me. 2010).
The panel recognized this argument, but then stated
that Congress “could have dropped a hint” that it sought
to apply the FSA to pending cases “in its charge to the
Sentencing Commission.” I see no hint that Congress
intended otherwise. In that very charge, in fact, Congress
ordered the USSC to exercise emergency powers to con-
form the guidelines to the FSA “as soon as practicable,”
and no later than ninety days, instead of waiting for the
6 Nos. 10-2352 & 10-3124
Commission to promulgate new guidelines under existing
procedures.1 When the FSA was enacted, Congress was
undoubtedly aware of the default rule of applying
amended guidelines to pending cases, which would
require the application of a new 18:1 guideline ratio
regardless of when the violation occurred. Section 8 of
the FSA sought to promote “consistency” between the
guidelines and the statute, which signals an intent to
apply the FSA to pending cases just as the guidelines
would be. Under the panel’s interpretation, for many
defendants currently being sentenced whose conduct
occurred before the FSA was enacted, the sentencing
court would calculate an 18:1 guideline ratio, but would
have to apply a statutory 100:1 ratio. Oddly, under the
panel’s interpretation, of these defendants, the only
ones who benefit from this “emergency authority” are
the worst offenders, whose new guidelines range would
be reduced to the statutory minimum. Congress’s
mandate in section 8 would not have made much sense
if Congress did not intend the FSA to apply to
defendants in Dorsey’s situation because, regardless of
what the Commission promulgated, the new guidelines
would simply look to the old statutory minimums.
1
The emergency amendments expire on November 1, 2011.
28 U.S.C. § 994(p); Douglas, 746 F. Supp. 2d at 223 n.17. On April
28, 2011, the Commission submitted to Congress amendments
to the sentencing guidelines and official commentary, which
become effective on November 1, 2011, unless Congress acts
to the contrary. See 76 Fed. Reg. 24960 (May 3, 2011).
Nos. 10-2352 & 10-3124 7
The panel did not explain why section 8 does not
provide a “fair implication” under the Supreme Court’s
elaboration of what is required to supercede the General
Saving Statute. Some district courts have, however,
attempted to narrow the “fair implication” or “necessary
implication” language that finds its origins in Great
Northern. See United States v. Young, ___ F. Supp. 2d ___,
2011 WL 1042264, at *4 (E.D. Mich. 2011); see also United
States v. Santana, ___ F. Supp. 2d ___, 2011 WL 260744,
at *20 n.23 (S.D.N.Y. 2011). Contrary to what these
courts have found, Great Northern does not stand for the
proposition that a “direct contradiction” in the statute
itself is required to find the fair or necessary implication
sufficient to overcome the General Saving Statute.
In Great Northern, the Supreme Court held that certain
language in the 1906 Hepburn Law repealing an older
statute did not “expressly or by fair implication, conflict
with the general rule established by [the General Saving
Statute],” 208 U.S. at 466, such that new prosecutions
for old conduct were barred, because the language at
issue did not touch upon new prosecutions.2 The
court’s view was “fortified” by a direct conflict between
2
The Hepburn Law itself contained a saving provision
stating that “all laws and parts of laws in conflict with the
provisions of this act are hereby repealed, but the amendments
herein provided for shall not affect causes now pending
in courts of the United States, but such causes shall be prose-
cuted to a conclusion in the manner heretofore provided
by law.” Great Northern, 208 U.S. at 465.
8 Nos. 10-2352 & 10-3124
another provision of the Hepburn Law and the defendants’
contention that new prosecutions for pre-1906 conduct
were abrogated by the new statute. Id. at 468. In other
words, the defendants’ contention that prosecutions
under the old law were abated by the Hepburn Law was
directly contradicted by another provision of that same
law. In contrast, in this case, there is no “other” provision
of the FSA that directly contradicts with Dorsey’s
position or warrants reading the FSA to prevent applica-
tion of its terms to individuals yet to be sentenced. Great
Northern simply does not support a narrowing of the
“fair implication” language used by the Court. In fact, as
noted above, the Supreme Court cases decided after
Great Northern have continued to rely upon the “neces-
sary” or “fair implication” language without mentioning
the need for a “direct contradiction.” See Marrero, 417 U.S.
at 659 n.10 (“But only if § 1103(a) can be said by fair
implication or expressly to conflict with § 109 would
there be reason to hold that § 1103(a) superseded § 109.”);
Lockhart, 546 U.S. at 148 (Scalia, J., concurring) (“A sub-
sequent Congress . . . may exempt itself from such re-
quirements by ‘fair implication’—that is, without an
express statement.”). Furthermore, there is no indication
that the “fair implication” analysis in Great Northern
ought to be limited to statutes with their own saving
provisions.
There is, therefore, little rationale for limiting the “fair
implication” language found in Great Northern, and none
for not considering section 8 of the FSA to be such an
implication. The panel’s reading of section 8 would set “the
Nos. 10-2352 & 10-3124 9
legislative mind . . . at naught by giving effect to the
[saving statute],” Great No. Ry. Co., 208 U.S. at 465, and
prevent the consistency and conformity that the statute
expressly seeks. As one district judge has noted, “[i]t
is only by covering his eyes and plugging his ears that
any fairminded person could avoid the conclusion that
Congress intended, by ‘fair implication,’ to treat the
statutory amendments . . . the same way it directed the
Guidelines to be treated, that is, to mandate that the
amended statutes be applied to all defendants coming
before federal courts for sentencing.” Watts, 2011 WL
1282542, at *14; see also Douglas, 746 F. Supp. 2d 220.
I would therefore find that the Fair Sentencing Act
is applicable to Dorsey as a result of section 8.
II.
Dorsey also argued that a defendant in his position
“incurs” a penalty at the time of his sentencing, and not
at the time of conduct, such that the Saving Statute
would not even apply to the case at hand. I believe this
issue warrants review by the full court.
Section 841’s elements are contained in subsection (a),
while subsection (b) contains the considerations which
determine the maximum and minimum sentence. 21
U.S.C. § 841; United States v. Bjorkman, 270 F.3d 482, 490
(7th Cir. 2001). We have consistently held that in the § 841
context, “drug type and quantity are not elements of
the offense”; rather, they are factors to be considered at
sentencing. Bjorkman, 270 F.3d at 490 (rejecting argument
after Apprendi that drug quantity is an element of the
10 Nos. 10-2352 & 10-3124
offense); United States v. Gougis, 432 F.3d 735, 745 (7th Cir.
2005); United States v. Martinez, 301 F.3d 860, 865 (7th
Cir. 2002). “[A] statute that sets a mandatory minimum
neither alters the maximum penalty for the crime com-
mitted nor creates a separate offense calling for a separate
penalty; it operates solely to limit the sentencing court’s
discretion in selecting a penalty within the range
available to it.” United States v. Krieger, 628 F.3d 857, 863
(7th Cir. 2010) (quotation marks omitted); see also Harris
v. United States, 536 U.S. 545, 567 (2002) (sentencing
factor that triggers mandatory minimum merely limits
the court’s discretion in selecting penalty within
statutory permissible range).
Under the panel’s view, an individual could plead
guilty to, or be convicted of, distribution of crack cocaine
under § 841(a) for conduct occurring prior to August
2010, with no weight specified, but be subject to a
statutory five-year mandatory minimum if the govern-
ment proved at a later sentencing, by a preponderance
of the evidence, that the weight of drugs involved in the
charged conduct amounted to five grams, or ten years
if the weight was shown to be fifty grams. See, e.g., United
States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995). The
panel does not discuss the legal implications of this
result. It only suggests that if a conviction is based on
charged conduct that occurred both before and after the
enactment date, the post-enactment conduct would have
to be considered in light of the FSA. Fisher, 635 F.3d at
340. This, however, does not address why the penalty
is “incurred” at the time of the commission of the
charged offense under the statute, when that mandatory
Nos. 10-2352 & 10-3124 11
five or ten-year penalty can be based on evidence sub-
mitted solely at sentencing.3
The penalty “incurred” argument Dorsey raised is
different from the one we addressed in United States v.
Bell, 624 F.3d 803 (7th Cir. 2010). In that case, the defendant
argued that the statutory change in the FSA was proce-
dural or remedial, and thus outside of the scope of the
General Saving Statute. We found that “[n]o procedures
or remedies were altered by the passage of the FSA,” and
that “the FSA’s predominant purpose was to change
the punishments associated with drug offenses.” Bell,
624 F.3d at 815. This, however, does not foreclose the
argument that the penalty is not “incurred” until the
date of sentencing.
Dorsey’s view that a penalty is “incurred” on the date
of sentencing is in some tension with the way the
Supreme Court has examined the term “prosecution”
under specific statutory saving provisions, see, e.g., Bradley
v. United States, 410 U.S. 605, 609 (1973) (finding that
under Drug Abuse Prevention and Control Act of 1970,
3
In United States v. Jackson, 835 F.2d 1195 (7th Cir. 1987), we
upheld the life sentence of a defendant under 18 U.S.C. § 1202,
which prohibited possession of weapons by career criminals,
even though he had been sentenced after that statute’s repeal
by 18 U.S.C. §§ 922(g) and 924(e)(1). However, at that time,
we held that the General Saving Statute applied because the
latter legislation “simply altered the elements of the offense,”
id. at 1197 (emphasis added), and did not consider whether
it would apply if a statute altered a sentencing factor.
12 Nos. 10-2352 & 10-3124
“prosecution terminates only when sentence is im-
posed”); Marrero, 417 U.S. at 659 (also addressing 1970 Act,
and finding that defendants already sentenced were not
entitled to subsequently enacted parole eligibility due to
statutory saving clause and General Saving Statute), with
how other circuits have read the General Saving Statute,
see, e.g., United States v. Smith, 354 F.3d 171, 175 (2d Cir.
2003) (noting that “sentencing is an integral part of the
‘prosecution’ of the accused, as that term is used in § 109,
and therefore that § 109 saves sentencing provisions in
addition to substantive laws”), and with how the Supreme
Court has addressed “retroactivity” with respect to a
change in law while a case is on direct appeal, see
Landgraf v. USI Film Products, 511 U.S. 244 (1994) (not
addressing the General Saving Statute, but finding that
a “retroactivity” analysis in the context of the Civil
Rights Act of 1991 focuses on whether a statute attaches
new legal consequences to events completed before the
statute’s enactment date). However, it is this tension, and
the panel’s lack of reconciliation of that tension, that
warrants the full court’s review.
For these reasons, I respectfully dissent from the
denial of Dorsey’s petition for rehearing en banc.
5-25-11