United States v. Dixon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-4300
______

UNITED STATES OF AMERICA

v.

KENNETH DIXON,
Appellant
______

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-08-cr-00456-001)
District Judge: Honorable John E. Jones, III
______

Argued May 24, 2011
Before: FUENTES, FISHER and NYGAARD, Circuit
Judges.

(Filed: August 9, 2011)

John H. Reed
102 North Market Street
Selinsgrove, PA 17870
Brett G. Sweitzer (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant

William C. Simmers
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701

Theodore B. Smith
Executive Office of the United States Attorney
Evaluation & Review Staff
600 E Street, N.W.
Suite 8500, Bicentennial Building
Washington, DC 20530

Robert A. Zauzmer (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

2
 The question presented in this appeal is whether the
more favorable mandatory minimum prison sentences
imposed by the Fair Sentencing Act of 2010 (the “FSA” or
the “Act”) apply retroactively to defendants, like Kenneth
Dixon, who committed their crimes before the Act became
law, but who were sentenced afterwards. We hold that the
FSA does apply in this instance. The language of the Act
reveals Congress‟s intent that courts no longer be forced to
impose mandatory minimums sentences that are both
indefensible and discriminatory. Therefore, we will vacate
the judgment of the District Court and remand for
resentencing.

I.

From November 2007 until December 2008, Dixon
conspired to distribute approximately fifty-one grams of crack
cocaine. On March 19, 2010, he pled guilty to conspiracy to
distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. § 846, and receipt and possession of an
unregistered firearm, in violation of 26 U.S.C. § 5861(d). At
the time of Dixon‟s offense, the Anti-Drug Abuse Act of
1986 (the “1986 Act”) mandated penalties for powder cocaine
and crack cocaine according to a 100:1 ratio, creating a
pronounced disparity between offenders convicted of
possessing crack cocaine and those convicted of possessing
powder cocaine. More precisely, a conviction involving five
grams of crack cocaine resulted in the same five-year
mandatory minimum term of imprisonment as a conviction
involving 500 grams of powder cocaine. Similarly, a
conviction involving fifty grams of crack cocaine resulted in
the same ten-year mandatory minimum term of imprisonment

3
as a conviction for 5,000 grams of powder cocaine. 21
U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (2006).

The initial justification for this difference in treatment
– that crack cocaine was more dangerous and addictive than
powder cocaine – repeatedly came under attack as the
implications of the disparity emerged. See Kimbrough v.
United States, 552 U.S. 85, 97-99 (2007) (describing the
United States Sentencing Commission‟s criticism of the 100:1
ratio). This controversy resulted from data suggesting that
African-American defendants received disproportionately
higher sentences for crack cocaine offenses than white
defendants convicted of powder cocaine offenses, even
though the drugs were essentially the same substance. See
generally Knoll D. Lowney, Smoked Not Snorted: Is Racism
Inherent in Our Crack Cocaine Laws?, 45 Wash. U. J. Urb. &
Contemp. L. 121 (1994). The Sentencing Commission
identified major problems with the crack/powder disparity,
namely that the assumptions regarding violence and
addictiveness were unfounded, that it did not effectively
punish major drug traffickers, and that it imposed severe
sentences primarily upon African-American offenders. See
Kimbrough, 552 U.S. at 98 (summarizing the Sentencing
Commission‟s efforts to alter 100:1 crack/powder disparity).

Prior to Dixon‟s sentencing hearing, however,
Congress passed the FSA, and it became law when the
President signed it on August 3, 2010. See Hays & Co. v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149,
1151 n.1 (3d Cir. 1989) (“Where no specific effective date is
provided, the provision or statute becomes effective upon the
date the president signs the bill.”). Congress described the

4
FSA as “[a]n Act To restore fairness to Federal cocaine
sentencing.” Fair Sentencing Act of 2010, Pub. L. 111-220,
§ 2, 124 Stat. 2372, 2372 (2010). The FSA reduced the
crack/powder ratio to approximately 18:1. According to the
Act, the five-year mandatory minimum penalty for possessing
crack cocaine is not triggered until a person possesses twenty-
eight grams and the ten-year mandatory minimum penalty for
possessing crack cocaine is not triggered until a person
possesses 280 grams (the triggers for powder cocaine remain
500 grams and 5,000 grams, respectively). Id.

Recognizing the need to connect the new mandatory
minimum penalties with the Sentencing Guidelines, Section 8
of the Act vests the Sentencing Commission with emergency
authority to:

(1) promulgate the guidelines, policy
statements, or amendments provided for 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

(2) pursuant to the emergency authority
provided under paragraph (1), make such
conforming amendments to the Federal
sentencing guidelines as the Commission
determines necessary to achieve consistency
with other guideline provisions and applicable
law.

Id. § 8. New, FSA-compliant, sentencing Guidelines
implementing the 18:1 ratio went into effect on November 1,

5
2010. See Notice of a Temporary, Emergency Amendment to
Sentencing Guidelines and Commentary, 75 Fed. Reg. 66,188
(Oct. 27, 2010); U.S.S.G. supp. to app. C, amend. 748 (Supp.
2010) (amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1,
2010).1 Additionally, Congress directed the Sentencing
Commission to “study and submit to Congress a report
regarding the impact of the changes in Federal sentencing law
under this Act[.]” FSA § 10.

Under the 1986 Act, Dixon faced a mandatory
minimum of ten years‟ imprisonment because he possessed
more than fifty grams of crack cocaine. If the FSA applied,
however, he would be subject to a mandatory minimum of
five years‟ imprisonment. Before the District Court, Dixon
argued that the mandatory minimums set forth in the FSA
should govern because the Act was in effect on the date of his
October 25, 2010 sentencing hearing. The District Court
disagreed and concluded, in accordance with the
Government‟s view, that a mandatory minimum term of ten
years‟ imprisonment was required, based on the provisions of
the 1986 Act in effect at the time of Dixon‟s offense conduct.
Accordingly, it imposed a sentence of 121 months‟
imprisonment, followed by five years of supervised release
for the drug crime, and a concurrent sentence of 120 months‟
1
On June 30, 2011, the Sentencing Commission
unanimously decided to apply the new Guidelines
retroactively to defendants sentenced before the Act‟s
passage. That decision, however, does not affect the statutory
mandatory minimums and has no bearing on the resolution of
the issue before us.

6
imprisonment, followed by three years of supervised release
for the gun crime.

Dixon filed a timely notice of appeal, arguing that the
District Court should have applied the FSA to his sentence.
The issue presented by Dixon‟s appeal is a purely legal one
over which we exercise plenary review. See United States v.
Reevey, 631 F.3d 110, 112 (3d Cir. 2010). Our jurisdictional
authority for that review is provided by 29 U.S.C. § 1291 and
18 U.S.C. § 3742.2

II.

The issue boils down to this: did Congress intend to
preserve the mandatory minimum penalties for crack cocaine
possession set forth in the 1986 Act that it repudiated in the
FSA, or did it intend for Dixon to have the benefit of the
ameliorative provisions of the FSA? 3 We conclude that

2
After oral argument was held in this case, the
Government submitted a letter to the Court pursuant to
Federal Rule of Appellate Procedure 28(j) stating that it had
reversed its position on the applicability of the FSA to Dixon.
Before the District Court and, until now, before this Court,
the Government argued that the Act should not apply to
defendants whose offense conduct predated the FSA but were
sentenced after. Having determined that its previous analysis
of the Act was in error, the Government now agrees with the
position set forth by Dixon in this appeal.
3
As a threshold issue, we determine that our previous
decision in United States v. Reevey, 631 F.3d 110 (3d Cir.

7
Congress intended the latter. The First and Eleventh Circuits

2010), upon which the District Court relied, does not resolve
the question presented in this appeal. When considering
whether a law applies retroactively, the question is always “to
whom”? In Reevey, we held that it did not apply retroactively
to the group comprised of defendants who committed their
crimes and who were sentenced before the Act was enacted.
In doing so, we joined every Court of Appeal to consider the
issue. See United States v. Doggins, 633 F.3d 379, 384 (5th
Cir. 2011); United States v. Bell, 624 F.3d 803, 814-15 (7th
Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7
(8th Cir. 2010); United States v. Carradine, 621 F.3d 575,
580 (6th Cir. 2010); United States v. Lewis, 625 F.3d 1224,
1228 (10th Cir. 2010); United States v. Gomes, 621 F.3d
1343, 1346 (11th Cir. 2010) (per curiam). The “to whom”
question here is different. The issue in this case is whether
the FSA applies to the separate group of defendants who
committed their crimes before the Act was enacted, but who
were sentenced afterwards. We specifically abstained from
answering this question in Reevey. 631 F.3d at 115 n.5
(distinguishing a defendant in Dixon‟s position from Reevey
because Reevey, unlike Dixon, committed his crime and was
sentenced before the FSA was enacted). Our answer to the
question whether Congress intended to apply the FSA to one
group – defendants in Reevey‟s position – has no bearing on
whether Congress intended to apply the FSA to another –
defendants in Dixon‟s position. See United States v. Fisher,
635 F.3d 336, 339 (7th Cir. 2011) (concluding that a case
similar to Reevey did not control whether the Act applies to
defendants like Dixon).

8
have agreed. See United States v. Vera Rojas, -- F.3d --, 2011
WL 2623579 (11th Cir. July 6, 2011); United States v.
Douglas, -- F.3d --, 2011 WL 2120163 (1st Cir. May 31,
2011). The Seventh Circuit has not. United States v. Fisher,
635 F.3d 336 (7th Cir. 2011), rehearing and rehearing en
banc denied, -- F.3d --, 2011 WL 2022959 (7th Cir. May 25,
2011).

The general common law rule “requires a court „to
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.‟”
United States v. Jacobs, 919 F.2d 10, 11 (3d Cir. 1990)
(quoting Bradley v. School Bd. of Richmond, 416 U.S. 696,
711 (1974)). As a result of the common law rule, once
Congress amended a criminal statute (including its penalties),
all pending prosecutions – prosecutions that had not yet
reached a final judgment in the highest court authorized to
review them – were abated. See Bradley v. United States, 410
U.S. 605, 607-08 (1973). To avoid this result, Congress
passed in 1871 what we now call the “general saving statute.”
See Act of Feb. 25, 1871, ch. 71, § 4, 16 Stat. 431, 432
(codified as amended at 1 U.S.C. § 109). In its current form,
the statute provides in pertinent part:

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, and such statute shall be
treated as still remaining in force for the
purpose of sustaining any proper action or

9
 prosecution for the enforcement of such
penalty, forfeiture, or liability.

1 U.S.C. § 109 (the “Saving Statute”).

Turning to the issue before us, the common law rule
mandates that the FSA governs unless the “statutory
direction” in this case, the Saving Statute, applies. Stated
differently, the mandatory minimum penalties in the 1986 Act
are preserved “unless the repealing Act shall so expressly
provide[.]” 1 U.S.C. § 109. Notably, the Saving Statute is “a
rule of construction . . . to be read and construed as a part of
all subsequent repealing statutes, in order to give effect to the
will and intent of Congress.” Hertz v. Woodman, 218 U.S.
205, 217 (1910).

At first view, the Saving Statute‟s “express” statement
requirement would appear to doom Dixon‟s argument, as the
FSA does not mention retroactivity. But, the Supreme Court
has interpreted the Saving Statute in a more limited manner.
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 N. Ry. Co. v.
United States, 208 U.S. 452, 465 (1908) (emphasis added).
The import of this reasoning is that the Saving Statute cannot
control when preserving repealed penalties would plainly
conflict with the intent of Congress as expressed in a
subsequent statute. To that end, the Saving Statute “must be
enforced unless, either by express declaration or necessary
implication, arising from the terms of the law as a whole, it
results that the legislative mind will be set at naught by giving
effect to the provisions [of the Saving Statute].” Id.; see also

10
Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,
659 n.10 (1974) (“But only if [the repealing statute] can be
said by fair implication or expressly to conflict with [the
Saving Statute] would there be reason to hold that [the
repealing statute] superseded [the Saving Statute].”).4

This reasoning highlights a key principle of Congress‟s
legislative power under Article I of the Constitution: “that
one legislature is competent to repeal any act which a former
legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature.”
Fletcher v. Peck, 6 Cranch 87, 135 (1810). To put it another
way, regardless of what the Saving Statute says, Congress can
express its desire to apply the FSA to Dixon without using
“magical passwords” to do so. Marcello v. Bonds, 349 U.S.
302, 310 (1955) (discussing express statement requirement in
Administrative Procedure Act); see also Lockhart v. United
States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) (“We
have made clear in other cases as well, that an express-
reference or express-statement provision cannot nullify the
unambiguous import of a subsequent statute.” (citing Great
N. Ry., 208 U.S. at 465)). Notwithstanding the absence of a
statement regarding the temporal application of the FSA, the
“necessary” or “fair” implication of the text is that Congress
intended to apply the Act in this situation.5

4
Although the repealing laws in Great Northern and
Marrero contained statute-specific saving clauses, the
Supreme Court did not limit implied repeals to that instance.
5
District Courts within the Third Circuit have

11
 Although Dixon points to legislative history and
statements from members of Congress to support his
argument, there is no need to rely on these sources.
Congress‟s intent is discernable from the text of the Act itself.
First, Congress‟s emergency directive to the Sentencing
Commission in Section 8 to “make such conforming
amendments” that would “achieve consistency with other
guideline provisions and applicable law” demonstrates that
Congress wanted the mandatory minimums in the FSA to
apply to sentences handed down as of its effective date.
“Applicable law” must be the FSA, not the 1986 Act, because

misinterpreted our decision in United States v. Jacobs, 919
F.2d 10 (3d Cir. 1990), as requiring an express statement of
retroactivity and prohibiting consideration of congressional
intent in deciding whether to apply the FSA to defendants in
Dixon‟s position. See, e.g., United States v. Dickey, 759 F.
Supp. 2d 654, 659-60 (W.D. Pa. 2011); United States v.
Burgess, No. 09-150, 2010 WL 5437265, at *2 (W.D. Pa.
Dec. 27, 2010); United States v. Crews, 755 F. Supp. 2d 666,
671 (W.D. Pa. 2010). In Jacobs, the defendant argued that
the legislative history of the repealed statute should be
relevant to whether the new statute saved the old penalty. See
919 F.2d at 12. Rejecting this argument, Jacobs made clear
that the legislative history of the repealed law was of no
relevance to the analysis. See id. at 13. Instead, the proper
point of reference is the repealing statute. Jacobs did not
hold that an express statement regarding retroactivity was
required. Further, the decision did not address the “necessary
implication” analysis and is no bar to concluding that the FSA
applies to Dixon.

12
Congress sought to bring the Guidelines in conformity with
the 18:1 ratio in the FSA. As such, during the time period
when the Sentencing Commission revised the Guidelines, the
FSA provided the “applicable law” against which those
amendments were modeled.

Significantly, the Sentencing Reform Act of 1984
prompts district courts to apply the Guidelines “in effect on
the date the defendant is sentenced[.]” 18 U.S.C.
§ 3553(a)(4)(A)(ii). Legislating against this backdrop,
Congress knew that the amended Guidelines would apply at
the date of sentencing, regardless of when the offense
occurred. Section 8 of the Act speaks of promoting
“consistency” between the Guidelines and the statute. FSA
§ 8. This evinces an intent to apply the FSA to sentences
given as of its effective date, just as the Guidelines would be.
The mandate in Section 8 would not make sense if the new
mandatory minimums are not in accord with the Guidelines
because, regardless of the Commission‟s actions, the old
mandatory minimums would always trump the new
Guidelines for the large number of defendants whose
Guidelines ranges are below the mandatory minimum. See
U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence
shall be the guideline sentence.”). The Eleventh Circuit in
Rojas also recognized the mismatch that occurs when failing
to apply the Act in this instance, namely, “the necessary and
fair implication of the FSA is that Congress intended the Act
to apply to all sentencings going forward, because a contrary

13
conclusion would be logically inconsistent and would achieve
absurd results[.]” 2011 WL 2623579, Slip Op. at 10.

The Seventh Circuit in Fisher disagreed with this
analysis, noting that “if Congress wanted the FSA or the
guideline amendments to apply to not-yet-sentenced
defendants convicted on pre-FSA conduct, it would have at
least dropped a hint to that effect somewhere in the text of the
FSA, perhaps in its charge to the Sentencing Commission.”
635 F.3d at 339-40. This reasoning, however, ignores the text
of Section 8 and fails to meaningfully explain why Congress
would direct new Guidelines to be employed on an
emergency basis, yet at the same time would desire that the
Guidelines have a diminished impact due to the continued
application of the old mandatory minimums. Refusing to
apply the mandatory minimums in the FSA eviscerates the
very consistency and conformity that the statute requires. In
other words, the Guidelines cannot “conform[]” and “achieve
consistency” with the FSA if the Act does not apply to all
sentencing proceedings as of August 3, 2010. This leads to
an incongruous result that puts district courts in the odd
position of having to apply Guidelines implemented to
“achieve consistency with . . . applicable law” to cases in
which the “applicable law” was not applicable. The directive
to the Sentencing Commission signifies that Congress desired
congruence between the FSA and the Guidelines.

Moreover, Congress‟s “emergency” directive is
unnecessary if it did not intend to apply the FSA immediately
because the old mandatory minimums would still control in
many cases. See Fisher, 2011 WL 2022959, at *2 (Williams
and Hamilton, JJ., dissenting from the denial of rehearing and

14
rehearing en banc) (“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.”). The urgency Congress expressed through
ordering the Sentencing Commission to promulgate new
Guidelines demonstrates its intent to apply the FSA without
delay. The Rojas Court echoed this conclusion. See 2011
WL 2623579, Slip Op. at 10 (“By granting the Sentencing
Commission the emergency authority to amend the
Sentencing Guidelines by November 1, 2010, Congress
necessarily indicated its intent for the FSA to apply
immediately.”). Continuing to apply the repealed mandatory
minimums in the 1986 Act is directly in tension with
Congress‟s emergency dictate, and, we believe, an erroneous
reading of the statute.

And, notably, the statute of limitations for drug
offenses is five years. 18 U.S.C. § 3282(a). Refusing to
apply the FSA to defendants like Dixon would lead to a
troubling result in which the Act would have little real effect
for years, until the statute of limitations runs on pre-August 3,
2010 conduct. For example, a defendant could be indicted on
August 2, 2015, for conduct occurring on August 2, 2010, and
still be subject to the mandatory minimum penalties that
Congress sought to eradicate by “restor[ing] fairness to
Federal cocaine sentencing” in 2010. FSA, Preamble.
Congress could not have intended such a bizarre outcome.
Indeed, “[i]t seems unrealistic to suppose that Congress
strongly desired to put 18:1 guidelines in effect by November

15
1 even for crimes committed before the FSA but balked at
giving the same defendants the benefit of the newly enacted
18:1 mandatory minimums.” Douglas, 2011 WL 2120163, at
*4. Although district courts have been divided on the issue,
many have likewise agreed that the FSA applies to defendants
similarly situated to Dixon. See United States v. Watts, -- F.
Supp. 2d --, 2011 WL 1282542, at *11 (D. Mass. Apr. 5,
2011) (collecting cases).

Second, Congress‟s direction to the Sentencing
Commission in Section 10 to study the effects of the FSA
drives home the point. If the FSA‟s provisions only apply to
post-August 3, 2010 conduct, defendants sentenced in the
coming years will be subject to the mandatory minimums in
the 1986 Act. Consequently, during the time period in which
the Sentencing Commission is supposed to produce a report
on the effects of the FSA, the Act often will be inapplicable.
This anomaly frustrates the ability of the Sentencing
Commission to compile a report on the impact of changes as a
result of the FSA. Why would Congress commission a study
on a statute during a period in which it would not consistently
apply? This report “would be incomplete, at best, and
incomprehensible, at worst, if the FSA were not yet being
uniformly applied until after the report was due.” United
States v. Brown, No. 10-0135, 2011 WL 2457933, at *3
(W.D. Pa. June 16, 2011).

Finally, the title and stated purpose of the FSA confirm
that Dixon should be sentenced according to its terms. In
plainly seeking to “restore fairness” to sentencing, Congress
intended to apply the Act to all sentences rendered as of the
Act‟s passage. Declining to do so begs the question of “what

16
possible reason could there be to want judges to continue to
impose new sentences that are not „fair‟ over the next five
years while the statute of limitations runs?” United States v.
Douglas, 746 F. Supp. 2d 220, 229 (D. Me. 2010) (emphasis
in original). District courts have struggled mightily with the
prospect of perpetuating a sentencing regime that Congress
has explicitly decried as unjust. See, e.g., Watts, 2011 WL
1282542, at *1 (“It is disturbing enough when courts, whose
primary task is to do justice, become themselves the
instruments of injustice . . . But this discomfort reaches its
zenith when the injustice has been identified and formally
remedied by Congress itself.” (emphasis in original)); United
States v. Elder, No. 1:10-CR-132, 2011 WL 294507, at *6
(N.D. Ga. Jan. 27, 2011) (“For the Court to continue to
impose sentences that are contrary to the statute that Congress
itself described as „An Act to restore fairness to Federal
cocaine sentencing‟ would be an absurd result.”). This
sentiment is well-founded, as refusing to apply the FSA is,
indeed, fundamentally unfair. There is no compelling reason
to reach a contrary conclusion. Because the “plain import of
a later statute,” here, the FSA, “directly conflicts with an
earlier statute,” namely, the Saving Statute‟s attempted
preservation of the mandatory minimum penalties in the 1986
Act, the FSA controls “regardless of its compliance with any
earlier-enacted requirement of an express reference or other
„magical password.‟” Lockhart, 546 U.S. at 149 (Scalia, J.,
concurring) (emphasis in original).

III.

We hold that the FSA requires application of the new
mandatory minimum sentencing provisions to all defendants

17
sentenced on or after August 3, 2010, regardless of when the
offense conduct occurred. “[T]he terms of the law as a
whole,” Great N. Ry., 208 U.S. at 465, namely the Act‟s grant
of emergency authority to the Sentencing Commission and
the desire to achieve “consistency” through “conforming”
amendments, in conjunction with the directive in the
Sentencing Reform Act of 1984 to apply the Guidelines in
effect on the day of sentencing, lead to the inescapable
conclusion that Congress intended to apply the FSA to Dixon.
This interpretation of the Act comports with its stated purpose
to restore fairness to federal cocaine sentencing. To conclude
otherwise would frustrate this goal and set “the legislative
mind . . . at naught.” Id. Accordingly, we will vacate the
judgment of the District Court and remand so that Dixon may
be sentenced in accordance with the terms of the FSA.

18