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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CM-1331
ROBERT E. WASHINGTON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-11484-13)
(Hon. John F. McCabe, Jr., Trial Judge)
(Submitted January 15, 2015 Decided March 19, 2015)
William T. Morrison was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,
Suzanne Grealy Curt, David Misler, and Ann K. H. Simon, Assistant United States
Attorneys, were on the brief for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.
FISHER, Associate Judge: On November 22, 2013, appellant Robert
Washington was convicted of one count of unlawful possession of marijuana and
one count of unlawful possession of drug paraphernalia following a bench trial.
On appeal, he argues that the Marijuana Possession Decriminalization Amendment
2
Act of 2014, D.C. Law 20-126 (effective July 17, 2014) (“Marijuana
Decriminalization Amendment”), should be retroactively applied to vacate his
convictions. Because the act does not expressly state or necessarily imply that its
provisions should be applied retroactively, we affirm.
I. Background
A. Appellant’s Convictions
Appellant was charged by information on July 5, 2013, with one count of
unlawful possession of marijuana and one count of unlawful possession of drug
paraphernalia.1 On November 22, 2013, he was tried, convicted on both counts,
and sentenced to two concurrent terms of time served. He filed a notice of appeal
that same day.
Evidence at trial showed that on July 4, 2013, officers of the Metropolitan
Police Department found two bags of a green weed-like substance, an empty pill
1
D.C. Code §§ 48-904.01 (d)(1), -1103 (a) (2012 Repl.).
3
bottle, and 174 empty yellow and green baggies in appellant’s van. Later drug
analysis concluded that the green substance was 1.8 grams of marijuana.
B. The Marijuana Decriminalization Amendment
The Marijuana Decriminalization Amendment was first introduced before
the Council of the District of Columbia on July 10, 2013, and was referred to the
Committee on the Judiciary and Public Safety. 60 D.C. Reg. 10612 (2013). After
a hearing, the committee recommended that the Council approve the bill.
D.C. Council, Report on Bill 20-409 (Jan. 15, 2014). The bill was amended eight
times before it was enacted by the Council and signed by the Mayor on March 31,
2014. 61 D.C. Reg. 3482 (2014).
The act, in relevant part, amended existing criminal statutes to decriminalize
“the possession or transfer without remuneration of marijuana weighing one ounce
or less,” making it a civil violation. Marijuana Decriminalization Amendment
§ 101 (a), 61 D.C. Reg. 3482 (2014). An individual who commits that civil
violation can be fined $25. Id. §§ 103 (a), (b)(1), 61 D.C. Reg. 3482-83 (2014).
The act also decriminalized the possession of paraphernalia associated with such
possession. Id. §§ 101 (c), 409 (a), 61 D.C. Reg. 3482, 3487 (2014).
4
The effective-date provision of the legislation stated that “[t]his act shall
take effect following approval by the Mayor . . . , a 60-day period of Congressional
review as provided in section 602(c)(2) of the District of Columbia Home Rule
Act, . . . and publication in the District of Columbia Register.” Id. § 503, 61 D.C.
Reg. 3488 (2014). The act was published in the D.C. Register on April 4, 2014,
61 D.C. Reg. 3482 (2014), and transmitted to Congress four days later. It became
law when the sixty-day review period expired without Congressional action on
July 17, 2014. 61 D.C. Reg. 8250 (2014).
II. Analysis
If the police had found appellant’s marijuana one year and thirteen days
later, he would have been subject to a $25 fine. See D.C. Code §§ 48-1201, -1203
(a) (effective July 17, 2014). He was instead convicted of two misdemeanors, and
he now contends that the Marijuana Decriminalization Amendment should apply
retroactively to vacate those convictions.2
2
The plain-error standard normally applies where, as here, a party has
raised an argument for the first time on appeal. Barnes v. District of Columbia,
102 A.3d 1152, 1153 (D.C. 2014). However, appellant could not have raised his
(continued…)
5
A. The General Savings Statutes
At common law, repeals of criminal statutes applied retroactively, “abating
every prosecution which had not yet resulted in final conviction (including appeal
to the highest reviewing court) . . . .” Holiday v. United States, 683 A.2d 61, 66
(D.C. 1996). To prevent the automatic abatement of pending prosecutions,
legislatures enacted general savings statutes that “shifted the legislative
presumption from one of abatement unless otherwise specified to one of non-
abatement in the absence of contrary legislative direction.” Id. at 66-67 (internal
quotation marks omitted).
In 1871 Congress enacted a general savings statute, which applies not only
to Congressional enactments but also to legislation passed by the Council. See id.
at 70. The statute states:
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
(…continued)
claim at trial because the Marijuana Decriminalization Amendment had not yet
been enacted.
6
so expressly provide, and such statute shall be treated as
still remaining in force for the purpose of sustaining any
proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability.
1 U.S.C. § 109 (2012). The Council also enacted a general savings statute in 1990.
Holiday, 683 A.2d at 75 (citing D.C. Code § 45-404 (a) (2012 Repl.) formerly
D.C. Code § 49-304 (a) (1996 Supp.)).3
Preliminarily, it is clear (and appellant does not argue otherwise) that the
Marijuana Decriminalization Amendment qualifies as a “repeal,” within the
meaning of the savings statute, because it amends the provisions of existing
criminal law, see Holiday, 683 A.2d at 79 n.44 (savings statute applies to “every
statute that amends or repeals another statute imposing a penalty, forfeiture, or
liability”), and that appellant’s liability was “incurred” while the older statutes
were in effect, see id. at 72 (penalties are incurred “when the criminal act was
committed”). Appellant’s convictions are therefore preserved “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
3
We have previously assumed that there is no difference between the
District’s savings statute and the federal statute because their language is
“essentially the same.” Holiday, 683 A.2d at 75. Neither party contends that there
is a significant difference between the two statutes as applied to this case. See id.
7
the provisions of” the general savings statutes. Id. at 79 n.44 (quoting Great N. Ry.
Co. v. United States, 208 U.S. 452, 465 (1908)) (internal emphasis omitted).
The government urges us to affirm appellant’s convictions under the
reasoning of our decision in Holiday. Appellant, however, contends that Holiday
has been superseded by the Supreme Court’s decision in Dorsey v. United States,
132 S. Ct. 2321 (2012).
In Holiday, we considered whether the repeal of certain mandatory-
minimum sentences applied to four defendants who had committed offenses before
the effective date of the act but were sentenced after that date. 683 A.2d at 74-75.
After a review of the statute and its legislative history, we concluded that there was
nothing “express” or “necessarily implied” that would preclude the general savings
statute from preserving the defendants’ mandatory-minimum sentences. Id. at 80.
The Supreme Court in Dorsey considered whether the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (codified as amended in scattered
sections of 21 U.S.C.), which reduced the penalties for offenders convicted of
crack-cocaine offenses, applied to the sentences of individuals who committed
their offenses before but were sentenced after the effective date of the provision.
8
132 S. Ct. at 2326. Relying on “[s]ix considerations, taken together,” id. at 2331,
Dorsey held that the “plain import” or “fair implication” of the FSA was that the
reduced penalties did apply to those offenders, id. at 2335.
We do not see any material inconsistency in the approaches taken by
Holiday and Dorsey. Both decisions evaluated the intent of the legislature by
examining the language of the act in question and its legislative history. Compare
id. at 2332-35, with Holiday, 683 A.2d at 75-78. Both cases also used the same
standard in divining that legislative intent, one of express statement or necessary
implication. See Dorsey, 132 S. Ct. at 2332 (noting that “the Court has described
the necessary indicia of congressional intent by the terms ‘necessary implication,’
‘clear implication,’ and ‘fair implication,’ phrases it has used interchangeably”)
(emphasis added); Holiday, 683 A.2d at 80 (concluding that the act “adds nothing
‘express’ . . . or necessarily implied . . . that would preclude” application of the
general savings statutes) (emphasis added). Dorsey did not explicitly or implicitly
overrule our decision in Holiday.
In holding that the FSA applied retroactively (not to abate any criminal
prosecutions, but to reduce certain penalties applicable to defendants who had not
yet been sentenced), the Dorsey court relied heavily on two factors not present in
9
Holiday. First, it recognized that the FSA was passed against the background of
the Sentencing Reform Act of 1984, which requires a judge to look at sentencing
guidelines that are “in effect on the date the defendant is sentenced.” 18 U.S.C.
§ 3553 (a)(4)(A)(ii). The Court concluded that the Sentencing Reform Act
established a “background sentencing principle” (supporting the application of new
sentencing laws to offenders who had not yet been sentenced) that was at odds
with the more general presumption against the retroactive application of criminal
repeals embodied in the federal general savings statute. Dorsey, 132 S. Ct. at
2332. Second, the Court held that the FSA showed Congress’s intent to follow the
Sentencing Reform Act’s principle instead of the presumption created by the
savings statute because the FSA required the United States Sentencing
Commission to promulgate, “as soon as practicable,” new guidelines that
conformed to the FSA. Dorsey, 132 S. Ct. at 2332 (internal quotation marks
omitted).
We face a different situation in this case. The defendants in Dorsey were
asking for the application of a new sentencing statute that went into effect before
they were sentenced. Id. at 2329-30. Appellant asks for more—he requests that
his convictions be vacated and the prosecution abated based on a law that was not
in effect when he was convicted and sentenced. The competing principles
10
surrounding sentencing that were essential to the holding in Dorsey are not present
here.4
In these circumstances, the general savings statutes establish the dominant
background principle of interpretation. We therefore look at the legislation itself
and its legislative history when determining if its retroactive application was
expressly dictated or necessarily implied by the Council. See Holiday, 683 A.2d
at 74.
B. Is the Marijuana Decriminalization Amendment Retroactive?
We conclude that our reasoning in Holiday controls the outcome of this case.
We noted there that the Council did not expressly address whether the repeal of the
mandatory-minimum sentences applied to pending prosecutions. Id. at 76. The
4
Dorsey did recognize that “in federal sentencing [after passage of the
Sentencing Reform Act] the ordinary practice is to apply new penalties to
defendants not yet sentenced, while withholding that change from defendants
already sentenced.” 132 S. Ct. at 2335. Here, of course, appellant was sentenced
before the Marijuana Decriminalization Amendment became effective, so the
holding in Dorsey does not assist him.
11
legislative history of the act was inconclusive, 5 and we concluded that “the
repealing legislation adds nothing ‘express’ (or necessarily implied) that would
preclude the general savings statutes from preserving the mandatory-minimum
sentences in these cases.” Id. at 80 (internal citation omitted).
The language of the Marijuana Decriminalization Amendment, like that of
the act addressed in Holiday, does not expressly provide for retroactive application.
Neither does the legislative history explicitly mention pending prosecutions.
However, the government does point out that the Judiciary Committee considered
previous convictions for possession of marijuana when discussing “the sealing of
criminal records involving offenses that would no longer constitute crimes after
passage of” the act. Report on Bill 20-409 at 11. The committee recommended
that the issue be dealt with in a separate bill, which was later enacted by the
Council as the Record Sealing for Decriminalized and Legalized Offenses
Amendment Act of 2014, D.C. Law 20-0186, 61 D.C. Reg. 12108 (2014) (“Record
5
At one point, the bill had been amended and a committee report stated,
“Reducing mandatory-minimums for non-violent offenders charged after the
effective date of the act will also make more space available in the District’s
corrective facilities for violent offenders.” Holiday, 683 A.2d at 76 (internal
quotation marks omitted). The amendment was ultimately rejected, however, and
no other legislative history shed light on the issue. Id. at 76-78.
12
Sealing Amendment”). See id.6 That act was designed to “address[] the collateral
consequences of marijuana possession arrests and convictions for individuals who
were arrested, charged, or convicted before July 17, 2014.” D.C. Council, Report
on Bill 20-467 at 3 (Sep. 17, 2014). It did so by providing that “[a] person arrested
for, charged with, or convicted of a criminal offense . . . that was decriminalized or
legalized after the date of the arrest, charge, or conviction may file a motion to seal
the record of the arrest, charge, conviction, and related Superior Court proceedings
at any time.” Record Sealing Amendment § 2 (b), 61 D.C. Reg. 12108. The
Council’s choice to give such relief to individuals who were arrested, charged, or
convicted before the Marijuana Decriminalization Amendment went into effect
supports the inference that it did not intend that act to apply retroactively.
Appellant, relying on legislative history, contends that the clear purpose of
the act is to relieve consequences that marijuana arrests have caused for the
District’s residents and neighborhoods. For example, the committee report on the
bill states that individuals arrested for possessing marijuana could “be legally
discriminated against in employment, housing, and education” and often lost “their
right to food assistance and other forms of public support.” Report on Bill 20-409
6
The record-sealing bill was submitted to Congress for review on
January 26, 2015, and the period of Congressional review expired on March 10.
13
at 5. The committee stated that incarceration resulting from marijuana
prosecutions “risk[s] punishing [an offender’s] family and community, especially
when parents are taken away from their children,” and that “the District’s African-
American community has borne the brunt of these costs.” Id. In light of changing
attitudes about marijuana use, the Council no longer considered the offenses
serious enough to justify such consequences. See id. at 6 (“This legislation
represents the realization that in the District of Columbia, . . . the decision to use
marijuana should not render someone a criminal for life.”).
Appellant argues that it is fair to infer from these expressions of legislative
purpose that the act should be applied retroactively because doing so would better
fulfill its purpose. We do not doubt that applying the provisions of the Marijuana
Decriminalization Amendment retroactively would help some individuals avoid
negative consequences of their crimes. However, the general savings statutes set
forth “an important background principle of interpretation,” and we assume that
the Council “is well aware of the background principle when it enacts new criminal
statutes.” Dorsey, 132 S. Ct. at 2332. If it had intended for the act “to apply
retroactively[,] . . . express language to that effect could have been included.”
Holiday, 683 A.2d at 80.
14
There is no language in the Marijuana Decriminalization Amendment or its
legislative history that expressly states or necessarily implies that the statute
applies retroactively to prosecutions already commenced, much less to a case like
this one, where a conviction has already occurred. We therefore hold that the
general savings statutes preserve all prosecutions for possession of one ounce or
less of marijuana, and possession of related drug paraphernalia, when the offense
was committed before July 17, 2014.
III. Conclusion
Appellant committed his offenses before the Marijuana Decriminalization
Amendment took effect. As explained above, the act does not abate prosecutions
based on conduct that occurred before its effective date. Appellant’s convictions
are therefore
Affirmed.