In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1558, 11-1559, 11-1586 & 11-1758
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
C HRISTOPHER H OLCOMB, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 3:10-cr-30058-RM-BGC et al.—Richard Mills, Judge.
D ECIDED A UGUST 24, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, T INDER, and
H AMILTON, Circuit Judges.
A member of this court called for a vote on the ques-
tion whether these four appeals should be heard en banc
on the court’s own initiative. A majority of the active
judges did not vote in favor of rehearing en banc, and
the proposal therefore fails. Petitions for rehearing or
rehearing en banc will not be accepted; this decision is
the court’s final judgment. Three members of the court
have written opinions explaining their votes.
2 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
E ASTERBROOK, Chief Judge, with whom F LAUM, K ANNE,
S YKES, and T INDER, Circuit Judges, join. These four
appeals were filed by the United States with the Solicitor
General’s authorization. Eight days after the United
States prevailed, the prosecutor filed a document
styled “Notice of Changed Position” announcing that
the Attorney General disagrees with this court (and
apparently with the Solicitor General too). The “Notice
of Changed Position” does not ask us to do anything
in particular, but some members of the court believe that
we should grant rehearing en banc and overrule United
States v. Fisher, 635 F.3d 336 (7th Cir. 2011), which led our
panel to decide these four appeals in the prosecutor’s
favor. I am content to leave Fisher undisturbed.
The Attorney General’s “Memorandum for all Federal
Prosecutors”, dated July 15, 2011, directs United States
Attorneys to argue that the Fair Sentencing Act of 2010,
Pub. L. 111-220, 124 Stat. 2372 (2010), applies to all
criminal prosecutions in which sentence was imposed
on or after August 3, 2010, the day the President signed
the bill. The Memorandum also directs United States
Attorneys to argue that the 2010 Act does not apply to
cases in which sentence was pronounced on August 2,
2010, or earlier, even if they were pending in the district
court or appeal on August 3. In other words, the Attorney
General has concluded that the 2010 Act is partially
retroactive.
As far as I am aware, the Supreme Court has never
held any change in a criminal penalty to be partially
retroactive. The choice always has been binary: retroac-
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 3
tive or prospective. And what makes application “retro-
active” is a change in the legal consequences of activity
that predates the new law’s enactment. See generally
Landgraf v. USI Film Products, 511 U.S. 244 (1994), which
discusses what it means for application of a new statute
to be retroactive, and the two exceptions to the presump-
tion against retroactivity: new procedural rules and
new jurisdictional requirements. The 2010 Act does not
affect judicial procedure; it changes the penalty for crimi-
nal conduct. And it does not affect jurisdiction.
The common law distinguished increases in criminal
punishments from reductions or repeals. Any law that
repealed a criminal statute or reduced the defendant’s
punishment was fully retroactive, while in light of the
Constitution’s Ex Post Facto Clause a law creating a
crime or increasing criminal punishment could apply
only to conduct that occurred after the law changed. But
in 1871 Congress enacted the General Saving Statute,
now codified as 1 U.S.C. §109, which makes all changes
prospective unless the new statute provides otherwise.
Warden v. Marrero, 417 U.S. 653, 659–61 (1974), discusses
this history. Section 109 provides:
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 prosecution for the enforcement of
such penalty, forfeiture, or liability.
4 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
Defendants argued that §109 is irrelevant to the 2010 Act,
because it reduces rather than “repeals” the penalties
for crack cocaine. They also contended that a criminal
does not “incur” a punishment until sentenced. Every
circuit has concluded, to the contrary, that a law reducing
criminal punishment is a repeal of the old statute and
the enactment of a new one for the purpose of §109, and
that a punishment is incurred when the crime is com-
mitted. Marrero supports both of these conclusions.
Our precedent is United States v. Bell, 624 F.3d 803, 814–15
(7th Cir. 2010), which holds that §109 makes the 2010
Act prospective, because it lacks an express declaration
of retroactivity. A footnote collects other circuits’ equiva-
lent decisions.^
Bell and the other circuits rejected arguments for retro-
activity made by defendants whose appeals were
pending on August 3, 2010. That’s why courts could
decide the question so quickly. A second wave of defen-
dants, those sentenced on or after August 3, 2010, asked
for partial retroactivity. Our circuit was the first to con-
^
United States v. Goncalves, 642 F.3d 245 (1st Cir. 2011); United
States v. Acoff, 634 F.3d 200 (2d Cir. 2011); United States v. Reevey,
631 F.3d 110 (3d Cir. 2010); United States v. Rhodes, 2011 U.S.
App. L EXIS 10238 (4th Cir. May 20, 2011) (one of at least five
opinions in that circuit, all non-precedential); United States v.
Doggins, 633 F.3d 379 (5th Cir. 2011); United States v. Carradine,
621 F.3d 575 (6th Cir. 2010); United States v. Brewer, 624 F.3d
900 (8th Cir. 2010); United States v. Baptist, 2011 U.S. App. L EXIS
11056 (9th Cir. June 2, 2011); United States v. Lewis, 625 F.3d
1224 (10th Cir. 2010); United States v. Gomes, 621 F.3d 1343
(11th Cir. 2010). The D.C. Circuit has yet to address this subject.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 5
sider that possibility. The panel in Fisher rejected the
argument that the date of sentencing matters. If the
2010 Act is retroactive, then it applies to all pending
cases no matter how far they have got in the judicial
system; if it is not retroactive, then it applies only to
crimes committed on or after August 3, 2010. Nothing
depends on the sentencing date, which reflects how long
it took to catch a criminal, and the state of the district
judge’s calendar, rather than principles of deterrence
or desert. Section 109 says that the former law “shall be
treated as still remaining in force” for pre-amendment
conduct. If the old law is “treated as still remaining in
force”, the new law can’t be applied to persons newly
sentenced for pre-amendment crimes; §109 forecloses
partial retroactivity.
United States v. Douglas, 644 F.3d 39 (1st Cir. 2011),
reached a contrary conclusion, apparently unaware that
it was creating a conflict with Fisher, which had been
issued 20 days earlier. Douglas held that the new mini-
mum and maximum sentences take effect for de-
fendants sentenced on and after November 1, 2010. (I’ll
come back to the source of that date.) United States v.
Rojas, 2011 U.S. App. L EXIS 13677 (11th Cir. July 6, 2011),
then misread Douglas as holding that the new rules
take effect with sentencing on and after August 3, 2010,
and applied that transition date. (Rojas was sentenced
on August 3 and would not have been eligible for a
lower sentence under Douglas.) On July 7 our panel in
Holcomb remanded four cases with instructions to
apply Bell and Fisher. And on July 15 the Attorney
General issued his memorandum agreeing with Rojas.
That led to the United States Attorney’s “Notice of
6 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
Changed Position” in the four appeals this circuit had
decided on July 7. Then United States v. Dixon, 2011 U.S.
App. L EXIS 16374 (3d Cir. Aug. 9, 2011), followed Rojas
without explaining why it chose August 3 rather than
November 1 as the transition date. Most recently, United
States v. Sidney, 2011 U.S. App. L EXIS 16421 (8th Cir.
Aug. 10, 2011), agreed with Fisher and concluded that
§109 does not permit partial retroactivity.
When the Executive Branch confesses error, this circuit
gives respectful consideration to the rationale for the
new position. A recent example is United States v. Corner,
598 F.3d 411 (7th Cir. 2010) (en banc), which overruled
several of the circuit’s decisions after the Solicitor
General filed a brief carefully explaining where the
circuit had gone wrong. That explanation carried the
day; Corner was unanimous. Unfortunately, the Attorney
General’s “Memorandum for all Federal Prosecutors”
lacks the sort of analysis that was so helpful in Corner.
The Memorandum does not discuss §109 or the language
of the 2010 Act. It does not explain why partial retro-
activity is appropriate—or why the transition should
depend on the date of sentencing rather than some
other event, such as a guilty plea or appeal. The
Attorney General does quote from the caption of S. 1789,
which describes the proposal as “A bill to restore fair-
ness to Federal criminal sentencing”, but this language
precedes the enacting clause and is not part of the
United States Code. It also is unhelpful in evaluating
a proposal for retroactive application. Every law lowering
sentences expresses a legislative conclusion that sen-
tences had been excessive. The common law responded
by applying penalty reductions retroactively. But §109
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 7
provides otherwise. The observation that Congress,
the President, and many federal judges think the
former rules excessively severe does not distinguish
the 2010 Act from any other law reducing sentences
and does not justify disregarding the anti-retroactivity
norm created by §109.
Douglas asked what reason there could be to continue
imposing sentences that the 2010 Act condemns as ex-
cessive. The same question could be asked about every
other law that reduces criminal sentences. The answer
must be that §109 itself supplies the reason. It tells us
that statutory lenience does not reduce the punishment
for acts completed before the new law took effect.
Perhaps the common law reflects greater wisdom than
does §109, but Congress has displaced the common law.
Although §109 says that only an “express” provision
in a later statute can support retroactivity, Congress is
entitled to change that rule just as it is entitled to
change the punishment for distributing crack cocaine.
The legislature of 1871 can’t tie the hands of the legisla-
ture sitting in 2010. This may be why the Court sug-
gested in Marrero that a “fair implication” in a new
law could allow retroactive application. 417 U.S. at 659
n.10. An earlier decision, Great Northern Ry. v. United
States, 208 U.S. 452, 465 (1908), said that when a new
law “by necessary implication” applies to pre-enactment
crimes, the courts must follow the newer law rather
than §109. A necessary (or fair) implication falls short of
an express provision but could show that Congress has
amended §109 to that extent. Still, unless superseded, §109
8 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
is as authoritative as other rules found in the Dictionary
Act, 1 U.S.C. §§ 1–8, and in 18 U.S.C. §§ 5–27. Definitions,
presumptions, and presets are essential to understanding
legal texts. They are subject to revision, but a court
should not lightly infer that Congress has tossed out all
the framework laws that facilitate interpretation—and
thus facilitate legislation too, by giving the legislature
a formulary to use. See, e.g., Rowland v. California Men’s
Colony, 506 U.S. 194 (1993) (holding that the context
clause in the Dictionary Act allows departure from the
presumptive definitions only if there is no other
plausible linguistic understanding of the new statute).
See also Kentucky Association of Health Plans, Inc. v. Miller,
538 U.S. 329 (2003) (enforcing the rule in the McCarran-
Ferguson Act that only federal laws expressly applying
to insurance supersede state regulatory schemes).
Neither the Attorney General nor any member of this
court believes that the 2010 Act is fully retroactive. To say
that the 2010 Act is not fully retroactive is to say that
Congress did not supersede §109, expressly or by im-
plication. Section 109 forecloses partial retroactivity by
providing that the former law “shall be treated as still
remaining in force” for pre-amendment conduct. If §109
has not been superseded, what is the justification for
partial retroactivity? The Attorney General, like the first,
third, and eleventh circuits, is silent on that subject.
Some of my colleagues believe that support for partial
retroactivity can be found in §8 of the 2010 Act, which
provides:
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 9
The United States Sentencing Commission shall—
(1) promulgate the guidelines, policy state-
ments, 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, in accordance
with the procedure set forth in section
21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note), as though the authority
under that Act had not expired; 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 consis-
tency with other guideline provisions
and applicable law.
A requirement for a change in Guidelines within 90 days
of the new law’s enactment does not imply anything
about minimum and maximum sentences on August 3,
2010. The new Guidelines came into effect on November 1,
2010. This is the source of the date that Douglas chose.
The first circuit thought it would be incongruous if the
new Guidelines, but not the new minimum and maxi-
mum sentences, applied to defendants sentenced on
or after November 1, 2010. This does not support the
Attorney General’s view that August 3 marks the transi-
tion. Putting the statutory changes into effect while
the Commission was still deliberating would be just as
incongruous as putting the Guidelines but not the new
10 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
minimum and maximum penalties into effect. Yet none
of my colleagues concludes that the rules change for
sentences on November 1, 2010, or for that matter Novem-
ber 1, 2011—when the 2010 Guidelines will be given
retroactive effect. See Sentencing Commission Release
of July 1, 2011, making Amendment 750, which imple-
mented the 2010 Act, retroactive as of November 1, 2011.
(The Commission’s authority to apply new Guidelines
to closed cases comes from 18 U.S.C. §3582(c)(2). See
Dillon v. United States, 130 S. Ct. 2683 (2010).)
A reader might be inclined to ask why the 2010 Act’s
changes to minimum and maximum sentences should
not take effect on November 1, 2010, the same date as
the revised Guidelines—for revised Guidelines apply to
new sentences even if the conduct took place years
earlier. See 18 U.S.C. §3553(a)(4)(A)(ii); United States v.
Demaree, 459 F.3d 791 (7th Cir. 2006). There is no incon-
sistency however, because the Guidelines and the 2010
Act are doing different things. The statute that provides
penalties for cocaine and cocaine base, 21 U.S.C. §841(b),
sets minimum and maximum punishments; the Guide-
lines then influence where within that range the judge
imposes sentence. The 2010 Act amended §841(b).
Judges are free to disagree with the Commission, see
United States v. Booker, 543 U.S. 220 (2005); Kimbrough v.
United States, 552 U.S. 85 (2007), but they are not free to
disagree with Congress. Thus we have two retroactivity
dates. One is when the new minimum and maximum
penalties take effect; the other is when the revised Guide-
lines take effect. The Commission has, and has used,
statutory authority to apply the lower Guidelines even
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 11
to closed cases starting November 1, 2011. The Commis-
sion lacks any equivalent authority to make different
statutory minimum and maximum sentences applicable
to cases in which the criminal conduct predated August 3,
2010.
These four appeals are about the retroactivity of the
changes to the statutory minimum and maximum sen-
tences, not about the amended Guidelines. And this is
why §8 of the 2010 Act does not affect these appeals.
Changes to the Guidelines have nothing to do with mini-
mum and maximum sentences. That was settled in Neal
v. United States, 516 U.S. 284 (1996), which the Court
reaffirmed in Kimbrough and DePierre v. United States,
131 S. Ct. 2225 (2011). When the Commission dramatically
lowered the Guideline ranges for LSD, defendants
argued that it would be preposterous to apply the new
Guidelines (which do not count the weight of the
carrier medium) while leaving unchanged the statutory
minimum, which Chapman v. United States, 500 U.S. 453
(1991), holds does count the carrier’s weight. Neal held,
however, that the statute and the Guideline are uncon-
nected and that arguments about incongruity do not
justify modifying the statutory minimum and maxi-
mum sentences.
The ratio in the Guidelines has not been 100:1 since 2007.
That year, the Sentencing Commission dropped most
cocaine-base sentences by two levels. See Amendment 706,
effective November 1, 2007 (and made retroactive by
Amendment 713 as of March 3, 2008). The result of the
2007 change was a ratio that, depending on quantity,
12 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
could be as low as 25:1 or as high as 80:1. For many of-
fenders the further change in 2010 does not matter. No
one who distributes 8.4 kilograms or more of cocaine
base received a lower Guideline range. Many common
quantities have the same base offense level before and
after the 2010 change to U.S.S.G. §2D1.1. For example,
the level for distributing 1 kilo dropped from 36 to 34
in 2007 but stayed at 34 in 2010. Some defendants
receive a benefit from both revisions: the level for 100
grams of crack fell from 30 to 28 in 2007 and to 26 in
2010. My point is not that the 2010 changes are slight
for everyone—the benefit can be large for persons
who distribute small quantities (the level for 5 grams
drops from 24 to 16)—but that the Guidelines abandoned
the 100:1 ratio in 2007, not 2010. Neither in 2007 nor in
2010 did Congress link the time of change in the Guide-
lines’ ratio to the time of change in the minimum and
maximum penalties.
Section 8, which tells the Commission to get a move
on in revising its Guidelines, does not imply anything
about when the new minimum and maximum sentences
go into force. Because for some quantities the difference
between the 2007 and 2010 quantity tables is small
or nonexistent, one effect of the rapid revision is to in-
crease penalties swiftly for the most serious offenders
(and to increase the difference between the penalties
for the worst offenders and the least serious ones)—as
sections 5 and 6 of the 2010 Act call for higher Guide-
lines when certain aggravating factors are present, while
§7 directs the Sentencing Commission to reduce the
punishment for offenders with minimal roles. Those
changes are unrelated to the crack/powder ratio.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 13
Section 10 of the 2010 Act tells the Sentencing Com-
mission to study the effects of the new legislation and
report within five years. Dixon observed that, unless the
new legislation applies retroactively, the study will be
limited to the law’s effect on persons who distribute
cocaine base after August 2, 2010. So? There will be
plenty of people in that category. The point of such a
study is to ascertain how lower penalties affect the
volume of crime. People who distributed cocaine before
the 2010 Act expected to be subject to the old penalty
structure; their behavior cannot be changed by a later
drop in sentences. A study of the 2010 Act’s effects will
produce meaningful results only if limited to persons
whose criminal conduct occurs while the 2010 Act is in
force. I do not think that §10 supplies much footing for
an inference one way or the other, but, if §10 is relevant,
Dixon got things backward.
Thoughtful people might wonder what sense it makes
for Congress, having decided that a 100-to-1 ratio is
excessive, to leave the minimum and maximum sen-
tences alone for persons whose crimes predate August 3,
2010. It is a good question, to which there is no satis-
factory answer other than the observation that legisla-
tion is an exercise in compromise. Some legislators sup-
ported the existing 100-to-1 ratio between cocaine base
and powder cocaine, while others thought that the two
versions of this drug should be treated the same, as
the Sentencing Commission once recommended.‡ Some
‡
The 100-to-1 ratio was created by legislation in 1986. In 1990
Congress directed the Sentencing Commission to study the
(continued...)
14 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
members of Congress wanted to reduce the disparity by
raising the penalties for powder cocaine; others wanted to
address it by reducing the penalties for crack. Members of
Congress compromised at a ratio of 18 to 1, with most
change coming through reductions in minimum and
maximum terms of imprisonment.
There’s no scientific basis for the 18-to-1 ratio, or for
getting there by reducing crack sentences rather than
increasing powder sentences, but it was the best that the
advocates of parity could achieve (or, equivalently, the
most that other legislators would concede). I don’t mean
by this that the 18:1 ratio is irrational, only that it is
(...continued)
subject. The Commission has issued four reports, each making
a different proposal. See Cocaine and Federal Sentencing Policy
(Feb. 1995) (proposing 1:1); Cocaine and Federal Sentencing Policy
(Apr. 1997) (recommending 5:1); Cocaine and Federal Sentencing
Policy (May 2002) (recommending ratio of “at least” 20:1);
Cocaine and Federal Sentencing Policy (May 2007) (recommending
20:1 or less). Until 2010 Congress did nothing in response to
these reports, except that in 1995 it blocked proposed changes
that would have made the Guidelines’ ratio 1:1. In 2007, how-
ever, Congress allowed the Commission to change the ratio in
the Guidelines by reducing most cocaine-base ranges by two
offense levels, while the statutory minimum and maximum
sentences continued to reflect a 100:1 ratio. Kimbrough summa-
rizes this history. 552 U.S. at 94–100. That it took 24 years to
change the much-criticized 100:1 ratio in §841(b)—and that three
sections of the 2010 Act call for higher penalties for some drug
distributors—demonstrates the difficulty of creating a package
that can attract majority support.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 15
arbitrary, in the same sense that a statute of limitations
is arbitrary. (Why 90 or 270 days for employment-discrim-
ination suits, 2 years for claims under the Federal
Tort Claims Act, 4 years for the residual statute in 28
U.S.C. §1658, and 5 years for most federal felonies?)
Many Members of Congress who wanted parity also
favored retroactivity, and Members who supported a
higher ratio also favored no retroactivity. One way pro-
ponents of this law could achieve a lower ratio was to
give up on retroactivity. The ratio, and retroactivity,
are among the several dimensions of this compromise.
Most legislative deals are struck off the floor. I do not
claim inside knowledge about this one. Perhaps I err
in guessing about how this law came to have an 18:1
ratio and to allow the Sentencing Commission to imple-
ment retroactive Guidelines. I broach this subject only
to say why I do not find persuasive an argument along
the lines of: “The revised Guidelines were in place by
November 1, 2010, so the new minimum and maximum
penalties must apply to at least some persons whose
crimes occurred before August 3, 2010.” That theme
disregards the compromise nature of legislation.
When Congress enacts a bill, a majority agrees on its
text, not on grand principles. Neither side got every-
thing it wanted in this statute, and judges disserve the
legislative process by giving one side more than it
secured at the bargaining table. Indeed, the tendency to
provide one side with “just a little more in the right
direction” can make legislation harder to accomplish
by requiring Congress to take up, and resolve, all of the
16 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
ways in which the judiciary might be tempted to tin-
ker. “[N]o legislation pursues its purposes at all costs.
Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is
the very essence of legislative choice—and it frustrates
rather than effectuates legislative intent simplistically
to assume that whatever furthers the statute’s primary
objective must be the law.” Rodriguez v. United States,
480 U.S. 522, 525–26 (1987) (emphasis in original). For
all we can know, a belief in Congress that the judiciary
would make the law partially retroactive would have
stiffened the opposition to the bill, and the 100:1 ratio
would still be in force today.
Choosing an effective date for new legislation can be
as arbitrary as deciding how many grams of cocaine
hydrochloride receive the same treatment as one gram
of cocaine base. The Attorney General relies heavily on
the word “fair” in the title of the Fair Sentencing Act,
but what’s fair about condemning someone sentenced
on August 2 to more time in prison than a person sen-
tenced the next day, even though they committed
their crimes on the same date (and may have been co-
conspirators)? Suppose comrades in crime distribute
cocaine in mid-2009 and are caught promptly. One con-
fesses, pleads guilty, and testifies at the trial of the
other, who fights tooth and nail and falsely denies culp-
ability. The first is sentenced on August 1, 2010, the
second on September 1. How would it be “fair” (or even
conscionable) to give the lower sentence to the person
who refused to accept responsibility for his crimes,
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 17
just because by dragging out the process that person
was sentenced after August 2?
It would be weird to conclude that, the longer it
takes to issue an indictment, or the better the offender
at evading capture, and hence the later the sentencing
date, the lower the sentence. Why should the changes
in the minimum and maximum terms take effect
before the changes in the Guidelines (November 1, 2010)?
Rojas, Dixon, and the Attorney General do not even try
to explain why they chose August 3 rather than Novem-
ber 1 as the transition date. Why change the rules as of
the date of sentencing rather than the date of arraign-
ment, plea, or trial, the date the appeal is decided, or
some other event? Any of those transition dates
would produce incongruities. Only full retroactivity, or
no retroactivity, treats equal criminal conduct equally.
If the President wants to apply the lower minimum
and maximum penalties to all cases, pending and closed,
he has only to issue a general commutation. The par-
don power permits the President to achieve retroactive
lenience if he is willing to pay the political price. By
contrast, the judiciary must implement compromises
faithfully, even when most judges wish that the
political decision had been different. I have therefore
voted not to hear these appeals en banc.
18 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
W ILLIAMS, Circuit Judge, with whom P OSNER, R OVNER,
W OOD , and H AMILTON, Circuit Judges, join, dissenting
from the denial of rehearing en banc. The sentences
Congress had originally mandated for crack cocaine
offenses premised on drug quantities that were one
hundred times lower than those for powder cocaine
offenses are indefensible. There is no debate about that.
Recognizing this, Congress wiped them out in the
Fair Sentencing Act of 2010 to, in its own words,
“restore fairness in Federal cocaine sentencing” by elimi-
nating the 100:1 mandatory minimums. The only ques-
tion in this case, odd as it might sound, is whether Con-
gress wanted everyone sentenced after the Fair Sen-
tencing Act became law to receive a “fair” sentence, or
just some.
Our circuit should have heard this case en banc. Three
other circuits have ruled that judges no longer must
impose unfair sentences after the Fair Sentencing Act.
This issue affects pending cases and many cases to come
in light of the five-year statute of limitations on drug
prosecutions. There were equal votes to grant and deny
rehearing en banc. So our circuit’s law stands, and it
is wrong.
I.
Anthony Clardy was sentenced after the Fair Sen-
tencing Act became law. The quantity of crack cocaine
involved was too small to trigger a mandatory mini-
mum under the Fair Sentencing Act (“FSA”), and the
judge imposed a sentence of 33 months’ imprisonment.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 19
The United States government, exercising the discretion to
appeal sentences that it has, argued to us that Clardy
should be sentenced to the higher pre-FSA mandatory
minimum because the drug deal happened before the
FSA’s passage. For Clardy, that would mean a sentence of
120 months in prison. That sentence is so lengthy, and is so
out of line with what the experienced sentencing judge
thought the proper sentence should be, because it is
premised on the 100-to-1 crack to powder ratio that has
been acknowledged to be baseless.
If the FSA applies to him, then, Anthony Clardy will
serve a 33-month sentence. If it does not, his sentence
will soar to 120 months. Perhaps this difference sounds
overly dramatic, or leads one to think that the sentencing
judge must have initially imposed a light sentence.
That would be wrong. The United States Sentencing
Guidelines advised a sentence of 30 to 37 months’ impris-
onment here. The judge sentenced Clardy right in the
middle.
II.
We consolidated the government’s appeal of Clardy’s
sentence with its appeals in three other cases, all
involving defendants who committed crimes before
the FSA became law on August 3, 2010, but who were
sentenced after that and under its terms. Each had
an amount of crack cocaine that triggered a man-
datory minimum under the old law that was less than
an increased triggering amount under the FSA. In light
of our ruling in United States v. Fisher, 635 F.3d 336 (7th
20 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
Cir. 2011), reh’g en banc denied, 2011 WL 2022959 (7th Cir.
May 25, 2011), a panel of our court agreed with the gov-
ernment, vacated the sentences imposed by the district
judge, and said the pre-FSA mandatory minimums
must apply to each person. See Nos. 11-1558, et al., United
States v. Holcomb, et al., Order (7th Cir. July 7, 2011).
Now the United States government has changed its
position. Completely. On July 15, 2011, the United States
Attorney General issued a memorandum stating he has
“concluded that the law requires the application of the
Act’s new mandatory minimum sentencing provisions
to all sentencings that occur on or after August 3, 2010, regard-
less of when the offense conduct took place.” (emphasis
added). The Attorney General directs prosecutors to act
accordingly and concludes:
I am taking this position because it is required by
the law and our mandate to do justice in every
case. The goal of the Fair Sentencing Act was
to rectify a discredited policy. I believe that Con-
gress intended that its policy of restoring fairness
in cocaine sentencing be implemented immedi-
ately in sentencings that take place after the bill
was signed into law.
The United States government is not alone. The First
Circuit ruled after us, even before the Attorney
General’s memorandum, that the FSA was not limited to
defendants whose conduct occurred after its passage.
United States v. Douglas, 644 F.3d 39 (1st Cir. May 1,
2011). So did the Eleventh Circuit. United States v. Rojas,
2011 WL 2623579 (11th Cir. July 6, 2011). The Third Circuit
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 21
has recently followed. United States v. Dixon, ___ F.3d ___,
2011 WL 3449494 (3d Cir. Aug. 9, 2011). Only the Eighth
Circuit has declined to apply the FSA to crack offenders
sentenced after its passage. United States v. Sidney, ___
F.3d ___, 2011 WL 3477200 (8th Cir. Aug. 10, 2011).
Attaching the Attorney General’s memorandum, the
government filed a Notice of Changed Position in-
forming us of its new position regarding these four de-
fendants. It has done the same thing in other cases as
well. Despite the government’s position that the FSA
applies in sentencings after its passage including these,
the law of our circuit remains the same.
There is an unfilled vacancy on our court, so we have
an equal number of active judges. Half of the active
judges on this court, including the two who were on the
original panel in Fisher, voted to rehear these con-
solidated cases en banc. Indeed, the changes in the land-
scape that have taken place after our ruling are signifi-
cant. Certainly our obligation is to evaluate the merits
of the statute ourselves, but the government’s “confessions
of error are, of course, given great weight.” Sibron v.
New York, 392 U.S. 40, 58 (1968); accord Young v. United
States, 315 U.S. 257, 258-59 (1942).
But half does not a majority make, and so it is not
enough to obtain a rehearing en banc in our court.
I believe our circuit should reexamine its position, espe-
cially in light of the events since our initial decision,
and that it should do so because our position is wrong.
For the reasons I explained in my dissent from the denial
of rehearing en banc in Fisher, 2011 WL 2022959, along
22 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
with those I explain here, I dissent from the denial of
rehearing en banc.
III.
The heightened mandatory minimums for crack
cocaine offenses were based on false assumptions. The
Sentencing Commission knows this. See United States
Sentencing Commission, Report to Congress, Cocaine and
Federal Sentencing Policy (May 2002) (“The 100-to-1 drug
quantity was established based on a number of beliefs
about the relative harmfulness of the two drugs and
the relative prevalence of certain harmful conduct associ-
ated with their use and distribution that more
recent research and data no longer support.”). The
United States Attorney General knows this. See Statement
of the Attorney General on the Passage of the Fair Sentenc-
ing Act, July 28, 2010, available at http://www.justice.gov/
opa/pr/2010/July/10-ag-867.html (“The bill greatly
reduces the unwarranted disparity in sentences for crack
and powder cocaine offenses”). Congress knows this.
See, e.g., 156 Cong. Reg. 1680 (Mar. 17, 2010) (statement
of Sen. Durbin, FSA’s author, on day it passed the Sen-
ate) (“Every day that passes without taking action to
solve the problem is another day that people are being
sentenced under a law that virtually everyone agrees is
unjust . . . . If this bill is enacted into law, it will immedi-
ately ensure that every year, thousands of people are
treated more fairly in our criminal justice system.”)
(emphasis added). And so Congress passed the Fair
Sentencing Act of 2010, which became law when the
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 23
President signed it on August 3, 2010 surrounded by
bipartisan Congressional leaders and the Attorney General.
Upon that signature, I believe the Fair Sentencing
Act’s lower mandatory minimums for crack cocaine
offenders applied to all defendants sentenced after it.
The only real argument against such a reading stems
from the general saving statute, 1 U.S.C. § 109, which
Congress passed after an 1871 Supreme Court decision.
When the offense in the case was committed, it carried
a $500 to $1000 fine or a prison term of three to five
years. After the defendant’s indictment but before trial,
Congress amended the penalty provision to a $300 to
$1000 fine and one to five years in prison. The Supreme
Court reasoned that because the penalty provisions of the
two statutes conflicted, the new statute operated as a
repeal of the earlier one. It held as a result that “all
criminal proceedings taken under [the old statute] fell”
because, it said, “[t]here can be no legal conviction, nor
any valid judgment pronounced upon conviction,
unless the law creating the offence be at the time in exis-
tence.” United States v. Tynen, 78 U.S. 88, 95 (1871). It
then directed that the indictment be dismissed. Id.
Congress passed the general saving statute in
response, repealing the common-law presumption.
Passing the statute made sense in that context. See
Hamm v. City of Rock Hill, 379 U.S. 306, 314 (1964) (“It
was meant to obviate mere technical abatement such as
that illustrated by the rule in Tynen.”). In relevant part,
the saving statute provides:
24 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
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 prosecution for the enforcement of
such penalty, forfeiture, or liability.1 U.S.C. § 109.
The saving statute, then, ensures that pre-existing pen-
alties continue, unless Congress later directs otherwise.
Before its change of position, the government used to
point us to a Supreme Court saving clause case, Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653 (1974). There,
the Court ruled against a prisoner long-ago sentenced
who sought to benefit from a new statute making
persons convicted of his offense parole eligible, which
was not true at the time he had been sentenced. That
case contains the language, “the saving clause has
been held to bar applications of ameliorative criminal
sentencing laws repealing harsher ones in force at the
time of the criminal offense.” Id. at 664 (citing cases
from D.C., Second, and Fourth Circuits). That statement
is true as far as it goes—a description of what three
circuit court cases it cited for that proposition had done.
And it accurately describes what the saving clause can
do—it can bar the application of a later more lenient
sentencing law when the offense happened before its
passage.
But Marrero did nothing to change what the Su-
preme Court made clear over one hundred years ago: the
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 25
saving statute does not bar a later law’s lower
penalties from immediately taking effect if Congress
wants them to. The Supreme Court explained that
because the saving statute “only has the force of a
statute, its provisions cannot justify a disregard of the
will of Congress as manifested either expressly or by
necessary implication in a subsequent enaction.” Great
Northern Ry. Co. v. United States, 208 U.S. 452, 465 (1908)
(emphasis added); see also id. at 466 (analyzing whether
statute “expressly or by fair implication” conflicted with
general rule in saving statute). Marrero explicitly reaf-
firmed that principle. It stated that “only if [the statute
at issue there] can be said by fair implication or expressly
to conflict with § 109 would there be reason to hold
that [the statute at issue] superseded § 109.” 417 U.S. at
659 n.10 (emphasis added). The Supreme Court in
Marrero did not find in the new law a fair implication
that Congress wanted someone like Marrero to be parole
eligible; indeed, the statute there had a saving clause of
its own. The relevant point from Marrero for our case is
that it reaffirmed Great Northern. And that remains the
law. See Douglas, 644 F.3d at 43; see also Marcello v.
Bonds, 349 U.S. 302, 310 (1955).
So Congress did not need to say in the Fair Sentencing
Act, “this Act applies to any person sentenced here-
after for crack cocaine offenses, even if the conduct
giving rise to conviction took place before this Act’s
passage,” for it to apply in all sentencings thereafter.
That would be one way to do it. But the Supreme Court
does not require it. The other way, which has the
exact same effect, is for Congress to manifest by “fair
26 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
implication” its will to extinguish the higher mandatory
minimums for crack cocaine offenses for all defendants
sentenced after the Act’s passage.
That is the implication of the Fair Sentencing Act.
IV.
Only one reasonable implication can be drawn from
section 8 of the Act, which provides:
SEC. 8. EMERGENCY AUTHORITY FOR
UNITED STATES SENTENCING COMMISSION.
The United States Sentencing Commission shall—
(1) promulgate the guidelines, policy state-
ments, 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, in accordance
with the procedure set forth in section
21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note), as though the authority
under that Act had not expired; 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 consis-
tency with other guideline provisions
and applicable law.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 27
Pursuant to 18 U.S.C. § 3553(a)(4)(A)(ii), sentencing
judges are to employ the guidelines that are in effect on
the date of sentencing. See also U.S.S.G. § 1B1.11(a). With
that knowledge, and invoking “emergency” authority,
Congress demanded that the lower guidelines take
effect in sentencings “as soon as practicable” and within
ninety days at the absolute latest. That means Congress
wanted guidelines based on an 18:1 powder/crack ratio
to take effect right away, even in sentencings where
the offender’s conduct pre-dated the Act. (There are
bound to be many such cases in light of the five-year
statute of limitations for drug offenses, 18 U.S.C. § 3282,
and the time it takes to investigate and prosecute
such cases.) The Commission promulgated new guide-
lines consistent with the FSA on November 1, 2010, and
these “became applicable to all defendants sentenced
after that date, regardless of when they committed their
crimes.” United States v. Watts, 2011 WL 1282542, at *8
(D. Mass. Apr. 5, 2011).
It makes no sense for Congress to will that guidelines
based on an 18:1 ratio take effect immediately in
sentencings even for crimes committed before the Act
if those same defendants would be subject to pre-FSA
100:1 mandatory minimums. Why would Congress want
that? That kind of sentencing scheme makes no sense.
We are required to interpret statutes in a way that does
not lead to nonsensical results. United States v. Rutherford,
442 U.S. 544, 552 (1979). Congress’s will must have
been either that the 18:1 ratio apply to all persons sen-
tenced after the Act, or that the 18:1 ratio apply only to
persons whose conduct took place after the Act.
28 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
The language Congress chose to use supports only the
former. It demanded of the Sentencing Commission, “Use
the 18:1 ratio. ASAP.” That meant that for sentencing
judges using the new guidelines, “Use the 18:1 ratio.
ASAP.” The fair implication of these demands is that
Congress meant “Use the 18:1 ratio. ASAP” in all aspects
of sentencing. It’s really the only implication that
makes sense.
Congress also demanded in section 8 that the Com-
mission amend its guidelines “to achieve consistency”
with “applicable law,” meaning the new statutory mini-
mums. The directive of “consistency” further shows
Congress’s will that the FSA be applied to pending
cases, since the guidelines would be applied to
pending cases. Using a pre-FSA 100:1 minimum coupled
with an 18:1 guideline to decide a sentence does not
“achieve consistency.” It achieves the opposite. Cf.
Abbott v. United States, 131 S. Ct. 18, 28 (2010) (rejecting
interpretation that “would result in sentencing
anomalies Congress surely did not intend”).
And in section 10 of the FSA, Congress directed the
Sentencing Commission to study the effects of the FSA
and submit a report to Congress regarding the impact of
the changes in federal sentencing law “[n]ot later than
5 years after the date of enactment of this Act.” Under
our circuit’s rule, and in light of the five-year statute
of limitations on drug offenses, “during the time period
in which the Sentencing Commission is supposed to
produce a report on the effects of the FSA, the Act will
often be inapplicable.” United States v. Dixon, 2011 WL
3449494, at *6.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 29
The context surrounding the statute’s passage is im-
portant too. Exceptions to even clear statutes are to be
implied to prevent “consequences obviously at variance
with the policy of the enactment as a whole.” Rutherford,
442 U.S. at 552. The policy driving the FSA was the elimi-
nation of mandatory minimum sentences that had no
basis in fact or law, were based on false assumptions,
and that Congress and the Attorney General and the
Sentencing Commission and the President all believed
were inherently unjust. Congress stated its goal for the
FSA in its Preamble: “To restore fairness to Federal
cocaine sentencing.” Congress believed that passing the
new mandatory minimums helped restore that “fairness.”
At a fundamental level, then, as the Attorney General
asked in his memorandum, and other courts ask too,
why would Congress want sentencing judges to continue
to impose sentences that it had already declared to be
unfair?
There is no good answer to this question.
The fair, necessary, and only implication from the FSA
is that Congress expected and intended its mandatory
minimums to apply immediately.
V.
There are other arguments that could be made against
this reading, but none convince me that the FSA does
not apply in all sentencings after it became the law. It is
true that with a line drawn at the date of effect, there
will be instances where persons who pled guilty early
30 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
on in their cases or who did not try to evade capture do
not benefit from the new mandatory minimums, unlike
others who committed a crime on the same day or even
were involved in the same criminal activity. But a line
must be drawn somewhere. We cannot avoid that. To
draw the line at conduct, when Congress’s whole point
was to get rid of unjust 100:1-based sentences, and to
do so right away, would mean that “the legislative mind
will be set at naught.” Great Northern Ry. Co., 208 U.S. at
465. Congress gets to draw the line, and it drew it at
its passage. Cf. United States v. Acoff, 634 F.3d 200 (2d
Cir. 2011) (per curiam) (declining to apply the FSA to
defendant who had already been sentenced but had
not yet exhausted his appeals).
Some of my colleagues contend it would not be fair
to give less time to the co-conspirator who insisted on a
trial and who thus was sentenced after the FSA, while
giving more time to the cooperator who was sentenced
before that date. But this fails to take into account
two important sources of flexibility that are available to
the district court. First, for the cooperator sentenced
before the effective date, the government could move for
a sentence below the statutory minimum or (more likely)
file a motion to reduce the sentence under Federal Rule
of Criminal Procedure 35(b)(2). See also Fed. R. Crim. P.
35(b)(4) (“When acting under Rule 35(b), the court
may reduce the sentence to a level below the minimum
sentence established by statute.”). For the person sen-
tenced after the FSA’s effective date, the district court
still has the option of choosing a sentence above the
guidelines range, as long as it stays below the normally
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 31
very high statutory maximum, if the court thinks that
a higher sentence is appropriate for the person who
went to trial. In short, there is plenty of authority to
fine-tune in the system, and so the unfairness to which
my colleagues allude is unlikely to come about.
Nor does my position mean that any time Congress
reduces a sentence for an offense that the lower penalty
takes effect in all sentencings immediately. The Fair
Sentencing Act is no ordinary statute. It makes no sense
for Congress to make it an “emergency” to get 18:1 guide-
line ratios in place if it wanted 100:1 minimums it
found inherently unjust to stay. Making it an “emergency”
to get 18:1 guidelines in place if the 100:1 minimums
still had effect makes even less sense because the guide-
lines were not the biggest emergency. District judges
have been able to sentence crack cocaine offenders more
comparably to powder cocaine offenders since the Su-
preme Court gave them the discretion to do so. See
United States v. Booker, 543 U.S. 220 (2005); Kimbrough v.
United States, 552 U.S. 85 (2007). Congress knew that.
Anyone following this issue knows that. The advisory
nature of the guidelines means that it was not the guide-
lines that were the biggest impediment to “restore fair-
ness in Federal cocaine sentencing.” The 100:1 mandatory
minimums were the biggest problem because they
were just that, mandatory. Even knowing that, Congress
made getting more equitable guidelines into place a
matter of emergency. If getting only-advisory guide-
lines into place was a matter of emergency, taking 100:1
mandatory minimums off the books must have been
what, a code blue?
32 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
To point to Neal v. United States, 516 U.S. 284 (1996), as
supporting a contrary reading is to miss the point. In
Neal, the Court held that the Sentencing Commission’s
method of calculating LSD weight didn’t control the
weight calculation for purposes of a statute setting man-
datory minimum sentences. 516 U.S. at 294-95. That’s
obvious. But our case is about what Congress did, not
the Sentencing Commission. There was no change to a
statutory mandatory minimum or maximum in Neal. See
id. The only change there was made by the Sentencing
Commission. See id. at 292-94. Section 8 matters because
it’s what Congress said, and what Congress said shows
it wanted the new sentences in effect right away.
And to emphasize the 2007 amendments to the sen-
tencing guidelines also misses the mark. Despite the
changes in offense levels that resulted from those 2007
amendments, “[t]he amended Guidelines still produce[d]
sentencing ranges keyed to the mandatory minimums
in the 1986 Act.” Kimbrough, 552 U.S. at 99 n.10. The only
difference was that under the 2007 amended guide-
lines, “the 5- and 50-gram quantities produce[d] ‘base
offense levels corresponding to guideline ranges that
include[d] the statutory mandatory minimum penalties,’ ”
as opposed to ranges that slightly exceeded those statu-
tory mandatory minimums. Id. (citing United States
Sentencing Commission, Report to Congress: Cocaine
and Federal Sentencing Policy 8 (May 2007)) (emphasis
omitted). That the base offense level for one who distrib-
utes 1 kilogram of crack cocaine remains the same after
the FSA and 2010 guideline amendments is also
irrelevant: that individual’s base offense level, 34, corre-
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 33
sponds to a range that exceeds even the post-FSA ten-year
mandatory minimum, and does not create an inconsis-
tency. That the 2007 guideline amendments were not
linked to a change in the statutory penalties is obvi-
ous—there were no statutory changes to the mandatory
minimums in 2007. And so, despite my colleagues’ reli-
ance on them, the 2007 amendments did not produce
the illogical disparity between the statutory minimums
and the guideline ranges that our rule in Fisher perpetu-
ates, and do not assist us in determining whether
Section 8 of the FSA, which seeks to achieve consistency,
is a “fair implication” under the Savings Statute.
And, as I have already discussed, a contrary result is
nonsensical. Anthony Clardy’s case illustrates that. The
Sentencing Commission acted urgently at Congress’s
direction and promulgated new guidelines for crack
cocaine offenses on November 1, 2010. Clardy was sen-
tenced after that. The district court judge looked to the
new guidelines recommended by the Sentencing Com-
mission, as all agree he should do. These guidelines
were “consisten[t]” with the ratios reflected in the new
mandatory minimums as Congress had directed they
be. And what did the guidelines recommend for
Clardy’s involvement with 13 grams of crack cocaine? A
sentence of 30 to 37 months’ imprisonment, even in light
of his prior drug conviction that coupled with more than
5 grams of crack cocaine triggered a 120-month manda-
tory minimum under the old law. The necessary and
fair implication of the Fair Sentencing Act is that
Congress did not want the baseless 120-month manda-
tory minimum that existed before it to apply to Clardy.
It wanted him sentenced more fairly.
34 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
That Clardy takes no benefit from the FSA demon-
strates another reason why Congress could not have
wanted our circuit’s interpretation. That reading also, as
I explained in my Fisher dissent, 2011 WL 2022959, at *2,
benefits the worst offenders, as they are the ones who
stand to benefit from the new guidelines since their
guidelines range would be reduced, potentially to just
above the statutory minimum. But for someone like
Clardy, whose drug quantity was too small to trigger
any mandatory minimum sentence at all under the Fair
Sentencing Act, he receives only the knowledge that
the members of the Sentencing Commission think the
just sentence for him is nearly four times shorter.
Finally, the government had initially cited Landgraf v.
USI Film Products, 511 U.S. 244 (1994) to us, and it is now
the first case to which some of my colleagues point.
Landgraf, of course, was a civil case. The Court held
there that a petitioner could not benefit from more favor-
able damages provisions in the Civil Rights Act that
took effect while her case was on appeal. The FSA, in
contrast, is clearly not a statute that “would impair
rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties
with respect to transactions already completed.” Cf.
Landgraf, 511 U.S. at 280. Nor does it raise any constitu-
tional concerns with its application, as the attempt to
invoke the Civil Rights Act’s punitive damages provision,
id. at 281, or a higher penalty in a criminal case would.
Landgraf also says that, “[w]hen [an] intervening statute
authorizes or affects the propriety of prospective relief,
application of the new provision is not retroactive.” Id.
at 273.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 35
The necessary implication of the Fair Sentencing Act
is that its mandatory minimums apply in all sentencings
after its passage. Declining to read the FSA to apply to
offenders like Anthony Clardy would “undercut the bill’s
primary objective,” “result in sentencing anomalies
Congress surely did not intend,” benefit the “worst
offenders,” give “rise to . . . oddities,” and “not necessarily
promote more equitable outcomes.” Those are not my
words. They are the words of the Supreme Court from
just last year, when it rejected a reading of a mandatory
minimum statute that would do all those things. See
Abbott v. United States, 131 S. Ct. 18, 27-28 (2010).
VI.
The conclusion that the Fair Sentencing Act applies in
sentencings, all sentencings, after its passage is not
reached just by me, or my colleagues who join me. It is
the conclusion reached by the Attorney General of the
United States, and it is the official position the federal
government will be taking in every federal court across
the country. That is significant. We also rarely see such
a complete change of course from it. One of those times
was last year, with respect to whether sentencing judges
could consider the crack/powder disparity inherent in
the career offender guideline. The government’s change
of position, along with the fact that no other circuit had
agreed with our holding that judges could not, led us
to reflect further and helped us change our mind in
United States v. Corner, 598 F.3d 411 (7th Cir. 2010)
36 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
(en banc). Here too, I think the new developments are
worthy of reflection, and help show why our initial
interpretation was not the right one. (I’m not sure what
more the Attorney General needs to say, or would say
that is any different than that said here or by my
dissenting colleague, to help understand the position
that the FSA took effect in all sentencings upon its en-
actment. The Solicitor General’s brief that some of my
colleagues found to be so helpful in resolving Corner
made the same arguments already made by the
dissenters in the denial of rehearing en banc in the case
Corner overturned. See United States v. Welton, 583 F.3d
494, 500-04 (7th Cir. 2009).)
And although I think the text of the statute is clear
and yields only one result, to the extent it is unclear, we
should keep the rule of lenity in mind too. Under it,
“ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.” Skilling v. United
States, 130 S. Ct. 2896, 2932 (2010); see also United States
v. Granderson, 511 U.S. 39, 54 (1994) (“In these circum-
stances—where text, structure, and history fail to
establish that the Government’s position is unambigu-
ously correct—we apply the rule of lenity and resolve
the ambiguity in [the defendant’s] favor.”). That rule
favors applying the FSA in all sentencings after its pas-
sage. See Douglas, 644 F.3d at 44. That the Attorney
General, the First, Third and Eleventh Circuits, and many
district court judges around the country have reached
the conclusion opposite from us only supports a finding
that at the least there is ambiguity in the statute, and that
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 37
it is not clear the FSA should not apply to everyone
sentenced after it. Indeed, the rule of lenity is “rooted
in the instinctive distaste against men languishing in
prison unless the lawmaker has clearly said they
should.” United States v. R.L.C., 503 U.S. 291, 305 (1992)
(plurality opinion) (quotations omitted).
It is the instinctive distaste against men and women,
but mainly African-American men like Anthony Clardy,
languishing in prison for committing crimes of crack
rather than powder cocaine, that led Congress to pass
the Fair Sentencing Act. That Congress wanted the
new “fair” sentences to apply to everyone sentenced after
the Fair Sentencing Act became law, not just to some,
is the necessary implication of what it did.
P OSNER, Circuit Judge, dissenting from denial of rehearing
en banc. I join Judge Williams’s dissent unreservedly,
but offer this modest supplement to her excellent opinion.
Congress cannot bind successor Congresses. The fact
that the general saving statute says that a repeal is not
retroactive unless the repealing statute “expressly” states
that it is, 1 U.S.C. § 109, is some indication that a
38 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
repealing statute which, like the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010),
does not say in so many words that its provisions are
retroactive is not. But the absence of an express statement
is not proof and did not bind the Congress that enacted
the Act last year. That may be why the Supreme Court has
said that a “necessary implication” of a new statute
would suffice to make it retroactive notwithstanding the
saving statute’s word “expressly,” Great Northern Ry. v.
United States, 208 U.S. 452, 465 (1908), and why the Court
further reduced the force of the saving statute by later
replacing “necessary implication” with “fair implication.”
Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,
659 n. 10 (1974).
That interpretive standard is met in this case—a con-
clusion reinforced by the principle that statutes are not
to be interpreted literally when literal interpretation
would produce absurd results. “If literalness is sheer
absurdity, we are to seek some other meaning whereby
reason will be instilled and absurdity avoided.” Outlet
Embroidery Co. v. Derwent Mills, Ltd., 172 N.E. 462, 463
(N.Y. 1930) (Cardozo, C.J.); see also Commissioner v. Brown,
380 U.S. 563, 571 (1965); Green v. Bock Laundry Machine Co.,
490 U.S. 504, 527 (1989) (concurring opinion); FutureSource
LLC v. Reuters Ltd., 312 F.3d 281, 284-85 (7th Cir. 2002);
United States v. Balint, 201 F.3d 928, 932 (7th Cir. 2000); In
re Kaiser Aluminum Corp., 456 F.3d 328, 338 (3d Cir.
2006); Flynn v. Commissioner, 77 F.2d 180, 183 (5th Cir.
1935). “Even strict constructionists reject literal inter-
pretation when the result would be senseless.” United
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 39
States v. Hudspeth, 42 F.3d 1013, 1014 (7th Cir. 1994)
(en banc).
Congress in section 2 of the Fair Sentencing Act,
seeking to correct the unwarranted disparity in punish-
ment for crimes involving crack and powder cocaine,
raised the drug quantities needed to trigger the 5-, 10-,
and 20-year mandatory minimum sentences for offenses
involving crack imposed by 21 U.S.C. § 841(b). And in
section 8 it directed the Sentencing Commission to
amend the relevant sentencing guidelines within 90 days
to conform them to the provisions of the new statute.
The Commission did so.
The Commission cannot amend the statute that imposed
the old statutory minimum sentences. See Neal v. United
States, 516 U.S. 284, 294-95 (1996). (But that is all that
Neal holds, so far as bears on this case.) The question is
whether the new statute, by changing the statutory mini-
mum sentences and ordering the Commission forthwith
to change its guidelines to comply with the new mini-
mums, “fairly implies” that the new minimums govern
all sentences imposed after the new statute took effect.
The defendants were sentenced between February 7 and
March 4 of this year, and thus after the Fair Sentencing
Act was signed into law on August 3 of last year. Because
their drug quantities were below the triggering levels
for the new mandatory minimum sentences, if sentenced
under the amended guidelines they could each receive
a substantially reduced sentence.
Sentencing guidelines are applicable to all sentencings
that occur after they are promulgated regardless of
40 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
when the crimes for which the sentences are being
imposed were committed. 18 U.S.C. § 3553(a)(4)(A)(ii).
So unless the Act’s revised mandatory minimum sen-
tences are also applicable to these defendants, they will
receive sentences in excess of the sentencing guidelines
that Congress—in directing the Sentencing Commission
to make haste to conform them to the new, more lenient
statutory minimums (more lenient because of the en-
hanced quantity thresholds)—intended would apply to
such defendants.
The perverse results of a literal interpretation are illus-
trated in the following tables. The first is general,
the second specific to the four defendants in the present
cases.
Guidelines Range
Mandatory Minimum
(months)
(months)
(Criminal History = II)
Pre-FSA FSA Pre-FSA FSA
5g 60 none 57–71 24–30
15g 60 none 57–71 37–46
28g 60 60 70–87 70–87
35g 60 60 87–108 70–87
50g 120 60 108–135 70–87
100g 120 60 108–135 70–87
280g 120 120 135–168 135–168
500g 120 120 168–210 135–168
2kg 120 120 210–262 168–210
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 41
Defendant Quantity Criminal FSA Pre-FSA % Increase in
History Guidelines Mandatory Minimum
Category Range Minimum
Sentence If FSA
Inapplicable
Christopher 20.7 g IV 46–57 60 months 5% – 30%
Holcomb months
Anthony 13.1 g III 30–37 120 months 224% – 300%
Clardy months
Kenneth 124 g VI 151–188 240 months 28% – 59%
Brown months
Patrick 23.9 g V 70–87 120 months 38% – 71%
Moran months
There is no reliance interest in punishing these defen-
dants under the old law. And it would be fanciful to
suggest (and there is no indication) that members of
Congress who opposed the Fair Sentencing Act were so
chagrined that a handful of defendants might get
lighter sentences during a period of transition before the
new law became fully effective that they exerted them-
selves to prevent the inclusion in the Act of an express
statement that the new guidelines would override the
old statutory minimums for defendants sentenced after
the Act’s effective date. Realism suggests that the oppo-
nents were conciliated not by the omission of an ex-
press statement authorizing retroactive sentencing but
by sections 4 through 6 of the Act, which increase the
punishments for some drug offenses.
It would not be arbitrary to give these defendants the
benefit of the new law and the new guidelines, but not
defendants sentenced under the old law before the new
one was passed; for to allow those defendants to be
42 Nos. 11-1558, 11-1559, 11-1586 & 11-1758
resentenced would wreak havoc on finality in criminal
proceedings. It is true that the Sentencing Commission
has decreed that on November 1 of this year the new
guidelines will become retroactive, meaning that defen-
dants sentenced under the old guidelines will be eligible
to seek resentencing under the new ones. But those de-
fendants, if their crimes predated the effective date of the
Fair Sentencing Act, will continue to be subject to the
old statutory minimum sentences. As a result, the
number of defendants eligible to be resentenced will be,
in the Commission’s estimation, manageable (approxi-
mately 12,000). See News Release, “U.S. Sentencing Com-
mission Votes Unanimously to Apply Fair Sentencing Act
of 2010 Amendment to the Federal Sentencing Guidelines
Retroactively” (June 30, 2011), www.ussc.gov/ Legislative_
and_Public_Affairs/Newsroom/Press_Releases/20110630
_Press_Release.pdf (visited July 30, 2011).
All that can be said in favor of punishing under the old
law defendants not yet sentenced when the new one
took effect is that if Congress were omnicompetent it
would, out of an abundance of caution, have “expressly”
directed that sentences imposed after the new law went
into effect would be subject to the guideline amend-
ments that the new law ordained. An omnicompetent
Congress, leaving nothing to chance, would have made
this express statement even though the Supreme Court
has said in Great Northern and Marrero that courts
should treat a “fair” or “necessary” implication in a
new statute as sufficient to override the saving statute.
A few judges may think that Congress is omnicompetent;
more pretend to think that—what they really think
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 43
being that literal interpretation of statutes is necessary
to save the nation from judicial tyranny. Such ques-
tionable thinking can lead to gratuitously silly results
in particular cases—these cases, for example.
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