In an April 5, 2011 opinion (click here), Judge Michael Ponsor (U.S. District Court for the District of Massachusetts) held that although the defendant’s conduct predated the enactment of the Fair Sentencing Act, the court would apply the Fair Sentencing Act to a defendant charged with distributing crack cocaine, should the defendant be convicted. In this case, the defendant, Mr. Watts, has been charged with distribution of crack cocaine—more than 5 grams, but less than 28 grams—based on conduct from 2009; his trial date is April 25, 2011. Procedurally, the defense requested the ruling on whether, if convicted, the court would apply the Fair Sentencing Act to the defendant, after its motion to dismiss was denied.
The Fair Sentencing Act ("FSA") became law on August 3, 2010, and changed—from 5 grams to 28 grams—the weight of crack cocaine that triggers the 5 year mandatory minimum. The FSA has no express provision addressing whether it is to be applied retroactively to defendants whose conduct predates the enactment of the FSA but who will be sentenced after the provision’s enactment. This question has lead to a great deal of litigation and a large number of opinions about the retroactive application of the FSA.
Judge Ponsor’s opinion is a very strong statement regarding fairness in sentencing, especially with regard to the mandatory minimums for crack cocaine. With respect to retroactive application of the FSA, Judge Ponsor’s conclusion is that:
Congress’s obvious intent to immediately substitute the new mandatory statutes for the old in ongoing sentencing is underlined by a consideration already noted in this memorandum. The statute of limitations for the prosecution of drug crimes is five years. See 18 U.S.C. § 3282. Can it possibly be that Congress intended district court judges to continue to apply a sentencing regime that it had declared unfair and contrary to our fundamental principles of justice to defendants for five more years? The only conceivable answer to this question is “no.” Slip Op. at 49.
Thus he concludes that that the General Savings Statute, 1 U.S.C. § 109, is not the “straightjacket” that the government urges and that he will apply the FSA to Mr. Watts if Mr. Watts is convicted.
It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by “fair implication,” to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing. Slip Op. at 42.
For its part, the Second Circuit’s opinion in United States v. Acoff (rejecting retroactive application of the Fair Sentencing Act where defendant received a below-the-mandatory-minimum sentence prior to the enactment of the FSA), is available here.