Case o' The Week: Baptist Fails to Convert Reinhardt, et al -- FSA and Retroactivity

The good news? The picture to the right shows President Obama at the Fair Sentencing Act (FSA) signing ceremony on August 3, 2011. The FSA reduces terrifically unjust sentencing disparities between crack and powder cocaine.

The really good news? Lyndon "L-Dog" Baptist, who sought Ninth Circuit relief under the FSA, drew a panel of Judges Betty Fletcher, Reinhardt, and Wardlaw -- three of the Circuit's (and, we think, the country's) best jurists.

The bad news? Baptist's small crack transaction, his federal sentencing, and the five-year mand-min sentence imposed at that sentencing, all preceded the effective date of the FSA. United States v. Baptist, 2011 WL 2150993 (9th Cir. June 2, 2011), decision available here.

Players: Judge B. Fletcher, Judge Reinhardt, and Judge Wardlaw, per curiam.

Facts: “L-Dog” Baptist orchestrated a 14 gram crack sale between an informant and his cousin. Id. at *1. Critically, the sale, his plea, and his federal sentence all took place before August 3, 2010: the date President Obama signed the Fair Sentencing Act into law. Id.

Had the sale taken place on August 4th, no mandatory minimum sentence would apply (the new trigger for a five-year mand min is 28 grams). Id. Because the sale took place before August 3rd, however, CD Cal District Judge Robert Whaley was forced to impose a five year term – saying it “made his stomach hurt,” that he “did not believe” five years was a “just sentence,” that it was “too much,” it was “disproportionate” and “wrong from a moral sense.” Id.

Issue(s): “[Baptist] seeks to have his pre-enactment sentence for his pre-enactment transaction vacated with instructions for resentencing pursuant to the Fair Sentencing Act. He argues that the Act should be applied retroactively to reduce the harsh and unfair sentence imposed on him before the Act’s passage of the version of § 841 that Congress has since modified.” Id.

Held: “Supreme Court precedent requires us to uphold Baptist’s sentence, which was imposed under the former sentencing regime, unless the Fair Sentencing Act expressly or impliedly provides for its reduction.” Id. at *2. “Like every other circuit court to have considered this question, we can find no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.” Id. at 3.

Of Note: How do three of the Ninth’s Best and Brightest really feel about the blatant injustice of Baptist’s sentence? “As individual judges, we believe that the result that we reach in this case – affirming a sentence of sixty months’ imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory – subverts justice and erodes the legitimacy of the criminal justice system . . . We are without power, however, to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence that the district judge understandably declared made his 'stomach hurt[ ]' because it was ‘disproportionate [with respect to] African Americans’ and ‘wrong from a moral sense.’ We agree wholeheartedly with the district judge. Nevertheless, unless the Supreme Court revises its view of the effect of the General Savings Statute as it applies to ameliorative sentencing laws, only Congress is able to achieve the Fair Sentencing Act’s promise ‘[t]o restore fairness to [f]ederal cocaine sentencing,’ by amending the Act so as to make it retroactive for all defendants whose sentences had not become final as of the date of its enactment.” Id. at *4 (fn. omitted).

Amen.

How to Use: Baptist was sentenced before the FSA came into effect. What about defendants whose conduct preceded the FSA, but who were sentenced after it went into effect? The panel gives us some dicta on steroids for that setting: “It would be especially egregious to require judges ‘to continue to require that courts impose unfair and unreasonable sentences on those offenders’ who have not yet been sentenced. Id. at *4 & n.2 (citations omitted).

For clients in this procedural posture, Baptist footnote 2 should be front and center for your sentencing memos and appeals.

For Further Reading: Last week AG Holder testified that the FSA should be retroactive!

Well, sort of. DOJ supports retroactivity of the FSA to the crack guidelines.

Well, sort of. Defendants with guns are out, and also excluded are defendants with “significant” criminal histories as well.

Finally, Holder opposes FSA retroactivity as to mandatory minimums. For a summary of this – nuanced – position from the DOJ, with many interesting links, see Professor Berman’s post here.


Image of the FSA signing ceremony from http://en.wikipedia.org/wiki/File:Obama_signing_the_Fair_Sentencing_Act.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Case o' The Week: Specific Loss from General Savings - Avila-Anguiano

The good news? The defendant is remanded for resentencing. By the time he gets back before the district court, the statute that created a ten-year mandatory minimum no longer exists!

The bad news? He still gets the ten (under a statute that no longer exists). United States v. Avila-Anguiano, _ F.3d _, 2010 WL 2735718 (9th Cir. July 13 2010), decision available here.

Players: Hard-fought appeal by Az. AFPD Saul Huerta and Defender Jon Sands.

Facts: A smuggler in Phoenix demanded payment from the alien’s relatives or threatened to kill his hostages. Id. at *1. ICE found the home where the hostages were held, along with an assault rifle and ammo. Id. Avila-Anguiano was identified as the man who had made the calls and threats; he was convicted of six federal counts after trial. Id. One count was a § 924(c) [use of a gun in the course of felony] which – at the time – carried a ten year mandatory minimum if an assault weapon was involved. Id. at *2.

Avila-Anguiano got some counts reversed on appeal; by the time re-sentencing came around the federal statute that had created that ten year mand-min had expired. Id. Nonetheless, the district court still imposed a ten year sentence for that count (with the sentences for other counts running consecutive). Id.

Issue(s): “This appeal presents the question, inter alia, as to whether U.S.S.G. § 2K2.4(b) [the guideline which refers to the statutory mandatory minimum] refers to the statute in effect at the time the crime was committed or the one in effect at the time of sentencing.” Id. at *1.

Held: “Under the circumstances presented by this case, we conclude that the statute in effect at the time that the crime was committed is the proper one to apply. We affirm the judgment of the district court.” Id.

Of Note: If you’ve been trained in the “One Book Rule,” this decision seems counter-intuitive. Recall this rule instructs the court to apply the guideline in effect at the time of sentencing, unless the defendant elects for the book in effect at the time of the offense. See generally United States v. Tucker, 982 F.Supp 1309, 1314 (N.D. Ill. 1997). The defendant picks the book.

Seems that under that rule, on remand the defendant should get to use the current guidelines with their cross-reference to the “new” statute with a lower mandatory-minimum sentence. Sadly, there’s another (obscure) rule: “The General Savings Provision.” Avila-Anguiano, 2010 WL 2735718, at *2. Codified at 1 USC § 109, the General Savings Provision abolishes the old common law presumption that a repeal of a statute ended non-final prosecutions under that statute. Id. The provision bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Id. at *4. It is sort of an anti-ex post facto rule: a defendant can’t be punished more harshly under laws that changed after the crime, but can be punished more harshly under repealed or expired laws that existed at the time of the offense. For Avila-Anguiano, this means getting a decade of federal custody under a statute that no longer existed at the time of sentencing.

How to Use: On March 17th the Senate passed the Fairness in Sentencing Act of 2010. This Act reduces (though does not eliminate) the sentencing discrepancy between crack and powder cocaine. Waiting for this reform has been like Waiting for Godot: much anticipated, never actually on the stage. If and when it passes, will the “General Savings Provision” of Avila-Anguiano ever come into play in relation to the Section 841 mand-mins? The issue may be moot if the final bill has explicit retroactivity provisions (or bars), but it is an interesting problem to anticipate.

For Further Reading: What is the most unjust Ninth Circuit decision in the last couple of years? A strong candidate is surely Hinkson. In this Idaho murder case the central government witness skated by without cross-examination on his extraordinary lies about his distinguished military service (including a phony Purple Heart). See blog here. In a remarkable (and politically-polarizing) decision, the en banc court actually rewrote the standard of review for “abuse of discretion” to preserve this conviction.

San Francisco’s intrepid Dennis Riordan sought a “super en banc” review; tragically, it was denied this week. Hinkson, 2010 WL 2757419 (9th Cir. July 14, 2010) (ord.).

If there’s ever a case where the Marine Corps' JAG officers should be writing an amicus for certiorari, Hinkson is it. And, if there’s ever a case that deserves a quick per curiam flip, Hinkson is the one. See Porter v. McCollum, 130 S. Ct. 447, 454 (2009) (discussing the particular respect juries afford to American veterans).


"Semper Fi" image from http://www.tsps-5.org/SemperFi.jpg/. AK47 image from http://www.militarypictures.info/weapons/AK47.jpg.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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