Sunday, June 05, 2011

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).


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

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


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