USA v. Christopher C. Bell, 09-3908 & 09-3914.
A jury convicted Christopher Bell of distributing more than five grams of cocaine base. See 21 U.S.C. § 841(a)(1). The district court sentenced him to 292 months in prison, revoked his previous term of supervised release, and sentenced him to an additional 60 months for violating the conditions of his supervised release by committing another crime.
After argument, at Bell's request, we ordered supplementary briefing regarding the application of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), to his case. After reviewing the ably prepared supplemental briefs of both parties, we conclude that the FSA is not retroactive and therefore does not apply to Bell's case.
Application of the Fair Sentencing Act
On August 3, 2010, President Obama signed into law the Fair Sentencing Act of 2010 ("FSA"). The FSA amended the Controlled Substances Act and Controlled Substances Import and Export Act by resetting the drug quantities required to trigger mandatory minimum sentences.
As is relevant here, the minimum quantity of crack required to trigger the mandatory minimum was increased from 5 grams to 28 grams. If Bell were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions.
The general federal savings statute, 1 U.S.C. § 109, provides that "[t]he 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 so shall expressly provide . . . ." "[T]he saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense." Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).
We have also recognized that the application of the savings statute extends beyond mere repeals and reaches amendments to criminal statutes as well unless the new law by its terms applies retroactively.
So if the savings statute applies to the FSA, the FSA in turn cannot operate retroactively to reduce Bell's sentence.
Like our sister circuits that have considered this issue, see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the savings statute operates to bar the retroactive application of the FSA.
Bell's arguments to the contrary are novel but ultimately unpersuasive. Ultimately, Bell's argument's fail because the FSA expressly amended the punishment portion of 21 U.S.C. § 841. No procedures or remedies were altered by the passage of the FSA.
The savings statute therefore prevents it from operating retroactively absent any indication from Congress. And since the FSA does not contain so much as a hint that Congress intended it to apply retroactively, it cannot help Bell here.
We also AFFIRM Bell's sentence, to which the Fair Sentencing Act of 2010 does not apply.
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