The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court
ORDER ON APPLICABILITY OF FAIR SENTENCING ACT OF 2010 Before the Court is Defendant Casey Mae Peterson's Motion for Application of the Fair Sentencing Act of 2010 (Doc. #424). Defendant Rapheal Jamell Murphy, also indicted on a crack cocaine offense, filed a sentencing memorandum seeking application of the Fair Sentencing Act of 2010 in his case (Doc. #167). Both parties participated in the motion hearing on February 9, 2011. The Court, having carefully considered the briefs and arguments of the parties, now issues this memorandum opinion and order.
In reviewing all of the introduced bills and the transcripts of the hearings regarding enactment of the Fair Sentencing Act of 2010, it is obvious to the Court that the statute was enacted as the product of a series of compromises - compromises that were apparently necessary to obtain bipartisan support of the bill. Under the circumstances and with all due respect to the contrary view, it simply strains reason to conclude that Congress intended by implication - fair, necessary, or otherwise - to apply the FSA retroactively in cases where the offense pre-dates enactment, but sentencing occurs afterwards. Peterson's motion for application of the FSA (Doc. #424) is DENIED. Murphy's request in his sentencing memorandum (Doc. #167) for application of the FSA is also DENIED.
The Grand Jury indicted Peterson for conspiracy to possess with intent to distribute and distribute in excess of 50 grams of cocaine base, in excess of 500 grams of a mixture and substance containing a detectable amount of cocaine, and marijuana. The indictment details events occurring from January 1, 2008 to December 10, 2009.
On April 26, 2010, Peterson pled guilty to the charge, admitting to participation in a drug trafficking conspiracy in which it was reasonably foreseeable that more than 150 grams, but less than 500 grams of cocaine base was involved. The plea agreement and the Court advised Peterson that she faced a mandatory life sentence due to two previous drug-related convictions certified by the government. Since that time, Congress has increased the crack quantity required to trigger the minimum mandatory life sentence from 50 grams to 280 grams. Peterson has not contested her admission to participation in a drug trafficking conspiracy in which it was reasonably foreseeable that the conspiracy involved between 150 grams and 500 grams of crack. Peterson's sentencing is set for March 7, 2011.
On August 19, 2009, the Grand Jury indicted Rapheal Jamell Murphy on one count of conspiracy to possess with intent to distribute and distribute in excess of five grams of cocaine base and four counts of distribution of cocaine base. The indictment details events occurring from November 2007 through March 2009.
Murphy appeared before the Court for a change of plea hearing on August 3, 2010. Murphy pled guilty to one count of distribution of cocaine base. Pursuant to a written plea agreement, the United States agreed to withdraw certification of one of two prior felony drug convictions. The Court advised Murphy he faced a statutory mandatory minimum sentence of five years imprisonment. Murphy's sentencing is scheduled for March 3, 2011.
On February 2, 2011, the Eighth Circuit, overruling precedent, decided that only drug quantities involved in the count of conviction can trigger a mandatory minimum sentence for a discrete violation of 21 U.S.C. § 841(a). United States v. Resinos, - - F.3d - -, 2011 WL 309620, at *2 (8th Cir. 2011). In other words, a court can no longer aggregate the weight of controlled substances from dismissed counts as relevant conduct when determining applicability of mandatory minimum sentences. Murphy has pled guilty to a single count of distribution of 2.53 grams of cocaine base. The applicability of the FSA is of little significance in Murphy's case given the Eighth Circuit's recent decision in Resinos.
The narrow issue before the Court is whether the Fair Sentencing Act of 2010 (hereafter "FSA") applies to defendants who were convicted before the statute was enacted, but are sentenced afterwards. Neither Peterson nor Murphy are asking this Court to retroactively apply the FSA to a sentence imposed prior to its enactment, but are instead requesting the Court apply the version of 21 U.S.C. § 841(b)(1) in effect on the date of their upcoming sentencing hearing.
In order to fully analyze the issue, a comprehensive review of the legislative history leading to the FSA's enactment is helpful.
1. Legislative History of the FSA
Congress has struggled with how to treat cocaine base (crack) since it hit the streets in the early 1980's. When enacting the Anti-Drug Abuse Act of 1986 (hereafter "the 1986 Act"), Congress believed crack was much more dangerous than powder cocaine in that:
(1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed to their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and
(5) crack's potency and low cost were making it increasingly popular.
Kimbrough v. United States, 552 U.S. 85, 95-96 (2007). At the time, crack was considered to be a scourge in the community. In order to protect the public, Congress adopted a 100:1 ratio, treating one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. 21 U.S.C. § 841(b)(1)(A) (1986). The 1986 Act mandated that a person convicted of possession of 5 grams or more of crack be sentenced to a minimum of five years in prison and no more than 40 years. Id. A person possessing 50 grams or more of crack must be sentenced to a minimum term of 10 years in prison and may be sentenced to life. Id. In setting the offense levels for crack and powder cocaine, the Sentencing Commission also adopted the 100:1 ratio. U.S.S.G. § 2D1.1(c) (setting base ...