United States v. Jemaine Sidney

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, RAYMOND W. GRUENDER and STEPHEN N. LIMBAUGH, JR.. Stephen N. Limbaugh, Authoring Judge (PUBLISHED) [3816615] [11-1216]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1216
___________
United States of America,

*
*
*
* Appeal from the United States
* District Court for the
* District of Nebraska.
*
*
*
*
___________

Appellee,
v.
Jermaine Laron Sidney,
also known as Jizzle,
Appellant.

Submitted: June 17, 2011
Filed: August 10, 2011
___________
Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and LIMBAUGH,1 District
Judge.
___________
LIMBAUGH, District Judge.
This case presents a variation on a theme from a series of recent cases all
holding that the Fair Sentencing Act of 2010 (FSA), which increased the threshold
amounts necessary to trigger mandatory minimum sentences in crack cocaine cases,
is not retroactive. The published cases alone include United States v. Brewer, 624
F.3d 900, 909-10 n.7 (8th Cir. 2010); United States v. Spires, 628 F.3d 1049, 1055
1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.

Appellate Case: 11-1216

Page: 1

Date Filed: 08/10/2011 Entry ID: 3816615

(8th Cir. 2011); United States v. Finch, 630 F.3d 1057, 1063 (8th Cir. 2011); United
States v. Smith, 632 F.3d 1043, 1047-49 (8th Cir. 2011), United States v. Neadeau,
639 F.3d 453, 456 (8th Cir. 2011); and United States v. Woods, 642 F.3d 640, 644-45
(8th Cir. 2011). The variation here, as we understand defendant’s argument, is that
he should have been allowed to withdraw his plea of guilty for the reason that the
change in the penalty provisions for his offense constitutes a “fair and just reason for
requesting the withdrawal” as provided under Federal Rule of Criminal Procedure
11(d)(2)(B). Because this argument ultimately depends on whether the FSA is
retroactive, and because this Court has definitively determined that it is not
retroactive, the judgment is affirmed.
The charge to which defendant pleaded guilty was possession with intent to
distribute 50 grams or more of crack cocaine on or about March 12, 2009, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1), and the plea was entered pursuant to a plea
agreement on December 11, 2009. Then, months later, on August 3, 2010, the FSA
was signed into law, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010), which, inter
alia, increased the quantity of crack cocaine required to impose the mandatory
minimum sentence of ten years from 50 grams to 280 grams, 21 U.S.C. §
841(b)(1)(A)(ii)-(iii), (B)(ii)-(iii). On January 13, 2011, more than a year after the
plea was entered, and after several continuances at defendant’s behest (all designed
to delay the sentencing until after enactment and implementation of the FSA), the trial
court2 overruled defendant’s motion to withdraw his plea of guilty and sentenced him
to the mandatory minimum of 120 months imprisonment.
At the outset, defendant acknowledges that this Court “appears to have held that
the general Federal Savings Statute bars the retroactive application of the FSA.” He

2

The Honorable Richard G. Kopf, United States District Court Judge for District
of Nebraska.
-2-

Appellate Case: 11-1216

Page: 2

Date Filed: 08/10/2011 Entry ID: 3816615

also agrees “that if the FSA does not apply to him there was no error in denying his
motion to withdraw his guilty plea.” The savings statute, 1 U.S.C. § 109, states:
The 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 shall so expressly provide, and such statute shall be treated
as still remaining in force for the purpose of such penalty, forfeiture, or
liability.
As this Court held in Brewer, “. . . the Fair Sentencing Act contains no express
statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109,
requires us to apply the penalties in place at the time the crime was committed.”
United States v. Brewer, 624 F.3d at 909 n.7.; United States v. Smith, 632 F.3d at
1047. This holding notwithstanding, defendant claims that his case is different
because unlike the defendants in Brewer and Smith, who were sentenced before the
FSA was passed, he was sentenced after the FSA was passed. He explains that
because he “was in the pipeline pending sentencing. . .he [should] be sentenced under
the law in effect at the time he was sentenced.” Since the briefing, however, this
Court has ruled in other cases that the timing of the sentence is immaterial, and that
the controlling factor is the date on which the crime was committed. And accordingly,
the defendants in those cases suffered no prejudice by the denial of continuances that
would have postponed their sentencing dates until after the passage of the FSA and
the implementation of new Sentencing Guidelines. See United States v. Woods, 642
F3d. 640, 644-45 (8th Cir. 2011); United States v. Hawthorne, No 10-1653, 2011 SL
1237618, at *1 (8th Cir. Apr. 5, 2011) (per curiam); United States v. McBride, No. 102689, 2011 WL 2206725, at *2 (8th Cir. June 8, 2011) (per curiam). Nonetheless,
defendant offers several other arguments in favor of the retroactive application of the
FSA, and in turn, the propriety of this motion to withdraw his plea.
First, he claims that the charge to which he pleaded guilty “does not state a
valid offense after the passage of the Fair Sentencing Act” in that “A charge of
-3-

Appellate Case: 11-1216

Page: 3

Date Filed: 08/10/2011 Entry ID: 3816615

possession with intent to distribute 50 grams or more of cocaine base states an entirely
different offense with entirely different penalties than possession with intent to
distribute more than 280 grams or more of cocaine base.” By this we think that
defendant is claiming that the offense has been changed altogether — not just the
penalty provision alone so that the savings statute, which applies to penalties only,
would not be implicated. In any event, this Court disagrees. There is only one offense
for possessing with intent to distribute crack cocaine, and the FSA has merely changed
the quantities of crack cocaine that set the levels of punishment for the offense. See
United States v. Moss, 252 F.3d 993, 1002 (8th Cir. 2001) (“Congress intended drug
quantity to be a sentencing consideration, not an element of the offense.”)
Next, defendant argues, somewhat amorphously, that “The offense to which
he pled guilty no longer serves a valid legislative purpose.” In support, he cites
Hamm v. City of Rock Hill, 379 U.S. 306 (1964), for the proposition that “The
Supreme Court imputes to Congress ‘an intention to avoid inflicting punishment at a
time when it can no longer further any legislative purpose, and would be unnecessarily
vindictive.’” This argument, however, was later rejected in Warden v. Marrero, 417
U.S. 653, 660 (1974), the most recent case in which the Supreme Court analyzed the
general savings clause. Despite acknowledging the “ameliorative” effect of the repeal
to defendants whose crimes were committed after the repeal of a federal drug statute
that barred parole to a defendant sentenced and imprisoned before the repeal,
Marrero, nonetheless, held that the savings clause precluded retroactive application
of the repeal. Id. at 657-64.
On this same point, defendant cites United States v. Douglas, 746 F. Supp. 2d
220 (D. Me. 2010), and several district court cases that relied on Douglas, all of which
held that failure to apply the new mandatory minimums to all defendants who are
sentenced after the enactment of the FSA is contrary to Congressional intent. See,
e.g., United States v. English, 757 F. Supp. 2d 900 (S.D. Iowa 2010); United States
v. Whitfield, No. 2:10CR13, 2010 WL 5387701, at *2 (N.D. Miss. Dec. 21, 2010);
-4-

Appellate Case: 11-1216

Page: 4

Date Filed: 08/10/2011 Entry ID: 3816615

United States v. Gillam, 753 F. Supp. 2d 683 (W.D. Mich. 2010). Douglas and its
progeny base this position, in large part, on the fact that the FSA mandated that the
Sentencing Commission “make such conforming amendments to the Federal
sentencing guidelines as the Commission determines necessary to achieve consistency
with other guideline provisions and applicable law as soon as practicable, and in any
event not later than 90 days after the date of enactment of this Act,” Pub. L. 111-220
§ 8, 124 Stat. 2372, 2374. Notably, the Sentencing Commission has included in its
amendments that the new Guidelines are retroactive such that the new Guidelines
apply to all defendants, regardless of the date of their crimes or sentencings.
Defendant argues that the inconsistency that would thus be created — defendants
whose crimes were committed before the enactment but sentenced after the enactment
would be given the benefit of new, reduced Sentencing Guidelines, but not the new,
reduced mandatory minimums — cannot have been intended. United States v.
Douglas, 746 F. Supp. 2d at 229. Defendant concludes that Congress’ actions in
reducing the penalties for crack cocaine and directing the Sentencing Commission to
promulgate Guideline changes on an emergency basis “necessarily implies that the
rejected provisions [the old mandatory minimums] should no longer have force.”
To be sure, the District Court in Douglas has now been affirmed by the First
Circuit, United States v. Douglas, 644 F.3d 39, 2011 WL 2120163 (1st Cir. May 31,
2011), with essentially the same analysis, focusing on the “necessary implication” of
the Act. The Court ruled that “It seems unrealistic to suppose that Congress strongly
desired to put the [reduced] guidelines in effect by November 1 even for crimes
committed before the FSA but balked at giving the same defendants the benefit of the
newly enacted [reduced] mandatory minimums,” surmising that “it is likely that
Congress would wish to apply the new minimums to new sentences.” Id. at *4
(emphasis in original); see also United States v. Rojas, ___ F.3d ___, No. 10-14662,
2011 WL 2623579 (11th Cir. July 6, 2011).

-5-

Appellate Case: 11-1216

Page: 5

Date Filed: 08/10/2011 Entry ID: 3816615

Although the Supreme Court has indeed held that the savings statute may be
superseded if that result is compelled either by an express declaration in the new
legislation or by the “fair implication” from it, Marrero, 417 U.S. at 659-60, n.10
(citing Great Northern R. Co. v. United States, 208 U.S. 452, 465-66 (1908)), it is
enough of an answer to defendant’s point that this Court has already held in Smith,
supra, that no such implication can be gleaned from the FSA. In rejecting the fair or
necessary implication argument, this Court explained that,
. . . the question is not whether Congress intended to “release or
extinguish” the prior penalties. That is always the case. The question is
whether Congress intended to exempt the repealing act from the general
savings statute. Section 109 provides that such an exemption must be
“expressly provide[d]” in the repealing statute. Even if we may
disregard § 109's clear requirement that an exemption be “expressly”
declared in the repealing act, which we doubt, Smith fails to call our
attention to any language in the FSA from which an intent to exempt
could be inferred.
Smith, 632 F.3d at 1049. The prospect of fair or necessary implication, this Court
added, is a “formidable hurdle,” id., and “‘only the narrowest of spaces is left for
argument that the repealer implies that it is applicable to pending cases,’” id. (citing
United States v. Blue Sea Line, 553 F.2d 445, 449 (5th Cir. 1977)).
To the extent that defendant builds his “necessary implication” argument on the
apparent inconsistency in the application of the new Sentencing Guidelines versus the
statutory mandatory minimums — a sub-issue not expressly addressed in Smith — the
result is no different. The statutory mandatory minimums have always trumped the
Guidelines, even where amended Guidelines would (absent the mandatory minimum)
have otherwise called for a shorter sentence. See United States v. Peters, 524 F.3d
905, 907 (8th Cir. 2008). Consistency between the two has not been required because
the mandatory minimum sentence controls where it results in longer sentences than
do the Guidelines. It follows that although the FSA directed the Commission to adopt
-6-

Appellate Case: 11-1216

Page: 6

Date Filed: 08/10/2011 Entry ID: 3816615

new Guidelines, that mandate does not necessarily or even fairly imply that the
Guidelines and the mandatory minimums must both be retroactive such that they both
apply to pre-FSA conduct. See, e.g., United States v. Peterson, __ F. Supp. 2d ___,
2011 WL 797317, at *10 (D.N.D. March 1, 2011); United States v. Santana, 761 F.
Supp. 2d 131, 156 (E.D.N.Y. 2011).
In the end, the fact remains that Congress could easily have included a single
sentence in the FSA to give it retroactive effect, but for whatever reason, it did not do
so. It is beyond the province of this Court to do so now.
Defendant’s remaining arguments deserve only short shrift. He claims that the
failure to apply the FSA to him retroactively “results in penalties that violate the
United States Constitution” — in particular, the Ex Post Facto Clause, the Equal
Protection Clause, and the Eighth Amendment prohibition against cruel and unusual
punishment. The Ex Post Facto Clause, of course, forbids the application of any law
that increases punishment to preexisting criminal conduct. U.S. Const. art. I, § 9, cl.
3; Miller v. Florida, 482 U.S. 423, 429-35 (1987). Defendant maintains that
“application of the harsher Guidelines in effect at the time the offense was committed,
now abrogated by the FSA, would potentially violate the ex post facto clause.” This
is a perplexing argument, indeed, because the FSA did not create harsher penalties for
defendants who committed crimes before the FSA’s enactment, it simply reduced the
penalties for those defendants who committed crimes after the enactment. There is
no ex post facto violation.
Then, as we understand defendant’s equal protection claim, because the FSA
was enacted to correct the racially disparate impact of the crack-to-cocaine ratios
under the Sentencing Guidelines, the failure to implement the FSA retroactively in
favor of those defendants whose crimes were committed before the FSA was enacted
will deny those defendants equal protection of the laws. This claim, however, ignores
well-settled precedent that the old crack-to-cocaine ratios are not equal protection
-7-

Appellate Case: 11-1216

Page: 7

Date Filed: 08/10/2011 Entry ID: 3816615

violations in the first place. See, e.g., United States v. Clary, 34 F.3d 709, 712 (8th
Cir. 1994) (Congress clearly had rational motives for creating the distinction between
crack and powder cocaine); United States v. McClellon, 578 F.3d 846, 861 (8th Cir.
2009) (“. . .a change in the powder-to-base ratio in the Guidelines and the introduction
of bills in Congress to change or eliminate the ratio. . .[do not] warrant a different
conclusion”).
Finally, this Court has repeatedly rejected the argument that the mandatory
minimum sentences imposed under the old crack-to-cocaine ratio are “unreasonably
harsh penalties” in violation of the Eighth Amendment. See, e.g., United States v.
Mendoza, 876 F.2d 639, 641 (8th Cir. 1989); United States v. Neadeau, 639 F.3d 453,
456 (8th Cir. 2011). Suffice it to say that there is no reason to depart from those
holdings now.
In a separate point, defendant again maintains that “[t]he general savings statute
should not prevent this Court from allowing withdrawal of the plea,” this time arguing
specifically that “[t]he statutory change is procedural or remedial, thus exempt from
the general savings statute’s reach,” and “[t]he statutory change redefines a term, and
therefore does not trigger the general savings statute.” Once again, though, these
points merit little attention. This Court has already held in Smith that the statutory
change is substantive, rather than procedural or remedial. Smith, 632 F.3d at 1048.
Although defendant is correct that “[t]he general savings statute does not ordinarily
apply to remedial or procedural changes,” this Court held that “[t]he FSA is a
paradigmatic example of a statute intended to ameliorate substantive criminal
penalties.” Id. (emphasis added). The same holding applies to the notion that the
savings statute is not implicated when a new statute simply redefines a term, which
defendant identifies as a corollary to the procedural and remedial exception. The FSA
does not simply “redefine the class of persons to whom the mandatory minimums
apply,” as defendant claims, but instead amends the punishment portion of the statute,
thus invoking the savings statute. See United States v. Bell, 624 F.3d 803, 815 (7th
-8-

Appellate Case: 11-1216

Page: 8

Date Filed: 08/10/2011 Entry ID: 3816615

Cir. 2010); United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011). In a last
ditch effort, defendant invokes the “rule of lenity,” which provides that where there
is an ambiguity in a criminal statute, the statute is to be construed in favor of the
defendant and against the government. Having found no ambiguity in the FSA, this
claim, too, is denied.
For the foregoing reasons, this Court holds that the FSA is not retroactive, even
as to defendants who were sentenced after the enactment of the FSA where their
criminal conduct occurred before the enactment. Accordingly, there was no “fair and
just reason” for allowing defendant to withdraw his plea of guilty under Rule 11. The
judgment is affirmed.
______________________________

-9-

Appellate Case: 11-1216

Page: 9

Date Filed: 08/10/2011 Entry ID: 3816615