FILED

JUL 14 2011
UNITED STATES DISTRICT CoURT clerk. u.s. magnet e. aankrupr¢y

F()R THE ])]STR[CT ()F C()LUM];[A Courts for the D|str|ct of Co|umbla
UNITED STATES OF AMERICA,
v.  Criminal Case No. 06-315 (GK)
DEREK BLANDON, .
Defendant.
MEMORANDUM OPINION

Defendant’s sentencing hearing was held on May 24, 201 1. Two very significant legal issues
were raised in the sentencing memoranda submitted by counsel prior to the hearing: (l) whether the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), which reduced the
mandatory minimum penalties for crack cocaine, among other changes in pre-existing law, should
be applied retroactively to defendants who committed their offenses prior to the effective date
(August 3, 2010) of that Act, but are being sentenced subsequent to its passage; and (2) what ratio
of crack cocaine to powder cocaine should be adopted by the Court in calculating the Defendant’s
appropriate advisory Guideline Range. Extensive legal argument was presented by all counsel on
the retroactivity issue. Because the Govemment had had very little time in which to file its response
to the Defendant’s Memorandum in Aid of Sentencing, filed on May 19, 2011, and because there
is a great deal of emerging case law on the retroactivity issue, sentencing was continued to July 7,
2011; the Govemment was given until June 10, 2011, to file a further memorandum of law, and

Defendant was given until June 24, 2011, to respond.‘

‘ Many members of Defendant’s family attended the hearing, and the Court was

informed that one of them would like to speak for all, in support of Defendant’s request for a
sentence of only 60 months. In order to not inconvenience family members by requiring them to
retum for the July 7 hearing, Defendant’s aunt was allowed to present what was clearly a heartfelt
plea on behalf of leniency for the Defendant.

Two major opinions have been written by district court judges holding that the Fair
Sentencing Act may be applied to those defendants who have either pled guilty or were found guilty
prior to August 3, 2010, but will be sentenced after that date. There is simply no point in reinventing
the wheel. Therefore, the Court adopts the arguments in United States v. Douglas, 746 F. Supp. 2d
220 (D. Me. 2010), and United States v. Watts, _ F. Supp. 2d. _, 2011 WL 1282542 (D. Mass.
April 5, 201 1).2 Judge Ponsor’s careful, thorough, and very powerful opinion in Watts addresses all
of the issues raised in the many different district court opinions. His eloquent introductory words
deserve to be quoted in full:

The broader question is whether federal trial courts will be required,
for roughly the next five years, to perpetuate a congressionally
recognized injustice. lt is disturbing enough when courts, whose
primary task is to @ justice, become themselves the instruments of
inj ustice, as in the history of our nation it must be acknowledged they
sometimes have. But this discomfort reaches its zenith when the
injustice has been identified and formally remedied by Congress
itself. For a trial judge, the distastefulness of being forced to continue
imposing a rejected penalty becomes unendurable in light of the fact
that Congress acted partly because the injustice is racially skewed
and, as everyone now agrees, will fall disproportionately upon Black
defendants . . . (emphasis in original).

There is no question that the touchstone inquiry in the retroactivity analysis under the general

federal savings provision (l U.S.C. § 109) ("the Savings Clause") is determination of Congressional

intent. On that issue, as both Douglas and Watts demonstrate, there can be no real question about

')

“ The Court is well aware that ten circuit courts of appeals have ruled to the contrary.
Govt. Mem. of Law, June 14, 2011, pp. 5-17. However, it is significant that all of the cases cited
by the Government, except U.S. v. Fisher, 635 F.3d 336 (7th Cir. 201 1), were in a different
procedural posture than this case; they involved defendants who had been sentenced prior to passage
of the FSA and were bringing post-sentence appeals. Def. Mem. of Law, June 24, 2011, pp. 8-9.
The Court of Appeals for the First Circuit has held that the FSA applies retroactively. United States
v. Douglas, _ F.3d __, 2011 WL 2120163 (1stCir. May 31, 2011). Our Circuit has not yet ruled
on this issue.

_Q_

the intent of Congress in enacting the legislation in question, since its very Preamble states that the
Act’s goal is to "restore faimess to F ederal cocaine sentencing." As Judge Homby asked in Lg@§,
746 F. Supp.2d at 229, "what possible reason could there be to want judges to continue to impose
new sentences that are not ‘fair’ over the next five years while the statute of limitations runs?"
(emphasis in original). Judge Ponsor posed the same question in slightly different words: "can it
possibly be that congress intended district court judges to continue to apply a sentencing regime that
it had declared unfair and contrary to our fundamental principles of justice to defendants for five
more years? The only conceivable answer to this question is ‘no."’ l, 201 1 WL 1282542 at
*17.

For all the reasons set forth in detail in   and W_att§, this Court also concludes that the
Savings Clause does not apply to the Fair Sentencing Act, that "the will of Congress [is] manifested
. . . by both fair and necessary implication." The fact that Congress did not do a perfect job of
drafting this piece of legislation (by simply including two or three sentences explicitly making the
FSA retroactive), does not mean that we cannot divine its intentions by scrutinizing both the
legislative history and the context in which the legislation was enacted.

WHEREFORE, it is this L%day of July, 2011, hereby

ORDERED, that both the F air Sentencing Act of 20 1 0, as well as the Amendments recently
adopted by the United States Sentencing Commission to implement the Fair Sentencing Act will be
applied retroactively in this case.

Gladys Ke]sslerq l
United States District Judge

_3_

