     Case: 10-31085   Document: 00511637836   Page: 1   Date Filed: 10/19/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                 October 19, 2011

                                 No. 10-30852                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA

                                          Plaintiff - Appellee

v.

SHAWNA TICKLES, also known as Shawna Tickless

                                          Defendant - Appellant



                  Appeal from the United States District Court
                      for the Middle District of Louisiana




                                 No. 10-31085


UNITED STATES OF AMERICA

                                          Plaintiff - Appellee

v.

JABAR GIBSON,

                                          Defendant - Appellant
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                 Appeal from the United States District Court
                     for the Eastern District of Louisiana



Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:
      The court considered these cases jointly without oral argument because
they raise a single issue: whether these defendants, who were convicted inter
alia of possession with intent to distribute crack cocaine, were entitled to be
sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-
220, 124 Stat 2372, when their illegal conduct preceded the Act but their
sentencing proceedings occurred post-enactment. The issue is the retroactivity,
or partial retroactivity, of the FSA, a statute intended by Congress to “restore
fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the
previous 100:1 ratio between thresholds for sentences for crack and powder
cocaine offenses. We are one among many circuit courts that have thoroughly
vetted this issue, and we have little to add to the discussions of others. As will
be seen below, we side with those courts that have denied retroactive
application.
      The defendants in these unrelated cases, Shawna Tickles and Jabar
Gibson, were each sentenced to the statutory minimum of 120 months for
possession with intent to distribute crack cocaine. Tickles was convicted by a
jury for possession with intent to distribute 50 grams of crack cocaine and she
was sentenced to the pre-FSA statutory minimum of 120 months. Jabar Gibson
pled guilty to possession with intent to distribute five grams of crack cocaine, as



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well as other drug charges. He was sentenced to the 120 month statutory
minimum sentence for the crack cocaine offense.
      The unusual procedural posture of these cases should, however, be noted.
In Gibson’s case, the district court had expressly refused retroactive application
of the FSA, while Tickles failed to preserve the issue and advocated plain error
in this court. During the spring of 2011, the United States sought in its
appellate briefing to uphold the sentences that each court imposed without
applying the FSA. In August, however, the United States filed in each appeal
a Supplemental Brief with Request to Remand urging the opposite result: that
each sentence be vacated and the cases remanded for re-sentencing in
accordance with the FSA.       To achieve this position in Tickles’s case, the
government had to take the additional position, contrary to Tickles herself, that
the retroactivity issue had been properly preserved in the trial court.
      On the merits, the government’s Supplemental Brief had to admit the
simplicity of its original position, founded largely on the Savings Statute,
1 U.S.C. § 109, which holds that the repeal of a criminal statute does not
extinguish liability for violations of that statute unless the repealing statute so
states expressly.   Because the FSA does not expressly extinguish liability
computed under the former threshold quantities for crack cocaine offenses, the
prior law should apply to all conduct that predated enactment of the FSA on
August 3, 2010. The Supplemental Brief, in contrast, adopts the reasoning of
a few courts that have applied FSA where the illegal conduct predated its
enactment but the sentencing occurred afterward. The government now reads
the “intent” of Congress as creating “a necessary implication” that the revised
statutory penalties must supersede the former penalty scheme “in all future
sentencings.” To the government, “the analysis [now] turns on much more than
the presence or absence of an express statement extinguishing incurred


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liability.”   Needless to add, the appellant’s briefs, written before the
government’s supplemental briefs, generally accord with the new analysis.
       This court has been influenced, if not bound, by our prior determination
that the FSA was not retroactively applicable, despite its beneficent intentions,
to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379,
384 (5th Cir. 2011). Doggins reflected the common view of circuit courts. United
States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Brewer,
624 F.3d 900, 909 n.7 (8th Cir. 2010); United States v. Bell, 624 F.3d 803, 814-15
(7th Cir. 2010); United States v. Gomez, 621 F.3d 1343, 1346 (11th Cir. 2010)
(per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010). We
have considered carefully the opinions of circuits that have spoken more recently
to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d
195, 199-200 (3rd Cir. 2011); United States v. Rojas, 645 F.3d 1234, 1237-38
(11th Cir. 2011); United States v. Douglas, 644 F.3d 39, 42-46 (1st Cir. 2011);
United States v. Fisher, 635 F.3d 336, 339-40 (7th Cir. 2011); United States v.
Acoff, 634 F.3d 200, 202-03 (2d Cir. 2011); Unites States v. Spires, 628 F.3d 1049,
1055 (8th Cir. 2011). Having done so, we are persuaded by those that have
relied heavily on Section 109 and its application to this statute, which fails to
contain an express statement repealing the prior sentencing structure
retroactively. See Fisher, 635 F.3d at 340-41; Acoff, 634 F.3d at 202-03; Spires,
628 F.3d at 1055; see also United States v. Holcomb, No. 11-1558, 2011 WL
3795170 (7th Cir. Aug. 24, 2011) (Judge Easterbrook, denying rehearing en
banc). We conclude that the penalties prescribed by the FSA do not apply to
federal criminal sentencing for illegal conduct that preceded the FSA’s
enactment.1


       1
         As to Tickles, this court determines the standard of review for ourselves. United
States v. Molina-Solorio, 577 F.3d 300, 303 (5th Cir. 2009). There was no error, much less

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       The sentences imposed by the district courts in each of these cases are
AFFIRMED.




plain error, in the district court’s sentencing decision. United States v. Olano, 507 U.S. 725
(1993).

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CARL E. STEWART, Circuit Judge, dissenting.


      These cases present a straightforward question of statutory interpretation:
whether Congress intended that all federal cocaine offenders immediately
receive fair sentences, or whether Congress intended that a subset of federal
cocaine offenders receive unfair sentences merely on the basis of the date and
time of their underlying offenses. To conclude the latter is not only unfair, but
inconsistent with all of the congressional deliberation that preceded the final
passage of the Fair Sentencing Act. Moreover, the panel majority, and the
circuits which support its view, unduly hinder the amelioration of a chronic
injustice. For the following reasons, I dissent from the approach taken by the
majority.
      The Fair Sentencing Act of 2010 has increased the amount of crack cocaine
involved in a federal drug offense that is necessary to trigger mandatory
minimum penalties under 21 U.S.C. § 841. In United States v. Doggins, 633 F.3d
379 (5th Cir. 2011), we held that the Fair Sentencing Act does not apply
retroactively to persons sentenced prior to the Act’s enactment. The issue in
these cases, which was left over from Doggins, is whether defendants whose
cocaine offenses were committed prior to the enactment of the Act, but who were
sentenced following the enactment of the Act, should receive reduced penalties
pursuant to the Fair Sentencing Act’s revisions.
      It is rare that Congress’s intent is as easily discernible as it is here. The
ameliorative purpose of the Fair Sentencing Act is reflected most obviously in its
name. Moreover, as expressed in its preamble, the Fair Sentencing Act’s explicit
purpose is “[t]o restore fairness to Federal cocaine sentencing.” Underlying this


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purpose was Congress’s determination that the prior 100:1 sentencing ratio for
crack cocaine offenses to powder cocaine offenses was fundamentally unfair. In
addition to its other provisions, the Act granted emergency authority for the
United States Sentencing Commission to revise the federal sentencing
guidelines in accordance with the Act within 90 days.
      “The necessary inference is that the will of Congress was for the FSA to
halt unfair sentencing practices immediately.” United States v. Rojas, 645 F.3d
1234, 1240 (11th Cir. 2011). As expressed by the district court in United States
v. Whitfield, “[t]his court is hesitant to impose a sentence that Congress has
deemed unfair. Holding otherwise appears to this court as illogical.” No. 2:10-
CR-13, 2010 WL 5387701, at *2 (N.D. Miss. 2010). “That Congress wanted the
new ‘fair’ sentences to apply to everyone sentenced after the Fair Sentencing Act
became law, not just to some, is the necessary implication of what it did.” United
States v. Holcomb, No. 11-1558, 2011 WL 3795170, at *17 (7th Cir. 2011)
(Williams, J., dissenting from denial of rehearing en banc).
      In support of the conclusion that the Fair Sentencing Act should not apply
to all federal cocaine offenders sentenced after its enactment, the majority relies
on the general savings statute, 1 U.S.C. § 109. The Supreme Court, however,
has explained that the savings statute “cannot justify a disregard of the will of
Congress as manifested, either expressly or by necessary implication, in a
subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465
(1908).
            All that can be said in favor of punishing under the old law
      defendants not yet sentenced when the new one took effect is that
      if Congress were omnicompetent it would, out of an abundance of
      caution, have “expressly” directed that sentences imposed after the
      new law went into effect would be subject to the guideline


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      amendments that the new law ordained. . . . Such questionable
      thinking can lead to gratuitously silly results in particular cases—
      these cases, for example.


Holcomb, 2011 WL 3795170, at *19 (Posner, J., dissenting from denial of
rehearing en banc).
      The will of Congress, as expressed in the Fair Sentencing Act’s substance,
preamble, and title, will be disregarded by the courts’ continued imposition of
severe penalties which Congress has explicitly determined to be unfair.
Accordingly, I agree with a number of our sister circuits that the provisions of
the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the
statute’s enactment, regardless of whether the underlying offense conduct
occurred prior to the Act’s enactment. See United States v. Douglas, 644 F.3d 39
(1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon,
648 F.3d 195 (3d Cir. 2011).
      The majority opinion would continue to impose disproportionately harsh
sentences of imprisonment on many crack cocaine offenders, despite Congress’s
clear and obvious determination that such penalties are unfair. For this reason,
I respectfully dissent.




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