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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CM-1331

                      ROBERT E. WASHINGTON, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                               (CMD-11484-13)

                     (Hon. John F. McCabe, Jr., Trial Judge)

(Submitted January 15, 2015                             Decided March 19, 2015)

      William T. Morrison was on the brief for appellant.

      Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,
Suzanne Grealy Curt, David Misler, and Ann K. H. Simon, Assistant United States
Attorneys, were on the brief for appellee.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.

      FISHER, Associate Judge:      On November 22, 2013, appellant Robert

Washington was convicted of one count of unlawful possession of marijuana and

one count of unlawful possession of drug paraphernalia following a bench trial.

On appeal, he argues that the Marijuana Possession Decriminalization Amendment
                                         2


Act of 2014, D.C. Law 20-126 (effective July 17, 2014) (“Marijuana

Decriminalization Amendment”), should be retroactively applied to vacate his

convictions. Because the act does not expressly state or necessarily imply that its

provisions should be applied retroactively, we affirm.



                                I.     Background



                          A.     Appellant’s Convictions



      Appellant was charged by information on July 5, 2013, with one count of

unlawful possession of marijuana and one count of unlawful possession of drug

paraphernalia.1 On November 22, 2013, he was tried, convicted on both counts,

and sentenced to two concurrent terms of time served. He filed a notice of appeal

that same day.



      Evidence at trial showed that on July 4, 2013, officers of the Metropolitan

Police Department found two bags of a green weed-like substance, an empty pill




      1
          D.C. Code §§ 48-904.01 (d)(1), -1103 (a) (2012 Repl.).
                                         3


bottle, and 174 empty yellow and green baggies in appellant’s van. Later drug

analysis concluded that the green substance was 1.8 grams of marijuana.



             B.    The Marijuana Decriminalization Amendment



      The Marijuana Decriminalization Amendment was first introduced before

the Council of the District of Columbia on July 10, 2013, and was referred to the

Committee on the Judiciary and Public Safety. 60 D.C. Reg. 10612 (2013). After

a hearing, the committee recommended that the Council approve the bill.

D.C. Council, Report on Bill 20-409 (Jan. 15, 2014). The bill was amended eight

times before it was enacted by the Council and signed by the Mayor on March 31,

2014. 61 D.C. Reg. 3482 (2014).



      The act, in relevant part, amended existing criminal statutes to decriminalize

“the possession or transfer without remuneration of marijuana weighing one ounce

or less,” making it a civil violation. Marijuana Decriminalization Amendment

§ 101 (a), 61 D.C. Reg. 3482 (2014). An individual who commits that civil

violation can be fined $25. Id. §§ 103 (a), (b)(1), 61 D.C. Reg. 3482-83 (2014).

The act also decriminalized the possession of paraphernalia associated with such

possession. Id. §§ 101 (c), 409 (a), 61 D.C. Reg. 3482, 3487 (2014).
                                          4




      The effective-date provision of the legislation stated that “[t]his act shall

take effect following approval by the Mayor . . . , a 60-day period of Congressional

review as provided in section 602(c)(2) of the District of Columbia Home Rule

Act, . . . and publication in the District of Columbia Register.” Id. § 503, 61 D.C.

Reg. 3488 (2014). The act was published in the D.C. Register on April 4, 2014,

61 D.C. Reg. 3482 (2014), and transmitted to Congress four days later. It became

law when the sixty-day review period expired without Congressional action on

July 17, 2014. 61 D.C. Reg. 8250 (2014).



                                   II.   Analysis



      If the police had found appellant’s marijuana one year and thirteen days

later, he would have been subject to a $25 fine. See D.C. Code §§ 48-1201, -1203

(a) (effective July 17, 2014). He was instead convicted of two misdemeanors, and

he now contends that the Marijuana Decriminalization Amendment should apply

retroactively to vacate those convictions.2



      2
         The plain-error standard normally applies where, as here, a party has
raised an argument for the first time on appeal. Barnes v. District of Columbia,
102 A.3d 1152, 1153 (D.C. 2014). However, appellant could not have raised his
                                                                    (continued…)
                                          5




                        A.   The General Savings Statutes



      At common law, repeals of criminal statutes applied retroactively, “abating

every prosecution which had not yet resulted in final conviction (including appeal

to the highest reviewing court) . . . .” Holiday v. United States, 683 A.2d 61, 66

(D.C. 1996).     To prevent the automatic abatement of pending prosecutions,

legislatures enacted general savings statutes that “shifted the legislative

presumption from one of abatement unless otherwise specified to one of non-

abatement in the absence of contrary legislative direction.” Id. at 66-67 (internal

quotation marks omitted).



      In 1871 Congress enacted a general savings statute, which applies not only

to Congressional enactments but also to legislation passed by the Council. See id.

at 70. The statute 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

(…continued)
claim at trial because the Marijuana Decriminalization Amendment had not yet
been enacted.
                                          6


             so expressly provide, and such statute shall be treated as
             still remaining in force for the purpose of sustaining any
             proper action or prosecution for the enforcement of such
             penalty, forfeiture, or liability.



1 U.S.C. § 109 (2012). The Council also enacted a general savings statute in 1990.

Holiday, 683 A.2d at 75 (citing D.C. Code § 45-404 (a) (2012 Repl.) formerly

D.C. Code § 49-304 (a) (1996 Supp.)).3



      Preliminarily, it is clear (and appellant does not argue otherwise) that the

Marijuana Decriminalization Amendment qualifies as a “repeal,” within the

meaning of the savings statute, because it amends the provisions of existing

criminal law, see Holiday, 683 A.2d at 79 n.44 (savings statute applies to “every

statute that amends or repeals another statute imposing a penalty, forfeiture, or

liability”), and that appellant’s liability was “incurred” while the older statutes

were in effect, see id. at 72 (penalties are incurred “when the criminal act was

committed”). Appellant’s convictions are therefore preserved “unless either by

express declaration or necessary implication, arising from the terms of the law, as a

whole, it results that the legislative mind will be set at naught by giving effect to

      3
           We have previously assumed that there is no difference between the
District’s savings statute and the federal statute because their language is
“essentially the same.” Holiday, 683 A.2d at 75. Neither party contends that there
is a significant difference between the two statutes as applied to this case. See id.
                                          7


the provisions of” the general savings statutes. Id. at 79 n.44 (quoting Great N. Ry.

Co. v. United States, 208 U.S. 452, 465 (1908)) (internal emphasis omitted).



      The government urges us to affirm appellant’s convictions under the

reasoning of our decision in Holiday. Appellant, however, contends that Holiday

has been superseded by the Supreme Court’s decision in Dorsey v. United States,

132 S. Ct. 2321 (2012).



      In Holiday, we considered whether the repeal of certain mandatory-

minimum sentences applied to four defendants who had committed offenses before

the effective date of the act but were sentenced after that date. 683 A.2d at 74-75.

After a review of the statute and its legislative history, we concluded that there was

nothing “express” or “necessarily implied” that would preclude the general savings

statute from preserving the defendants’ mandatory-minimum sentences. Id. at 80.



      The Supreme Court in Dorsey considered whether the Fair Sentencing Act

of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (codified as amended in scattered

sections of 21 U.S.C.), which reduced the penalties for offenders convicted of

crack-cocaine offenses, applied to the sentences of individuals who committed

their offenses before but were sentenced after the effective date of the provision.
                                          8


132 S. Ct. at 2326. Relying on “[s]ix considerations, taken together,” id. at 2331,

Dorsey held that the “plain import” or “fair implication” of the FSA was that the

reduced penalties did apply to those offenders, id. at 2335.



      We do not see any material inconsistency in the approaches taken by

Holiday and Dorsey. Both decisions evaluated the intent of the legislature by

examining the language of the act in question and its legislative history. Compare

id. at 2332-35, with Holiday, 683 A.2d at 75-78. Both cases also used the same

standard in divining that legislative intent, one of express statement or necessary

implication. See Dorsey, 132 S. Ct. at 2332 (noting that “the Court has described

the necessary indicia of congressional intent by the terms ‘necessary implication,’

‘clear implication,’ and ‘fair implication,’ phrases it has used interchangeably”)

(emphasis added); Holiday, 683 A.2d at 80 (concluding that the act “adds nothing

‘express’ . . . or necessarily implied . . . that would preclude” application of the

general savings statutes) (emphasis added). Dorsey did not explicitly or implicitly

overrule our decision in Holiday.



      In holding that the FSA applied retroactively (not to abate any criminal

prosecutions, but to reduce certain penalties applicable to defendants who had not

yet been sentenced), the Dorsey court relied heavily on two factors not present in
                                         9


Holiday. First, it recognized that the FSA was passed against the background of

the Sentencing Reform Act of 1984, which requires a judge to look at sentencing

guidelines that are “in effect on the date the defendant is sentenced.” 18 U.S.C.

§ 3553 (a)(4)(A)(ii).   The Court concluded that the Sentencing Reform Act

established a “background sentencing principle” (supporting the application of new

sentencing laws to offenders who had not yet been sentenced) that was at odds

with the more general presumption against the retroactive application of criminal

repeals embodied in the federal general savings statute. Dorsey, 132 S. Ct. at

2332. Second, the Court held that the FSA showed Congress’s intent to follow the

Sentencing Reform Act’s principle instead of the presumption created by the

savings statute because the FSA required the United States Sentencing

Commission to promulgate, “as soon as practicable,” new guidelines that

conformed to the FSA. Dorsey, 132 S. Ct. at 2332 (internal quotation marks

omitted).



      We face a different situation in this case. The defendants in Dorsey were

asking for the application of a new sentencing statute that went into effect before

they were sentenced. Id. at 2329-30. Appellant asks for more—he requests that

his convictions be vacated and the prosecution abated based on a law that was not

in effect when he was convicted and sentenced.         The competing principles
                                          10


surrounding sentencing that were essential to the holding in Dorsey are not present

here.4



         In these circumstances, the general savings statutes establish the dominant

background principle of interpretation. We therefore look at the legislation itself

and its legislative history when determining if its retroactive application was

expressly dictated or necessarily implied by the Council. See Holiday, 683 A.2d

at 74.



         B.   Is the Marijuana Decriminalization Amendment Retroactive?



         We conclude that our reasoning in Holiday controls the outcome of this case.

We noted there that the Council did not expressly address whether the repeal of the

mandatory-minimum sentences applied to pending prosecutions. Id. at 76. The




         4
         Dorsey did recognize that “in federal sentencing [after passage of the
Sentencing Reform Act] the ordinary practice is to apply new penalties to
defendants not yet sentenced, while withholding that change from defendants
already sentenced.” 132 S. Ct. at 2335. Here, of course, appellant was sentenced
before the Marijuana Decriminalization Amendment became effective, so the
holding in Dorsey does not assist him.
                                          11


legislative history of the act was inconclusive, 5 and we concluded that “the

repealing legislation adds nothing ‘express’ (or necessarily implied) that would

preclude the general savings statutes from preserving the mandatory-minimum

sentences in these cases.” Id. at 80 (internal citation omitted).



      The language of the Marijuana Decriminalization Amendment, like that of

the act addressed in Holiday, does not expressly provide for retroactive application.

Neither does the legislative history explicitly mention pending prosecutions.

However, the government does point out that the Judiciary Committee considered

previous convictions for possession of marijuana when discussing “the sealing of

criminal records involving offenses that would no longer constitute crimes after

passage of” the act. Report on Bill 20-409 at 11. The committee recommended

that the issue be dealt with in a separate bill, which was later enacted by the

Council as the Record Sealing for Decriminalized and Legalized Offenses

Amendment Act of 2014, D.C. Law 20-0186, 61 D.C. Reg. 12108 (2014) (“Record




      5
         At one point, the bill had been amended and a committee report stated,
“Reducing mandatory-minimums for non-violent offenders charged after the
effective date of the act will also make more space available in the District’s
corrective facilities for violent offenders.” Holiday, 683 A.2d at 76 (internal
quotation marks omitted). The amendment was ultimately rejected, however, and
no other legislative history shed light on the issue. Id. at 76-78.
                                           12


Sealing Amendment”). See id.6 That act was designed to “address[] the collateral

consequences of marijuana possession arrests and convictions for individuals who

were arrested, charged, or convicted before July 17, 2014.” D.C. Council, Report

on Bill 20-467 at 3 (Sep. 17, 2014). It did so by providing that “[a] person arrested

for, charged with, or convicted of a criminal offense . . . that was decriminalized or

legalized after the date of the arrest, charge, or conviction may file a motion to seal

the record of the arrest, charge, conviction, and related Superior Court proceedings

at any time.” Record Sealing Amendment § 2 (b), 61 D.C. Reg. 12108. The

Council’s choice to give such relief to individuals who were arrested, charged, or

convicted before the Marijuana Decriminalization Amendment went into effect

supports the inference that it did not intend that act to apply retroactively.



      Appellant, relying on legislative history, contends that the clear purpose of

the act is to relieve consequences that marijuana arrests have caused for the

District’s residents and neighborhoods. For example, the committee report on the

bill states that individuals arrested for possessing marijuana could “be legally

discriminated against in employment, housing, and education” and often lost “their

right to food assistance and other forms of public support.” Report on Bill 20-409


      6
         The record-sealing bill was submitted to Congress for review on
January 26, 2015, and the period of Congressional review expired on March 10.
                                           13


at 5.      The committee stated that incarceration resulting from marijuana

prosecutions “risk[s] punishing [an offender’s] family and community, especially

when parents are taken away from their children,” and that “the District’s African-

American community has borne the brunt of these costs.” Id. In light of changing

attitudes about marijuana use, the Council no longer considered the offenses

serious enough to justify such consequences.         See id. at 6 (“This legislation

represents the realization that in the District of Columbia, . . . the decision to use

marijuana should not render someone a criminal for life.”).



        Appellant argues that it is fair to infer from these expressions of legislative

purpose that the act should be applied retroactively because doing so would better

fulfill its purpose. We do not doubt that applying the provisions of the Marijuana

Decriminalization Amendment retroactively would help some individuals avoid

negative consequences of their crimes. However, the general savings statutes set

forth “an important background principle of interpretation,” and we assume that

the Council “is well aware of the background principle when it enacts new criminal

statutes.” Dorsey, 132 S. Ct. at 2332. If it had intended for the act “to apply

retroactively[,] . . . express language to that effect could have been included.”

Holiday, 683 A.2d at 80.
                                         14


      There is no language in the Marijuana Decriminalization Amendment or its

legislative history that expressly states or necessarily implies that the statute

applies retroactively to prosecutions already commenced, much less to a case like

this one, where a conviction has already occurred. We therefore hold that the

general savings statutes preserve all prosecutions for possession of one ounce or

less of marijuana, and possession of related drug paraphernalia, when the offense

was committed before July 17, 2014.



                                  III.    Conclusion



      Appellant committed his offenses before the Marijuana Decriminalization

Amendment took effect. As explained above, the act does not abate prosecutions

based on conduct that occurred before its effective date. Appellant’s convictions

are therefore



                                                 Affirmed.
