     10-285-cr
     United States of America v. Joshua Acoff



 1                                              UNITED STATES COURT OF APPEALS
 2                                                    FOR THE SECOND CIRCUIT
 3
 4
 5                                                      August Term, 2010
 6
 7                           (Submitted on: January 31, 2011   Decided: February 10, 2011)
 8                                            (Amended: February 11, 2011)
 9
10                                                     Docket No. 10-285-cr
11
12
13                                                  UNITED STATES OF AMERICA,
14
15                                                                                       Appellant,
16
17                                                           — v.—
18
19                                                        JOSHUA ACOFF,
20
21                                                                                        Appellee.
22
23
24
25             B e f o r e:
26
27                          CALABRESI, and LYNCH, Circuit Judges, MURTHA, District Judge.*
28
29                                                     __________________
30
31             Appellee Joshua Acoff pled guilty in the United States District Court for the

32   District of Connecticut (Peter C. Dorsey, J.) to possessing five or more grams of cocaine

33   base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court


               *
                   The Honorable J. Garvan Murtha of the United States District Court for the
     District of Vermont, sitting by designation.
 1   accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to

 2   Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the

 3   indictment and admitted to by Acoff. The government appealed. We find that the district

 4   court acted unlawfully in sentencing Acoff to a term of imprisonment below the

 5   mandatory minimum. Accordingly, we vacate the judgment of the district court and

 6   remand the case so that Acoff can be resentenced in a manner consistent with the

 7   statutory mandate.

 8                 VACATED and REMANDED.

 9                 Judge Calabresi concurs in a separate opinion.

10                 Judge Lynch concurs in a separate opinion.

11
12
13                        Brian P. Leaming, Assistant United States Attorney, and Sandra S.
14                        Glover, Assistant United States Attorney (of counsel), for David B.
15                        Fein, United States Attorney for the District of Connecticut, for
16                        Appellant.
17
18                        Thomas G. Dennis, Federal Defender, Sarah A.L. Merriam, Assistant
19                        Federal Defender, Hartford, Connecticut, for Appellee.
20
21

22   PER CURIAM:

23          Appellee Joshua Acoff pled guilty in the United States District Court for the

24   District of Connecticut (Peter C. Dorsey, J.) to possessing five or more grams of cocaine

25   base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court

                                                   2
 1   accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to

 2   Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the

 3   indictment and admitted to by Acoff. In lieu of the sixty-month sentence mandated by the

 4   statute, the district court sentenced Acoff to fifteen months in prison, over the

 5   government’s objection. The district court justified its decision by observing that the

 6   100-to-1 ratio between crack and powder cocaine sentences established by the statute then

 7   in force “does not make sense at all.” The government appealed.

 8          The district court manifestly erred in sentencing Acoff to a term below the

 9   statutory minimum. As the Supreme Court has explained, “the scope of judicial

10   discretion with respect to a sentence is subject to congressional control.” Mistretta v.

11   United States, 488 U.S. 361, 364 (1989). Accordingly, except in circumstances not

12   applicable here,1 district courts lack the authority to impose a sentence below the statutory

13   minimum. See Kimbrough v. United States, 552 U.S. 85, 108 (2007).

14          Acoff contends that the mandatory minimum sentence no longer applies to him in

15   light of intervening congressional legislation that reduced sentences for certain crack

16   cocaine offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat.


            1
             A district court may sentence a defendant below the statutory minimum (1) where the
     defendant provided substantial assistance and the government moves to release the defendant
     from the statutory minimum under 18 U.S.C. § 3553(e), and (2) where the “safety-valve”
     exception (18 U.S.C. § 3553(f)) applies. In the present case, the government did not move
     pursuant to Section 3553(e), and Acoff did not qualify for safety valve consideration pursuant to
     Section 3553(f).


                                                     3
 1   2372 (amending 21 U.S.C. § 841) (“FSA”). This argument is unavailing. Under the

 2   general savings statute, 1 U.S.C. § 109, “[t]he repeal of any statute shall not have the

 3   effect to release or extinguish any penalty . . . incurred under such statute, unless the

 4   repealing Act shall so expressly provide, and such statute shall be treated as still

 5   remaining in force for the purpose of sustaining any proper action or prosecution for the

 6   enforcement of such penalty.” Although Acoff argues that the savings statute does not

 7   foreclose retroactive application of the FSA, we have recently held otherwise. See United

 8   States v. Diaz, 627 F.3d 930 (2d Cir. 2010).

 9          The fact that Acoff, unlike the defendant in Diaz, had not yet exhausted his appeals

10   when the FSA came into force does not change our analysis. Relying on Griffith v.

11   Kentucky, 479 U.S. 314 (1987), Acoff argues that principles of equal protection require

12   us to read the FSA as applying not only to future offenders, but also to those who violated

13   the statute before it was amended but whose sentences were not yet final when the FSA

14   was enacted. That is not correct. The constitutional concern that occupied the court in

15   Griffith was “the actual inequity that results when the Court chooses which of many

16   similarly situated defendants should be the chance beneficiary of a new rule.” Id. at 323

17   (internal quotation marks omitted, emphasis in the original). The Court’s holding, which

18   required lower courts to apply new constitutional rules of criminal procedure to all cases

19   not yet final, was intended to account for the injustice that would result if the Court were

20   to grant certiorari and reverse one defendant’s conviction, while otherwise applying the

                                                    4
 1   new rule only prospectively. There is no suggestion in Griffith that similar constitutional

 2   concerns would apply to a new rule announced by Congress. To the contrary, the Court

 3   found it necessary to adopt the rule that it did precisely because “[u]nlike a legislature, we

 4   do not promulgate new rules of constitutional criminal procedure on a broad basis.” Id. at

 5   322. It is not irrational for Congress to impose a penalty on those who committed their

 6   offenses at a time when they knew or should have known the severity of the applicable

 7   penalty, even while reducing the penalty as to future offenders. Accordingly, “because

 8   the FSA took effect . . . after [the defendant] committed his crimes 1 U.S.C. § 109 bars

 9   the Act from affecting his punishment.” Diaz, 627 F.3d at 931, quoting United States v.

10   Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (omission in the original).

11          Acoff next contends that the mandatory sentencing scheme in former 21 U.S.C.

12   § 841(b) violates the equal protection component of the Fifth Amendment, because there

13   is no rational basis for the disparity between sentences for crack and powder cocaine. We

14   have repeatedly rejected this argument. See United States v. Regalado, 518 F.3d 143, 149

15   n.3 (2d Cir. 2008); United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995); United States

16   v. Stevens, 19 F.3d 93, 96-97 (2d Cir. 1994). Nothing in the text or legislative history of

17   the Fair Sentencing Act undermines the validity of these prior decisions. As we have

18   noted in another context, “[a] congressional decision that a statute is unfair, outdated, and

19   in need of improvement does not mean that the statute when enacted was wholly

20   irrational or, for purposes of rational basis review, unconstitutional.” Smart v. Ashcroft,

                                                   5
1   401 F.3d 119, 123 (2d Cir. 2005).

2         We have considered Acoff's remaining arguments and find them to be without

3   merit. Because we reject Acoff’s arguments on the merits, we need not address the

4   government’s argument that Acoff waived his right to defend the sentence on appeal in

5   his plea agreement.

6                                       CONCLUSION

7         For the foregoing reasons, the judgment of the district court is VACATED and the

8   case is REMANDED for resentencing consistent with this decision.




                                               6
 1   GUIDO CALABRESI, Circuit Judge, concurring:

 2          I believe the per curiam opinion accurately describes U.S. law and that of our

 3   circuit, so I join it fully. That is, its treatment of the effect of a change in law on

 4   previously imposed sentences in the absence of a clear statement of retroactivity is the

 5   normal—and normally appropriate—procedure and leads to the result in this case. And,

 6   yet, there is something troubling about this result with regard to a statute whose grossly

 7   different treatment of chemically identical drugs—the rock and powder forms of

 8   cocaine—has been criticized and questioned, particularly on grounds of racial injustice.

 9   E.g., U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and Federal

10   Sentencing Policy 192 (1995) (concluding that “the vast majority of those persons most

11   affected by such an exaggerated ratio are racial minorities,” which creates a

12   perception—if not a reality—of injustice). As we have learned more about the drugs’

13   similarities in terms of effect and addictiveness and about the racially disparate impact the

14   statute’s mandatory minimum provisions have had, these criticisms have intensified. See,

15   e.g., ACLU, With the Stroke of a Pen, a Fairer Criminal Justice System, Aug. 3, 2010

16   (calling the crack-powder disparity “one of the most dysfunctional and needlessly cruel

17   aspects of the federal criminal justice system”).

18          European courts have developed a way of dealing with statutes that though valid

19   when enacted, come, over time, to raise significant constitutional questions. These courts

20   have engaged in a dialogue with their legislatures, explaining that though the courts were

                                                     1
 1   not prepared—or possibly even able—to say that the statute was unconstitutional,

 2   nevertheless, it was the court’s role to inform the legislature that the statute was “heading

 3   towards unconstitutionality.” Not surprisingly, in such situations, it sometimes happens

 4   that the legislature responds to cure the rising defects in the statute. See United States v.

 5   Then, 56 F.3d 464, 468–69 (2d Cir. 1995) (Calabresi, J., concurring) (explaining this

 6   process).

 7          One could describe the crack-powder disparity in the same way. The dialogue

 8   here has involved not just courts but the Sentencing Commission, the academy, and the

 9   press. See, e.g., U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and

10   Federal Sentencing Policy (1995, 1997, 2007) (recommending reducing or eliminating the

11   crack-powder disparity); Steven L. Chanenson, Booker on Crack: Sentencing’s Latest

12   Gordian Knot, 15 Cornell J. L. & Pub. Pol'y 551, 583-86 (2006) (describing the

13   difficulties and disparities in the crack sentencing Guidelines and urging Congress to act);

14   Editorial, Bad Science and Bad Policy, N.Y. Times, at A30 (Mar. 2, 2010).

15          To the extent that one could have viewed what occurred in Congress as a response

16   to a suggestion by courts that the sentencing statutes were heading towards

17   unconstitutionality, one might question whether the traditional presumption against

18   retroactivity should apply. In circumstances where the legislature has responded to a

19   judicial suggestion of unconstitutionality, the appropriate starting point might well be the

20   opposite: to assume that the change reaches back—at the very least to cover cases

                                                   2
 1   pending on appeal at the time of enactment (and perhaps further)—in the absence of a

 2   specific statement that some other metric should be used. The import of this shift in

 3   presumption would be to force Congress to focus specifically on the impact of a

 4   legislative change resolving a potential constitutional problem, a focus that is not

 5   necessary in the run-of-the-mill situation where no countervailing constitutional-level

 6   values suggest that a statute’s official “effective date” and its practical application date

 7   should be different. If the statute’s validity was becoming dubious, why should we

 8   assume that the legislature wished the statute’s constitutional dubiousness to apply in any

 9   case?

10           Nonetheless, U.S. courts have failed to adopt this European dialogic approach.

11   Indeed, with regard to the very question of the crack-powder disparity, it has been

12   rejected by our circuit. Then, 56 F.3d at 466 (majority opinion). In Then, the majority

13   expressly declined to adopt this technique.1 I believe they were wrong then and that

     1
       An ongoing debate exists on the propriety and desirability of U.S. courts learning from what
     foreign courts are doing in general and especially in constitutional matters. See generally David
     J. Seipp, Our Law, Their Law, History, and the Citation of Foreign Law, 86 B.U. L. Rev. 1417
     (2006) (describing this debate); see also Justices Antonin Scalia & Stephen Breyer, Discussion
     at the American University Washington College of Law: Constitutional Relevance of Foreign
     Court Decisions (Jan. 13, 2005) (engaging in this debate). Whatever one’s views are on this
     issue when it deals with reliance on foreign courts with regard to the import of substantive
     values, see, e.g., Roper v. Simmons, 543 U.S. 551, 624–28 (2005) (Scalia, J., dissenting)
     (admonishing the Court for looking to foreign nations’ application of the juvenile death penalty),
     that is very different from what is involved in this case—whether doctrinal approaches,
     interpretative methods, and judging techniques for considering constitutional questions that have
     been developed abroad might be of use to us here. And it is important to realize that one could
     decline to consider the former but nonetheless adopt the latter as insightful or useful. See, e.g.,
     Steven G. Calabresi, Importing Constitutional Norms from a “Wider Civilization”: Lawrence

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1   following this approach would be desirable now. But, I am bound by that decision and

2   cannot argue that this case should be treated differently from the standard presumption.




    and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional
    Interpretation, 65 Ohio St. L.J. 1283, 1288–97 (2004) (comparing expository, empirical, and
    substantive uses of foreign law and approving of the first two while disapproving of the third).

                                                    4
 1   GERARD E. LYNCH, Circuit Judge, concurring:

 2          As our per curiam opinion demonstrates, through the combination of the savings

 3   statute, 1 U.S.C. § 109, and the provisions of the Fair Sentencing Act of 2010, Pub. L.

 4   No. 111-220, § 2, 124 Stat. 2372 (amending 21 U.S.C. § 841) (“FSA”), which fails to

 5   provide for any retroactive application of its reform of the sentences for crack cocaine

 6   offenses, Congress has commanded that offenders who committed such offenses before

 7   the effective date of the FSA but are to be sentenced after that date must be sentenced

 8   under the harsh terms of the prior law, now recognized by virtually everyone, including

 9   Congress, to have imposed unnecessarily and unfairly severe mandatory sentences. As

10   Judge Calabresi acknowledges, this result is consistent with the Constitution, and – short

11   of adopting a novel theory of constitutional adjudication – courts have no power to alter

12   it.

13          There is a reasonable argument that Congress’s recognition that the prior law was

14   unfair should have led to complete retroactivity, that is, to revisiting the sentences of the

15   thousands of prisoners serving long terms of imprisonment pursuant to the now-

16   abandoned policy. At the same time, it is understandable why Congress would have been

17   reluctant to make its salutary reform fully retroactive. Doing so would not only have

18   imposed a huge burden on the criminal justice system; prosecutorial and judicial

19   decisions in many of those cases – including decisions to drop other, valid charges in

20   return for a plea to a crack offense in the belief that the severe narcotics sentences would

                                                   1
 1   adequately protect society – may have been made in reliance on the existence of the prior

 2   law. Congress may well have decided that it is simply too difficult to rewind these cases

 3   to the beginning, unscramble all of the decisions that had been made, and reprosecute the

 4   cases as they might have played out had the provisions of the FSA been in effect all

 5   along.

 6            It is more difficult, however, to understand why Congress would want to continue

 7   to require that courts impose unfair and unreasonable sentences on those offenders whose

 8   cases are still pending. Such defendants still need to be sentenced, and there are few

 9   persuasive reasons why they should be sentenced pursuant to an unjust law when

10   Congress has already replaced it with a more just one. It seems likely that simple

11   congressional inattention produced this result: understandably focused on the much larger

12   question of full retroactivity, when Congress decided against making the provisions of the

13   FSA fully retroactive, it may simply have overlooked the distinguishable, and much

14   smaller, category of past offenders who are still being sentenced for pre-FSA crimes.

15            This is simply a transitional problem. The class of affected past offenders who are

16   still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1

17   ratio is presumably small. But it is no comfort to those, like the defendant in this case,

18   who are sentenced unduly harshly under a now-discredited and repealed law, to know that

19   a relatively small number of offenders share their predicament.

20            It may now be too late for Congress to affect many of these cases. The number of

                                                   2
1   pre-FSA crack offenders whose sentences are not yet final shrinks with every day that

2   Congress fails to act. But at least some such offenders will remain in the system for years

3   to come. With the enactment of the FSA, Congress has finally remedied a glaring

4   injustice in our narcotics laws. Perhaps some day it will revisit the fates of all those who

5   are serving excessive sentences under those now-repealed laws. But even if the

6   arguments against full retroactivity continue to prevail, Congress would do well to

7   quickly and seriously consider whether it has inadvertently required courts to continue an

8   unjust practice in a small but significant number of on-going cases.




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