                                                                             [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14662         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 6, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 1:10-cr-20236-AJ-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                                versus

CARMELINA VERA ROJAS,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.
                                      ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (July 6, 2011)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         We sua sponte modify our previous opinion in this appeal to reflect recent

developments in the law of the First and Seventh Circuits. See United States v.
Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341,

2011 WL 2120163 (1st Cir. May 31, 2011).

      The issue in this appeal is whether the Fair Sentencing Act of 2010

(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who

committed crack cocaine offenses before August 3, 2010, the date of its

enactment, but who are sentenced thereafter. We conclude that it does.

      In May 2010, Carmelina Vera Rojas pleaded guilty to one count of

conspiring to possess with the intent to distribute 50 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of

distributing 5 grams or more of cocaine base, in violation of § 841(a)(1). Her

sentencing was scheduled for August 3, 2010, which as it so happened, was the

date on which President Obama signed the FSA into law. The district court

granted the parties a continuance to determine whether Vera Rojas should be

sentenced under the FSA. After considering the parties’ arguments, the district

court concluded that the FSA should not apply to Vera Rojas’s offenses; in

September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

      On appeal, Vera Rojas argues that the district court erred in refusing to

apply the FSA to her sentence. Because she had not yet been sentenced when the

FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s

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provision raising the quantity of crack cocaine required to trigger a ten-year

mandatory minimum sentence. Further, Vera Rojas contends that the FSA falls

within recognized exceptions to the general savings statute, 1 U.S.C. § 109.

Relying in large part on the general savings statute, the government contends that

Congress’s omission of an express retroactivity provision requires that the FSA be

applied only to criminal conduct occurring after its August 3, 2010, enactment.

      We conclude that the FSA applies to defendants like Vera Rojas who had

not yet been sentenced by the date of the FSA’s enactment. The interest in

honoring clear Congressional intent, as well as principles of fairness, uniformity,

and administrability, necessitate our conclusion. Accordingly, we reverse and

remand to the district court for re-sentencing.

                                   DISCUSSION

      We review de novo the legal question of whether the FSA applies to

defendants who had not been sentenced by the date of the FSA’s enactment. See

United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997).

      1.     The Fair Sentencing Act of 2010

      The preamble to the FSA describes it as “[a]n Act To [sic] restore fairness to

Federal cocaine sentencing.” The FSA sought to reduce the disparity between

federal criminal penalties for crack cocaine and powder cocaine offenses by

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lowering the gram-penalty ratio from 100:1 to 18:1. United States v. Douglas, 746

F. Supp. 2d 220, 222, 224 (D. Me. 2010), aff’d, 2011 WL 2120163 (1st Cir. May

31, 2011). To this end, the FSA amended the Controlled Substances Act and

Controlled Substances Import and Export Act by raising the drug quantities

required to trigger mandatory minimum sentences. See United States v. Bell, 624

F.3d 803, 814 (7th Cir. 2010). Further, the FSA provided the Sentencing

Commission with the emergency authority to promulgate all necessary

amendments to the Sentencing Guidelines within 90 days of the FSA’s August 3,

2010, enactment. FSA § 8, Pub. L. No. 111-220. Specifically, the Sentencing

Commission was charged with “mak[ing] such conforming amendments to the

Federal sentencing guidelines as the Commission determines necessary to achieve

consistency with other guideline provisions and applicable law.” Id. The

consequent amendments to the Sentencing Guidelines became effective no later

than November 1, 2010.

      Under the FSA, a ten-year mandatory minimum applies to first-time

trafficking offenses involving 280 grams or more of crack cocaine, while a five-

year mandatory minimum applies to first-time trafficking offenses involving 28

grams or more of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii).

Thus, the FSA amended the Anti-Drug Act of 1986 to lower the mandatory

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minimum sentence for first-time trafficking offenses involving between 50 and

280 grams of crack cocaine from ten years to five years. Compare

§ 841(b)(1)(A)(iii) (2006), with § 841(b)(1)(A)(iii) (2010). The FSA is silent as to

whether it applies to all criminal sentencings taking place after its enactment or,

conversely, to only criminal conduct occurring after its enactment.

      The district court sentenced Vera Rojas in September 2010 for conspiring

with intent to distribute 71.8 grams of crack cocaine, among other offenses. If the

court had sentenced Vera Rojas under the FSA, her offenses would have been

insufficient to trigger the ten-year mandatory minimum sentencing provision. For

the following reasons, we conclude that Vera Rojas’s sentence is subject to the

FSA’s five-year mandatory minimum provision.

      2.     Case Law

      Vera Rojas argues that this Court’s statement in United States v. Gomes,

621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam)—“because the FSA took effect

in August 2010, after appellant committed his crimes, [the general savings statute]

bars the Act from affecting his punishment”—was merely dicta and is not

controlling precedent. We need not consider this argument because, in any event,

Gomes does not apply here. The record reveals that Gomes was indicted in July

2009 and sentenced in March 2010—nearly five months before the FSA was

                                          5
signed into law. The issue before the Court therefore was whether the FSA

applied retroactively to lighten the defendant’s existing sentence.

      This appeal presents a different issue. Vera Rojas’s circumstances require

that we determine whether the FSA applies to a defendant who had not been

sentenced when the law was enacted. The government cites published opinions

from the Sixth, Seventh, Eighth, and Tenth Circuits, ostensibly in support of its

proposition that “[e]very circuit court to have addressed the issue has concluded

that the FSA may not be applied retroactively.” Like Gomes, each of those cases

involved a defendant who had been charged, convicted, and sentenced before the

effective date of the FSA; those defendants were arguing for the first time on

appeal that the FSA should apply retroactively to a previously imposed sentence.

See United States v. Carradine, 621 F.3d 575, 577–78, 580 (6th Cir. 2010)

(defendant indicted in July 2005 and sentenced in January 2008); Bell, 624 F.3d at

814 (Seventh Circuit stating that “[i]f Bell were sentenced today under the FSA,

his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the

mandatory minimum sentencing provisions”); United States v. Brewer, 624 F.3d

900, 909 n.7 (8th Cir. 2010) (stating that the defendant first submitted a letter

requesting re-sentencing under the FSA on August 27, 2010, where the record

indicates that defendant was originally sentenced in November 2009); United

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States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010) (“[The FSA] is not,

however, retroactive and thus does not apply to this case. It does, on the other

hand, relegate this case to a relatively short shelf-life, inasmuch as defendants

being sentenced henceforth will be sentenced under a different applicable ratio.”

(emphasis added)). But see United States v. Fisher, 635 F.3d 336, 340 (7th Cir.

2011) (holding that the relevant date for the FSA “is the date of the underlying

criminal conduct, not the date of sentencing,” but stating, “[w]e have sympathy for

the two defendants here, who lost on a temporal roll of the cosmic dice and were

sentenced under a structure which has now been recognized as unfair”).

      We do not disagree with our sister circuits in one major sense—absent

further legislative action directing otherwise, the general savings statute prevents a

defendant who was sentenced prior to the enactment of the FSA from benefitting

from retroactive application. Further, we share in the well-reasoned view of the

First Circuit that Congress intended for the FSA to apply immediately. See

Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress

strongly desired to put 18:1 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 18:1 mandatory minimums.”).

      3.     The Savings Clause of 1 U.S.C. § 109

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       The government argues that Congress did not intend for the FSA to apply to

defendants like Vera Rojas, as a contrary conclusion would render the general

savings statute, 1 U.S.C. § 109, a nullity. Vera Rojas, on the other hand, contends

that § 109 does not apply to the FSA, because sentencing some defendants under

the old statute would frustrate the clearly evinced goals of Congress.1

       The relevant clause of the general savings statute provides:

       The repeal of any statute shall not have the effect to release or
       extinguish any penalty . . . 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 sustaining any
       proper action or prosecution for the enforcement of such penalty . . . .

§ 109. Stated another way, if § 109 applies to the FSA, the FSA cannot “release or

extinguish” the penalty Vera Rojas would have received under the old version of

21 U.S.C. § 841(b)(1)(B)(iii). For the reasons explained below, we conclude that

§ 109 does not “save” the older mandatory minimum sentence for a defendant who

had not been sentenced by the date the FSA was enacted.

       Over a hundred years ago, the Supreme Court explained that the general

savings statute “cannot justify a disregard of the will of Congress as manifested,

       1
         Citing United States v. Kolter, 849 F.2d 541, 544 (11th Cir. 1988), Vera Rojas also
argues that “the FSA did not release or extinguish the penalty for crack cocaine,” but that it
merely “redefined the classes of persons to whom the minimum mandatories apply to remedy the
defects in the 1986 law.” The Seventh Circuit recently rejected the same argument. See Bell,
624 F.3d at 814–15. However, we need not consider it here because we resolve Vera Rojas’s
appeal on other grounds.

                                              8
either expressly or by necessary implication, in a subsequent enactment.” Great

N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908); see also Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 659 n.10 (1974) (“[O]nly if [the

repealing statute] can be said by fair implication or expressly to conflict with

§ 109 would there be reason to hold that [the repealing statute] superseded

§ 109.”). Indeed, the Supreme Court has “made clear” that a savings provision

“cannot nullify the unambiguous import of a subsequent statute. . . . A subsequent

Congress . . . may exempt itself from [express-provision] requirements by ‘fair

implication.’” Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J.,

concurring). Where Congress’s intent for a new statute to supersede a prior one is

clear, it is not required to use “magical” words to do so. Id. at 145 (majority

opinion).

      The government cites Marrero for the proposition that § 109 bars the

application of the FSA to Vera Rojas’s case. There, the Supreme Court applied

§ 109 to reject the claim that a new statute loosening parole eligibility should be

applied to those who committed their crimes before the new statute’s enactment.

417 U.S. at 659–64. But Marrero is not on-point: the repealing statute in that case

had its own savings clause that specifically sought to preserve the harsher penalty

for prosecutions initiated before its effective date. Id. at 656 n.4.

                                           9
      Unlike the statute at issue in Marrero, the FSA is silent as to whether the

harsher mandatory minimums should be preserved for defendants whose cases

were pending on the date of its enactment. However, the necessary and fair

implication of the FSA is that Congress intended the Act to apply to all

sentencings going forward, because a contrary conclusion would be logically

inconsistent and would achieve absurd results: The Sentencing Reform Act of

1984 expressly states that the governing Sentencing Guidelines are those in effect

on the day a defendant is sentenced. 18 U.S.C. § 3553(a)(4)(A)(ii). But under the

government’s rationale, courts could sentence Vera Rojas and other defendants in

her position under the old, higher mandatory minimums until August 3, 2015,

when the five-year general statute of limitations would run. Congress could not

have intended this result. By granting the Sentencing Commission the emergency

authority to amend the Sentencing Guidelines by November 1, 2010, Congress

necessarily indicated its intent for the FSA to apply immediately. To ask district

courts to consider the date the offense was committed to determine the statutory

minimum, but the date of sentencing to determine the guidelines range, would lead

to an incongruous result that is inconsistent with Congressional intent. See United

States v. Rutherford, 442 U.S. 544, 552 (1979) (explaining that when interpreting

statutes, exceptions may be implied “where essential to prevent ‘absurd results’ or

                                         10
consequences obviously at variance with the policy of the enactment as a whole”).

What is more, such an interpretation of the FSA would run afoul of the policies

motivating its enactment and render ineffectual Congress’s express directive to the

Sentencing Commission. See FSA, Preamble & § 8, Pub. L. No. 111-220 (stating

that “the United States Sentencing Commission shall . . . make such conforming

amendments to the Federal sentencing guidelines as the Commission determines

necessary to achieve consistency with . . . applicable law” (emphasis added)).

      Moreover, with respect to § 109, we have stated in a somewhat similar

context that “[t]he general rule is that a new statute should apply to cases pending

on the date of its enactment unless manifest injustice would result or there is a

statutory directive or legislative history to the contrary.” United States v. Kolter,

849 F.2d 541, 543 (11th Cir. 1988) (citing, among other cases, Bradley v. Sch. Bd.

of Richmond, 416 U.S. 696 (1974)). Congress stated that it passed the FSA to

“restore fairness to Federal cocaine sentencing.” Preamble, FSA, Pub. L. No. 111-

220. As one district court aptly stated in an opinion thoroughly discussing this

issue, “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?” Douglas, 746 F. Supp. 2d at 229.




                                          11
      The necessary inference is that the will of Congress was for the FSA to halt

unfair sentencing practices immediately. See Great N. Ry. Co., 208 U.S. at 465.

We therefore hold that the general savings statute cannot bar application of the

FSA to sentencings conducted after its August 3, 2010, enactment. Accordingly,

we remand Vera Rojas’s case to the district court for re-sentencing consistent with

this opinion.

      REVERSED AND REMANDED.




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