Holder adopts 11th Circuit’s (lost and found) opinion on crack sentencings
12:36 pm, July 25th, 2011
In an interesting postscript to an 11th Circuit sentencing decision recently reported by the Daily Report, Attorney General Eric Holder has reversed course on a controversial issue at the heart of the case.
The Justice Department previously told its prosecutors they should take the position that revised mandatory minimums designed to narrow the disparity between crack sentences and those for powder cocaine did not apply to defendants who committed their crimes before the effective date of the new law—Aug. 3, 2010—even if they hadn’t yet been sentenced by that time. That’s exactly the stance South Florida federal prosecutors took in the case of Carmelina Veras Rojas, who pleaded guilty to crack possession and distribution charges and was scheduled to be sentenced on the very day the Fair Sentencing Act of 2010 was signed into law.
If the new law were to cover Rojas’ case, only a five-year mandatory minimum would apply. But the old law subjected Rojas to a 10-year mandatory minimum. After delaying Rojas’ sentencing to allow briefing on the issue, U.S. District Judge Adalberto Jordan concluded the new law didn’t apply and sentenced Rojas to 10 years in prison.
On June 24, the 11th Circuit panel of Judge Charles R. Wilson, Judge Beverly B. Martin and Senior Judge R. Lanier Anderson reversed that ruling, concluding that Congress meant for the new law to change sentencing practices immediately. The panel’s unsigned opinion soon disappeared from the court’s website for several days—prompting confusion and speculation in the blogosphere—only to reappear July 6 in a slightly revised version that noted a contrary decision by the 7th Circuit.
Without referencing the 11th Circuit decision specifically, Holder’s July 15 memorandum, addressed to all federal prosecutors, says conflicting court decisions led him to review the government’s position on the issue. He concluded that while the new mandatory minimum provisions do not apply to sentences already imposed prior to Aug. 3, 2010, the new rules do apply to sentences imposed on or after that date, regardless of when the crime took place:
I recognize that this change of position will cause some disruption and added burden as courts revisit some sentences imposed on or after August 3, 2010, and as prosecutors revise their practices to reflect this reading of the law. But I am confident that we can resolve those issues through your characteristic resourcefulness and dedication. Most importantly, as with all decisions we make as federal prosecutors, I am taking this position because I believe it is required by the law and our mandate to do justice in every case. The goal of the Fair Sentencing Act was to rectify a discredited policy. I believe that Congress intended that its policy of restoring fairness in cocaine sentencing be implemented immediately in sentencings that take place after the bill was signed into law. That is what I direct you to undertake today.
The Rojas case’s docket sheet at the 11th Circuit reflects an entry that the mandate that would send the case back to the district court previously was put on hold, which could signal that at least one member of the court wanted the full court to re-examine the issue. On Friday, Rojas’ lawyers at the office of the federal public defender in Miami filed a motion asking the 11th Circuit to expedite issuance of the mandate, attaching Holder’s memorandum and noting prosecutors had notified the defense that it would not be seeking further review of the panel’s ruling and did not oppose Rojas’ motion. The motion notes that prosecutors previously tried to file Holder’s memorandum as supplemental authority with the 11th Circuit, but the filing was returned to the government unfiled, with the explanation that a supplemental authority cannot be filed after the panel’s opinion is entered unless it is filed in support of a petition for re-hearing.
Hat tip to Ohio State law professor Douglas Berman for posting a copy of the Holder memo on his always-helpful Sentencing Law and Policy blog, where posters have been debating whether Holder’s change of position really means the end of the issue on the national scene.