In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1558, 11-1559, 11-1586 & 11-1758

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

CHRISTOPHER HOLCOMB, et al.,

Defendants-Appellees.

 

Appeals from the United States District Court

for the Central District of Illinois.

Nos. 3:10-cr-30058-RM-BGC et al.—Richard Mills, Judge.

DECIDED AUGUST 24, 2011

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM,

KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and

HAMILTON, Circuit Judges.

A member of this court called for a vote on the question whether these four appeals should be heard en banc

on the court’s own initiative. A majority of the active

judges did not vote in favor of rehearing en banc, and

the proposal therefore fails. Petitions for rehearing or

rehearing en banc will not be accepted; this decision is

the court’s final judgment. Three members of the court

have written opinions explaining their votes.
2 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

EASTERBROOK, Chief Judge, with whom FLAUM, KANNE,

SYKES, and TINDER, Circuit Judges, join. These four

appeals were filed by the United States with the Solicitor

General’s authorization. Eight days after the United

States prevailed, the prosecutor filed a document

styled “Notice of Changed Position” announcing that

the Attorney General disagrees with this court (and

apparently with the Solicitor General too). The “Notice

of Changed Position” does not ask us to do anything

in particular, but some members of the court believe that

we should grant rehearing en banc and overrule United

States v. Fisher, 635 F.3d 336 (7th Cir. 2011), which led our

panel to decide these four appeals in the prosecutor’s

favor. I am content to leave Fisher undisturbed.

The Attorney General’s “Memorandum for all Federal

Prosecutors”, dated July 15, 2011, directs United States

Attorneys to argue that the Fair Sentencing Act of 2010,

Pub. L. 111-220, 124 Stat. 2372 (2010), applies to all

criminal prosecutions in which sentence was imposed

on or after August 3, 2010, the day the President signed

the bill. The Memorandum also directs United States

Attorneys to argue that the 2010 Act does not apply to

cases in which sentence was pronounced on August 2,

2010, or earlier, even if they were pending in the district

court or appeal on August 3. In other words, the Attorney

General has concluded that the 2010 Act is partially

retroactive.

As far as I am aware, the Supreme Court has never

held any change in a criminal penalty to be partially

retroactive. The choice always has been binary: retroac-
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 3

tive or prospective. And what makes application “retroactive” is a change in the legal consequences of activity

that predates the new law’s enactment. See generally

Landgraf v. USI Film Products, 511 U.S. 244 (1994), which

discusses what it means for application of a new statute

to be retroactive, and the two exceptions to the presumption against retroactivity: new procedural rules and

new jurisdictional requirements. The 2010 Act does not

affect judicial procedure; it changes the penalty for criminal conduct. And it does not affect jurisdiction.

The common law distinguished increases in criminal

punishments from reductions or repeals. Any law that

repealed a criminal statute or reduced the defendant’s

punishment was fully retroactive, while in light of the

Constitution’s Ex Post Facto Clause a law creating a

crime or increasing criminal punishment could apply

only to conduct that occurred after the law changed. But

in 1871 Congress enacted the General Saving Statute,

now codified as 1 U.S.C. §109, which makes all changes

prospective unless the new statute provides otherwise.

Warden v. Marrero, 417 U.S. 653, 659–61 (1974), discusses

this history. Section 109 provides:

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 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.
4 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

United States v. Goncalves, 642 F.3d 245 (1st Cir. 2011); United

^

States v. Acoff, 634 F.3d 200 (2d Cir. 2011); United States v. Reevey,

631 F.3d 110 (3d Cir. 2010); United States v. Rhodes, 2011 U.S.

App. LEXIS 10238 (4th Cir. May 20, 2011) (one of at least five

opinions in that circuit, all non-precedential); United States v.

Doggins, 633 F.3d 379 (5th Cir. 2011); United States v. Carradine,

621 F.3d 575 (6th Cir. 2010); United States v. Brewer, 624 F.3d

900 (8th Cir. 2010); United States v. Baptist, 2011 U.S. App. LEXIS

11056 (9th Cir. June 2, 2011); United States v. Lewis, 625 F.3d

1224 (10th Cir. 2010); United States v. Gomes, 621 F.3d 1343

(11th Cir. 2010). The D.C. Circuit has yet to address this subject.

Defendants argued that §109 is irrelevant to the 2010 Act,

because it reduces rather than “repeals” the penalties

for crack cocaine. They also contended that a criminal

does not “incur” a punishment until sentenced. Every

circuit has concluded, to the contrary, that a law reducing

criminal punishment is a repeal of the old statute and

the enactment of a new one for the purpose of §109, and

that a punishment is incurred when the crime is committed. Marrero supports both of these conclusions.

Our precedent is United States v. Bell, 624 F.3d 803, 814–15

(7th Cir. 2010), which holds that §109 makes the 2010

Act prospective, because it lacks an express declaration

of retroactivity. A footnote collects other circuits’ equivalent decisions.^

Bell and the other circuits rejected arguments for retroactivity made by defendants whose appeals were

pending on August 3, 2010. That’s why courts could

decide the question so quickly. A second wave of defendants, those sentenced on or after August 3, 2010, asked

for partial retroactivity. Our circuit was the first to con-
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 5

sider that possibility. The panel in Fisher rejected the

argument that the date of sentencing matters. If the

2010 Act is retroactive, then it applies to all pending

cases no matter how far they have got in the judicial

system; if it is not retroactive, then it applies only to

crimes committed on or after August 3, 2010. Nothing

depends on the sentencing date, which reflects how long

it took to catch a criminal, and the state of the district

judge’s calendar, rather than principles of deterrence

or desert. Section 109 says that the former law “shall be

treated as still remaining in force” for pre-amendment

conduct. If the old law is “treated as still remaining in

force”, the new law can’t be applied to persons newly

sentenced for pre-amendment crimes; §109 forecloses

partial retroactivity.

United States v. Douglas, 644 F.3d 39 (1st Cir. 2011),

reached a contrary conclusion, apparently unaware that

it was creating a conflict with Fisher, which had been

issued 20 days earlier. Douglas held that the new minimum and maximum sentences take effect for defendants sentenced on and after November 1, 2010. (I’ll

come back to the source of that date.) United States v.

Rojas, 2011 U.S. App. LEXIS 13677 (11th Cir. July 6, 2011),

then misread Douglas as holding that the new rules

take effect with sentencing on and after August 3, 2010,

and applied that transition date. (Rojas was sentenced

on August 3 and would not have been eligible for a

lower sentence under Douglas.) On July 7 our panel in

Holcomb remanded four cases with instructions to

apply Bell and Fisher. And on July 15 the Attorney

General issued his memorandum agreeing with Rojas.

That led to the United States Attorney’s “Notice of
6 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

Changed Position” in the four appeals this circuit had

decided on July 7. Then United States v. Dixon, 2011 U.S.

App. LEXIS 16374 (3d Cir. Aug. 9, 2011), followed Rojas

without explaining why it chose August 3 rather than

November 1 as the transition date. Most recently, United

States v. Sidney, 2011 U.S. App. LEXIS 16421 (8th Cir.

Aug. 10, 2011), agreed with Fisher and concluded that

§109 does not permit partial retroactivity.

When the Executive Branch confesses error, this circuit

gives respectful consideration to the rationale for the

new position. A recent example is United States v. Corner,

598 F.3d 411 (7th Cir. 2010) (en banc), which overruled

several of the circuit’s decisions after the Solicitor

General filed a brief carefully explaining where the

circuit had gone wrong. That explanation carried the

day; Corner was unanimous. Unfortunately, the Attorney

General’s “Memorandum for all Federal Prosecutors”

lacks the sort of analysis that was so helpful in Corner.

The Memorandum does not discuss §109 or the language

of the 2010 Act. It does not explain why partial retroactivity is appropriate—or why the transition should

depend on the date of sentencing rather than some

other event, such as a guilty plea or appeal. The

Attorney General does quote from the caption of S. 1789,

which describes the proposal as “A bill to restore fairness to Federal criminal sentencing”, but this language

precedes the enacting clause and is not part of the

United States Code. It also is unhelpful in evaluating

a proposal for retroactive application. Every law lowering

sentences expresses a legislative conclusion that sentences had been excessive. The common law responded

by applying penalty reductions retroactively. But §109
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 7

provides otherwise. The observation that Congress,

the President, and many federal judges think the

former rules excessively severe does not distinguish

the 2010 Act from any other law reducing sentences

and does not justify disregarding the anti-retroactivity

norm created by §109.

Douglas asked what reason there could be to continue

imposing sentences that the 2010 Act condemns as excessive. The same question could be asked about every

other law that reduces criminal sentences. The answer

must be that §109 itself supplies the reason. It tells us

that statutory lenience does not reduce the punishment

for acts completed before the new law took effect.

Perhaps the common law reflects greater wisdom than

does §109, but Congress has displaced the common law.

Although §109 says that only an “express” provision

in a later statute can support retroactivity, Congress is

entitled to change that rule just as it is entitled to

change the punishment for distributing crack cocaine.

The legislature of 1871 can’t tie the hands of the legislature sitting in 2010. This may be why the Court suggested in Marrero that a “fair implication” in a new

law could allow retroactive application. 417 U.S. at 659

n.10. An earlier decision, Great Northern Ry. v. United

States, 208 U.S. 452, 465 (1908), said that when a new

law “by necessary implication” applies to pre-enactment

crimes, the courts must follow the newer law rather

than §109. A necessary (or fair) implication falls short of

an express provision but could show that Congress has

amended §109 to that extent. Still, unless superseded, §109
8 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

is as authoritative as other rules found in the Dictionary

Act, 1 U.S.C. §§ 1–8, and in 18 U.S.C. §§ 5–27. Definitions,

presumptions, and presets are essential to understanding

legal texts. They are subject to revision, but a court

should not lightly infer that Congress has tossed out all

the framework laws that facilitate interpretation—and

thus facilitate legislation too, by giving the legislature

a formulary to use. See, e.g., Rowland v. California Men’s

Colony, 506 U.S. 194 (1993) (holding that the context

clause in the Dictionary Act allows departure from the

presumptive definitions only if there is no other

plausible linguistic understanding of the new statute).

See also Kentucky Association of Health Plans, Inc. v. Miller,

538 U.S. 329 (2003) (enforcing the rule in the McCarranFerguson Act that only federal laws expressly applying

to insurance supersede state regulatory schemes).

Neither the Attorney General nor any member of this

court believes that the 2010 Act is fully retroactive. To say

that the 2010 Act is not fully retroactive is to say that

Congress did not supersede §109, expressly or by implication. Section 109 forecloses partial retroactivity by

providing that the former law “shall be treated as still

remaining in force” for pre-amendment conduct. If §109

has not been superseded, what is the justification for

partial retroactivity? The Attorney General, like the first,

third, and eleventh circuits, is silent on that subject.

Some of my colleagues believe that support for partial

retroactivity can be found in §8 of the 2010 Act, which

provides:
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 9

The United States Sentencing Commission shall—

(1) promulgate the guidelines, policy statements, or amendments provided for in

this Act as soon as practicable, and in any

event not later than 90 days after the date

of enactment of this Act, in accordance

with the procedure set forth in section

21(a) of the Sentencing Act of 1987 (28

U.S.C. 994 note), as though the authority

under that Act had not expired; and

(2) pursuant to the emergency authority

provided under paragraph (1), make such

conforming amendments to the Federal

sentencing guidelines as the Commission

determines necessary to achieve consistency with other guideline provisions

and applicable law.

A requirement for a change in Guidelines within 90 days

of the new law’s enactment does not imply anything

about minimum and maximum sentences on August 3,

2010. The new Guidelines came into effect on November 1,

2010. This is the source of the date that Douglas chose.

The first circuit thought it would be incongruous if the

new Guidelines, but not the new minimum and maximum sentences, applied to defendants sentenced on

or after November 1, 2010. This does not support the

Attorney General’s view that August 3 marks the transition. Putting the statutory changes into effect while

the Commission was still deliberating would be just as

incongruous as putting the Guidelines but not the new
10 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

minimum and maximum penalties into effect. Yet none

of my colleagues concludes that the rules change for

sentences on November 1, 2010, or for that matter November 1, 2011—when the 2010 Guidelines will be given

retroactive effect. See Sentencing Commission Release

of July 1, 2011, making Amendment 750, which implemented the 2010 Act, retroactive as of November 1, 2011.

(The Commission’s authority to apply new Guidelines

to closed cases comes from 18 U.S.C. §3582(c)(2). See

Dillon v. United States, 130 S. Ct. 2683 (2010).)

A reader might be inclined to ask why the 2010 Act’s

changes to minimum and maximum sentences should

not take effect on November 1, 2010, the same date as

the revised Guidelines—for revised Guidelines apply to

new sentences even if the conduct took place years

earlier. See 18 U.S.C. §3553(a)(4)(A)(ii); United States v.

Demaree, 459 F.3d 791 (7th Cir. 2006). There is no inconsistency however, because the Guidelines and the 2010

Act are doing different things. The statute that provides

penalties for cocaine and cocaine base, 21 U.S.C. §841(b),

sets minimum and maximum punishments; the Guidelines then influence where within that range the judge

imposes sentence. The 2010 Act amended §841(b).

Judges are free to disagree with the Commission, see

United States v. Booker, 543 U.S. 220 (2005); Kimbrough v.

United States, 552 U.S. 85 (2007), but they are not free to

disagree with Congress. Thus we have two retroactivity

dates. One is when the new minimum and maximum

penalties take effect; the other is when the revised Guidelines take effect. The Commission has, and has used,

statutory authority to apply the lower Guidelines even
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 11

to closed cases starting November 1, 2011. The Commission lacks any equivalent authority to make different

statutory minimum and maximum sentences applicable

to cases in which the criminal conduct predated August 3,

2010.

These four appeals are about the retroactivity of the

changes to the statutory minimum and maximum sentences, not about the amended Guidelines. And this is

why §8 of the 2010 Act does not affect these appeals.

Changes to the Guidelines have nothing to do with minimum and maximum sentences. That was settled in Neal

v. United States, 516 U.S. 284 (1996), which the Court

reaffirmed in Kimbrough and DePierre v. United States,

131 S. Ct. 2225 (2011). When the Commission dramatically

lowered the Guideline ranges for LSD, defendants

argued that it would be preposterous to apply the new

Guidelines (which do not count the weight of the

carrier medium) while leaving unchanged the statutory

minimum, which Chapman v. United States, 500 U.S. 453

(1991), holds does count the carrier’s weight. Neal held,

however, that the statute and the Guideline are unconnected and that arguments about incongruity do not

justify modifying the statutory minimum and maximum sentences.

The ratio in the Guidelines has not been 100:1 since 2007.

That year, the Sentencing Commission dropped most

cocaine-base sentences by two levels. See Amendment 706,

effective November 1, 2007 (and made retroactive by

Amendment 713 as of March 3, 2008). The result of the

2007 change was a ratio that, depending on quantity,
12 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

could be as low as 25:1 or as high as 80:1. For many offenders the further change in 2010 does not matter. No

one who distributes 8.4 kilograms or more of cocaine

base received a lower Guideline range. Many common

quantities have the same base offense level before and

after the 2010 change to U.S.S.G. §2D1.1. For example,

the level for distributing 1 kilo dropped from 36 to 34

in 2007 but stayed at 34 in 2010. Some defendants

receive a benefit from both revisions: the level for 100

grams of crack fell from 30 to 28 in 2007 and to 26 in

2010. My point is not that the 2010 changes are slight

for everyone—the benefit can be large for persons

who distribute small quantities (the level for 5 grams

drops from 24 to 16)—but that the Guidelines abandoned

the 100:1 ratio in 2007, not 2010. Neither in 2007 nor in

2010 did Congress link the time of change in the Guidelines’ ratio to the time of change in the minimum and

maximum penalties.

Section 8, which tells the Commission to get a move

on in revising its Guidelines, does not imply anything

about when the new minimum and maximum sentences

go into force. Because for some quantities the difference

between the 2007 and 2010 quantity tables is small

or nonexistent, one effect of the rapid revision is to increase penalties swiftly for the most serious offenders

(and to increase the difference between the penalties

for the worst offenders and the least serious ones)—as

sections 5 and 6 of the 2010 Act call for higher Guidelines when certain aggravating factors are present, while

§7 directs the Sentencing Commission to reduce the

punishment for offenders with minimal roles. Those

changes are unrelated to the crack/powder ratio.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 13

The 100-to-1 ratio was created by legislation in 1986. In 1990 ‡

Congress directed the Sentencing Commission to study the

(continued...)

Section 10 of the 2010 Act tells the Sentencing Commission to study the effects of the new legislation and

report within five years. Dixon observed that, unless the

new legislation applies retroactively, the study will be

limited to the law’s effect on persons who distribute

cocaine base after August 2, 2010. So? There will be

plenty of people in that category. The point of such a

study is to ascertain how lower penalties affect the

volume of crime. People who distributed cocaine before

the 2010 Act expected to be subject to the old penalty

structure; their behavior cannot be changed by a later

drop in sentences. A study of the 2010 Act’s effects will

produce meaningful results only if limited to persons

whose criminal conduct occurs while the 2010 Act is in

force. I do not think that §10 supplies much footing for

an inference one way or the other, but, if §10 is relevant,

Dixon got things backward.

Thoughtful people might wonder what sense it makes

for Congress, having decided that a 100-to-1 ratio is

excessive, to leave the minimum and maximum sentences alone for persons whose crimes predate August 3,

2010. It is a good question, to which there is no satisfactory answer other than the observation that legislation is an exercise in compromise. Some legislators supported the existing 100-to-1 ratio between cocaine base

and powder cocaine, while others thought that the two

versions of this drug should be treated the same, as

the Sentencing Commission once recommended. Some ‡
14 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

(...continued)

subject. The Commission has issued four reports, each making

a different proposal. See Cocaine and Federal Sentencing Policy

(Feb. 1995) (proposing 1:1); Cocaine and Federal Sentencing Policy

(Apr. 1997) (recommending 5:1); Cocaine and Federal Sentencing

Policy (May 2002) (recommending ratio of “at least” 20:1);

Cocaine and Federal Sentencing Policy (May 2007) (recommending

20:1 or less). Until 2010 Congress did nothing in response to

these reports, except that in 1995 it blocked proposed changes

that would have made the Guidelines’ ratio 1:1. In 2007, however, Congress allowed the Commission to change the ratio in

the Guidelines by reducing most cocaine-base ranges by two

offense levels, while the statutory minimum and maximum

sentences continued to reflect a 100:1 ratio. Kimbrough summarizes this history. 552 U.S. at 94–100. That it took 24 years to

change the much-criticized 100:1 ratio in §841(b)—and that three

sections of the 2010 Act call for higher penalties for some drug

distributors—demonstrates the difficulty of creating a package

that can attract majority support.

members of Congress wanted to reduce the disparity by

raising the penalties for powder cocaine; others wanted to

address it by reducing the penalties for crack. Members of

Congress compromised at a ratio of 18 to 1, with most

change coming through reductions in minimum and

maximum terms of imprisonment.

There’s no scientific basis for the 18-to-1 ratio, or for

getting there by reducing crack sentences rather than

increasing powder sentences, but it was the best that the

advocates of parity could achieve (or, equivalently, the

most that other legislators would concede). I don’t mean

by this that the 18:1 ratio is irrational, only that it is
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 15

arbitrary, in the same sense that a statute of limitations

is arbitrary. (Why 90 or 270 days for employment-discrimination suits, 2 years for claims under the Federal

Tort Claims Act, 4 years for the residual statute in 28

U.S.C. §1658, and 5 years for most federal felonies?)

Many Members of Congress who wanted parity also

favored retroactivity, and Members who supported a

higher ratio also favored no retroactivity. One way proponents of this law could achieve a lower ratio was to

give up on retroactivity. The ratio, and retroactivity,

are among the several dimensions of this compromise.

Most legislative deals are struck off the floor. I do not

claim inside knowledge about this one. Perhaps I err

in guessing about how this law came to have an 18:1

ratio and to allow the Sentencing Commission to implement retroactive Guidelines. I broach this subject only

to say why I do not find persuasive an argument along

the lines of: “The revised Guidelines were in place by

November 1, 2010, so the new minimum and maximum

penalties must apply to at least some persons whose

crimes occurred before August 3, 2010.” That theme

disregards the compromise nature of legislation.

When Congress enacts a bill, a majority agrees on its

text, not on grand principles. Neither side got everything it wanted in this statute, and judges disserve the

legislative process by giving one side more than it

secured at the bargaining table. Indeed, the tendency to

provide one side with “just a little more in the right

direction” can make legislation harder to accomplish

by requiring Congress to take up, and resolve, all of the
16 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

ways in which the judiciary might be tempted to tinker. “[N]o legislation pursues its purposes at all costs.

Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective is

the very essence of legislative choice—and it frustrates

rather than effectuates legislative intent simplistically

to assume that whatever furthers the statute’s primary

objective must be the law.” Rodriguez v. United States,

480 U.S. 522, 525–26 (1987) (emphasis in original). For

all we can know, a belief in Congress that the judiciary

would make the law partially retroactive would have

stiffened the opposition to the bill, and the 100:1 ratio

would still be in force today.

Choosing an effective date for new legislation can be

as arbitrary as deciding how many grams of cocaine

hydrochloride receive the same treatment as one gram

of cocaine base. The Attorney General relies heavily on

the word “fair” in the title of the Fair Sentencing Act,

but what’s fair about condemning someone sentenced

on August 2 to more time in prison than a person sentenced the next day, even though they committed

their crimes on the same date (and may have been coconspirators)? Suppose comrades in crime distribute

cocaine in mid-2009 and are caught promptly. One confesses, pleads guilty, and testifies at the trial of the

other, who fights tooth and nail and falsely denies culpability. The first is sentenced on August 1, 2010, the

second on September 1. How would it be “fair” (or even

conscionable) to give the lower sentence to the person

who refused to accept responsibility for his crimes,
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 17

just because by dragging out the process that person

was sentenced after August 2?

It would be weird to conclude that, the longer it

takes to issue an indictment, or the better the offender

at evading capture, and hence the later the sentencing

date, the lower the sentence. Why should the changes

in the minimum and maximum terms take effect

before the changes in the Guidelines (November 1, 2010)?

Rojas, Dixon, and the Attorney General do not even try

to explain why they chose August 3 rather than November 1 as the transition date. Why change the rules as of

the date of sentencing rather than the date of arraignment, plea, or trial, the date the appeal is decided, or

some other event? Any of those transition dates

would produce incongruities. Only full retroactivity, or

no retroactivity, treats equal criminal conduct equally.

If the President wants to apply the lower minimum

and maximum penalties to all cases, pending and closed,

he has only to issue a general commutation. The pardon power permits the President to achieve retroactive

lenience if he is willing to pay the political price. By

contrast, the judiciary must implement compromises

faithfully, even when most judges wish that the

political decision had been different. I have therefore

voted not to hear these appeals en banc.
18 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

WILLIAMS, Circuit Judge, with whom POSNER, ROVNER,

WOOD, and HAMILTON, Circuit Judges, join, dissenting

from the denial of rehearing en banc. The sentences

Congress had originally mandated for crack cocaine

offenses premised on drug quantities that were one

hundred times lower than those for powder cocaine

offenses are indefensible. There is no debate about that.

Recognizing this, Congress wiped them out in the

Fair Sentencing Act of 2010 to, in its own words,

“restore fairness in Federal cocaine sentencing” by eliminating the 100:1 mandatory minimums. The only question in this case, odd as it might sound, is whether Congress wanted everyone sentenced after the Fair Sentencing Act became law to receive a “fair” sentence, or

just some.

Our circuit should have heard this case en banc. Three

other circuits have ruled that judges no longer must

impose unfair sentences after the Fair Sentencing Act.

This issue affects pending cases and many cases to come

in light of the five-year statute of limitations on drug

prosecutions. There were equal votes to grant and deny

rehearing en banc. So our circuit’s law stands, and it

is wrong.

I.

Anthony Clardy was sentenced after the Fair Sentencing Act became law. The quantity of crack cocaine

involved was too small to trigger a mandatory minimum under the Fair Sentencing Act (“FSA”), and the

judge imposed a sentence of 33 months’ imprisonment.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 19

The United States government, exercising the discretion to

appeal sentences that it has, argued to us that Clardy

should be sentenced to the higher pre-FSA mandatory

minimum because the drug deal happened before the

FSA’s passage. For Clardy, that would mean a sentence of

120 months in prison. That sentence is so lengthy, and is so

out of line with what the experienced sentencing judge

thought the proper sentence should be, because it is

premised on the 100-to-1 crack to powder ratio that has

been acknowledged to be baseless.

If the FSA applies to him, then, Anthony Clardy will

serve a 33-month sentence. If it does not, his sentence

will soar to 120 months. Perhaps this difference sounds

overly dramatic, or leads one to think that the sentencing

judge must have initially imposed a light sentence.

That would be wrong. The United States Sentencing

Guidelines advised a sentence of 30 to 37 months’ imprisonment here. The judge sentenced Clardy right in the

middle.

II.

We consolidated the government’s appeal of Clardy’s

sentence with its appeals in three other cases, all

involving defendants who committed crimes before

the FSA became law on August 3, 2010, but who were

sentenced after that and under its terms. Each had

an amount of crack cocaine that triggered a mandatory minimum under the old law that was less than

an increased triggering amount under the FSA. In light

of our ruling in United States v. Fisher, 635 F.3d 336 (7th
20 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

Cir. 2011), reh’g en banc denied, 2011 WL 2022959 (7th Cir.

May 25, 2011), a panel of our court agreed with the government, vacated the sentences imposed by the district

judge, and said the pre-FSA mandatory minimums

must apply to each person. See Nos. 11-1558, et al., United

States v. Holcomb, et al., Order (7th Cir. July 7, 2011).

Now the United States government has changed its

position. Completely. On July 15, 2011, the United States

Attorney General issued a memorandum stating he has

“concluded that the law requires the application of the

Act’s new mandatory minimum sentencing provisions

to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.” (emphasis

added). The Attorney General directs prosecutors to act

accordingly and concludes: 

I am taking this position because 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.

The United States government is not alone. The First

Circuit ruled after us, even before the Attorney

General’s memorandum, that the FSA was not limited to

defendants whose conduct occurred after its passage.

United States v. Douglas, 644 F.3d 39 (1st Cir. May 1,

2011). So did the Eleventh Circuit. United States v. Rojas,

2011 WL 2623579 (11th Cir. July 6, 2011). The Third Circuit
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 21

has recently followed. United States v. Dixon, ___ F.3d ___,

2011 WL 3449494 (3d Cir. Aug. 9, 2011). Only the Eighth

Circuit has declined to apply the FSA to crack offenders

sentenced after its passage. United States v. Sidney, ___

F.3d ___, 2011 WL 3477200 (8th Cir. Aug. 10, 2011).

Attaching the Attorney General’s memorandum, the

government filed a Notice of Changed Position informing us of its new position regarding these four defendants. It has done the same thing in other cases as

well. Despite the government’s position that the FSA

applies in sentencings after its passage including these,

the law of our circuit remains the same.

There is an unfilled vacancy on our court, so we have

an equal number of active judges. Half of the active

judges on this court, including the two who were on the

original panel in Fisher, voted to rehear these consolidated cases en banc. Indeed, the changes in the landscape that have taken place after our ruling are significant. Certainly our obligation is to evaluate the merits

of the statute ourselves, but the government’s “confessions

of error are, of course, given great weight.” Sibron v.

New York, 392 U.S. 40, 58 (1968); accord Young v. United

States, 315 U.S. 257, 258-59 (1942).

But half does not a majority make, and so it is not

enough to obtain a rehearing en banc in our court.

I believe our circuit should reexamine its position, especially in light of the events since our initial decision,

and that it should do so because our position is wrong.

For the reasons I explained in my dissent from the denial

of rehearing en banc in Fisher, 2011 WL 2022959, along
22 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

with those I explain here, I dissent from the denial of

rehearing en banc.

III.

The heightened mandatory minimums for crack

cocaine offenses were based on false assumptions. The

Sentencing Commission knows this. See United States

Sentencing Commission, Report to Congress, Cocaine and

Federal Sentencing Policy (May 2002) (“The 100-to-1 drug

quantity was established based on a number of beliefs

about the relative harmfulness of the two drugs and

the relative prevalence of certain harmful conduct associated with their use and distribution that more

recent research and data no longer support.”). The

United States Attorney General knows this. See Statement

of the Attorney General on the Passage of the Fair Sentencing Act, July 28, 2010, available at http://www.justice.gov/

opa/pr/2010/July/10-ag-867.html (“The bill greatly

reduces the unwarranted disparity in sentences for crack

and powder cocaine offenses”). Congress knows this.

See, e.g., 156 Cong. Reg. 1680 (Mar. 17, 2010) (statement

of Sen. Durbin, FSA’s author, on day it passed the Senate) (“Every day that passes without taking action to

solve the problem is another day that people are being

sentenced under a law that virtually everyone agrees is

unjust . . . . If this bill is enacted into law, it will immediately ensure that every year, thousands of people are

treated more fairly in our criminal justice system.”)

(emphasis added). And so Congress passed the Fair

Sentencing Act of 2010, which became law when the
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 23

President signed it on August 3, 2010 surrounded by

bipartisan Congressional leaders and the Attorney General.

Upon that signature, I believe the Fair Sentencing

Act’s lower mandatory minimums for crack cocaine

offenders applied to all defendants sentenced after it.

The only real argument against such a reading stems

from the general saving statute, 1 U.S.C. § 109, which

Congress passed after an 1871 Supreme Court decision.

When the offense in the case was committed, it carried

a $500 to $1000 fine or a prison term of three to five

years. After the defendant’s indictment but before trial,

Congress amended the penalty provision to a $300 to

$1000 fine and one to five years in prison. The Supreme

Court reasoned that because the penalty provisions of the

two statutes conflicted, the new statute operated as a

repeal of the earlier one. It held as a result that “all

criminal proceedings taken under [the old statute] fell”

because, it said, “[t]here can be no legal conviction, nor

any valid judgment pronounced upon conviction,

unless the law creating the offence be at the time in existence.” United States v. Tynen, 78 U.S. 88, 95 (1871). It

then directed that the indictment be dismissed. Id.

Congress passed the general saving statute in

response, repealing the common-law presumption.

Passing the statute made sense in that context. See

Hamm v. City of Rock Hill, 379 U.S. 306, 314 (1964) (“It

was meant to obviate mere technical abatement such as

that illustrated by the rule in Tynen.”). In relevant part,

the saving statute provides:
24 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

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 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.

The saving statute, then, ensures that pre-existing penalties continue, unless Congress later directs otherwise.

Before its change of position, the government used to

point us to a Supreme Court saving clause case, Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653 (1974). There,

the Court ruled against a prisoner long-ago sentenced

who sought to benefit from a new statute making

persons convicted of his offense parole eligible, which

was not true at the time he had been sentenced. That

case contains the language, “the saving clause has

been held to bar applications of ameliorative criminal

sentencing laws repealing harsher ones in force at the

time of the criminal offense.” Id. at 664 (citing cases

from D.C., Second, and Fourth Circuits). That statement

is true as far as it goes—a description of what three

circuit court cases it cited for that proposition had done.

And it accurately describes what the saving clause can

do—it can bar the application of a later more lenient

sentencing law when the offense happened before its

passage.

But Marrero did nothing to change what the Supreme Court made clear over one hundred years ago: the
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 25

saving statute does not bar a later law’s lower

penalties from immediately taking effect if Congress

wants them to. The Supreme Court explained that

because the saving statute “only has the force of a

statute, its provisions cannot justify a disregard of the

will of Congress as manifested either expressly or by

necessary implication in a subsequent enaction.” Great

Northern Ry. Co. v. United States, 208 U.S. 452, 465 (1908)

(emphasis added); see also id. at 466 (analyzing whether

statute “expressly or by fair implication” conflicted with

general rule in saving statute). Marrero explicitly reaffirmed that principle. It stated that “only if [the statute

at issue there] can be said by fair implication or expressly

to conflict with § 109 would there be reason to hold

that [the statute at issue] superseded § 109.” 417 U.S. at

659 n.10 (emphasis added). The Supreme Court in

Marrero did not find in the new law a fair implication

that Congress wanted someone like Marrero to be parole

eligible; indeed, the statute there had a saving clause of

its own. The relevant point from Marrero for our case is

that it reaffirmed Great Northern. And that remains the

law. See Douglas, 644 F.3d at 43; see also Marcello v.

Bonds, 349 U.S. 302, 310 (1955).

So Congress did not need to say in the Fair Sentencing

Act, “this Act applies to any person sentenced hereafter for crack cocaine offenses, even if the conduct

giving rise to conviction took place before this Act’s

passage,” for it to apply in all sentencings thereafter.

That would be one way to do it. But the Supreme Court

does not require it. The other way, which has the

exact same effect, is for Congress to manifest by “fair
26 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

implication” its will to extinguish the higher mandatory

minimums for crack cocaine offenses for all defendants

sentenced after the Act’s passage.

That is the implication of the Fair Sentencing Act.

IV.

Only one reasonable implication can be drawn from

section 8 of the Act, which provides: 

SEC. 8. EMERGENCY AUTHORITY FOR

UNITED STATES SENTENCING COMMISSION.

The United States Sentencing Commission shall—

(1) promulgate the guidelines, policy statements, or amendments provided for in

this Act as soon as practicable, and in any

event not later than 90 days after the date

of enactment of this Act, in accordance

with the procedure set forth in section

21(a) of the Sentencing Act of 1987 (28

U.S.C. 994 note), as though the authority

under that Act had not expired; and

(2) pursuant to the emergency authority

provided under paragraph (1), make such

conforming amendments to the Federal

sentencing guidelines as the Commission

determines necessary to achieve consistency with other guideline provisions

and applicable law.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 27

Pursuant to 18 U.S.C. § 3553(a)(4)(A)(ii), sentencing

judges are to employ the guidelines that are in effect on

the date of sentencing. See also U.S.S.G. § 1B1.11(a). With

that knowledge, and invoking “emergency” authority,

Congress demanded that the lower guidelines take

effect in sentencings “as soon as practicable” and within

ninety days at the absolute latest. That means Congress

wanted guidelines based on an 18:1 powder/crack ratio

to take effect right away, even in sentencings where

the offender’s conduct pre-dated the Act. (There are

bound to be many such cases in light of the five-year

statute of limitations for drug offenses, 18 U.S.C. § 3282,

and the time it takes to investigate and prosecute

such cases.) The Commission promulgated new guidelines consistent with the FSA on November 1, 2010, and

these “became applicable to all defendants sentenced

after that date, regardless of when they committed their

crimes.” United States v. Watts, 2011 WL 1282542, at *8

(D. Mass. Apr. 5, 2011).

It makes no sense for Congress to will that guidelines

based on an 18:1 ratio take effect immediately in

sentencings even for crimes committed before the Act

if those same defendants would be subject to pre-FSA

100:1 mandatory minimums. Why would Congress want

that? That kind of sentencing scheme makes no sense.

We are required to interpret statutes in a way that does

not lead to nonsensical results. United States v. Rutherford,

442 U.S. 544, 552 (1979). Congress’s will must have

been either that the 18:1 ratio apply to all persons sentenced after the Act, or that the 18:1 ratio apply only to

persons whose conduct took place after the Act.
28 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

The language Congress chose to use supports only the

former. It demanded of the Sentencing Commission, “Use

the 18:1 ratio. ASAP.” That meant that for sentencing

judges using the new guidelines, “Use the 18:1 ratio.

ASAP.” The fair implication of these demands is that

Congress meant “Use the 18:1 ratio. ASAP” in all aspects

of sentencing. It’s really the only implication that

makes sense.

Congress also demanded in section 8 that the Commission amend its guidelines “to achieve consistency”

with “applicable law,” meaning the new statutory minimums. The directive of “consistency” further shows

Congress’s will that the FSA be applied to pending

cases, since the guidelines would be applied to

pending cases. Using a pre-FSA 100:1 minimum coupled

with an 18:1 guideline to decide a sentence does not

“achieve consistency.” It achieves the opposite. Cf.

Abbott v. United States, 131 S. Ct. 18, 28 (2010) (rejecting

interpretation that “would result in sentencing

anomalies Congress surely did not intend”).

And in section 10 of the FSA, Congress directed the

Sentencing Commission to study the effects of the FSA

and submit a report to Congress regarding the impact of

the changes in federal sentencing law “[n]ot later than

5 years after the date of enactment of this Act.” Under

our circuit’s rule, and in light of the five-year statute

of limitations on drug offenses, “during the time period

in which the Sentencing Commission is supposed to

produce a report on the effects of the FSA, the Act will

often be inapplicable.” United States v. Dixon, 2011 WL

3449494, at *6.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 29

The context surrounding the statute’s passage is important too. Exceptions to even clear statutes are to be

implied to prevent “consequences obviously at variance

with the policy of the enactment as a whole.” Rutherford,

442 U.S. at 552. The policy driving the FSA was the elimination of mandatory minimum sentences that had no

basis in fact or law, were based on false assumptions,

and that Congress and the Attorney General and the

Sentencing Commission and the President all believed

were inherently unjust. Congress stated its goal for the

FSA in its Preamble: “To restore fairness to Federal

cocaine sentencing.” Congress believed that passing the

new mandatory minimums helped restore that “fairness.”

At a fundamental level, then, as the Attorney General

asked in his memorandum, and other courts ask too,

why would Congress want sentencing judges to continue

to impose sentences that it had already declared to be

unfair?

There is no good answer to this question.

The fair, necessary, and only implication from the FSA

is that Congress expected and intended its mandatory

minimums to apply immediately.

V.

There are other arguments that could be made against

this reading, but none convince me that the FSA does

not apply in all sentencings after it became the law. It is

true that with a line drawn at the date of effect, there

will be instances where persons who pled guilty early
30 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

on in their cases or who did not try to evade capture do

not benefit from the new mandatory minimums, unlike

others who committed a crime on the same day or even

were involved in the same criminal activity. But a line

must be drawn somewhere. We cannot avoid that. To

draw the line at conduct, when Congress’s whole point

was to get rid of unjust 100:1-based sentences, and to

do so right away, would mean that “the legislative mind

will be set at naught.” Great Northern Ry. Co., 208 U.S. at

465. Congress gets to draw the line, and it drew it at

its passage. Cf. United States v. Acoff, 634 F.3d 200 (2d

Cir. 2011) (per curiam) (declining to apply the FSA to

defendant who had already been sentenced but had

not yet exhausted his appeals).

Some of my colleagues contend it would not be fair

to give less time to the co-conspirator who insisted on a

trial and who thus was sentenced after the FSA, while

giving more time to the cooperator who was sentenced

before that date. But this fails to take into account

two important sources of flexibility that are available to

the district court. First, for the cooperator sentenced

before the effective date, the government could move for

a sentence below the statutory minimum or (more likely)

file a motion to reduce the sentence under Federal Rule

of Criminal Procedure 35(b)(2). See also Fed. R. Crim. P.

35(b)(4) (“When acting under Rule 35(b), the court

may reduce the sentence to a level below the minimum

sentence established by statute.”). For the person sentenced after the FSA’s effective date, the district court

still has the option of choosing a sentence above the

guidelines range, as long as it stays below the normally
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 31

very high statutory maximum, if the court thinks that

a higher sentence is appropriate for the person who

went to trial. In short, there is plenty of authority to

fine-tune in the system, and so the unfairness to which

my colleagues allude is unlikely to come about.

Nor does my position mean that any time Congress

reduces a sentence for an offense that the lower penalty

takes effect in all sentencings immediately. The Fair

Sentencing Act is no ordinary statute. It makes no sense

for Congress to make it an “emergency” to get 18:1 guideline ratios in place if it wanted 100:1 minimums it

found inherently unjust to stay. Making it an “emergency”

to get 18:1 guidelines in place if the 100:1 minimums

still had effect makes even less sense because the guidelines were not the biggest emergency. District judges

have been able to sentence crack cocaine offenders more

comparably to powder cocaine offenders since the Supreme Court gave them the discretion to do so. See

United States v. Booker, 543 U.S. 220 (2005); Kimbrough v.

United States, 552 U.S. 85 (2007). Congress knew that.

Anyone following this issue knows that. The advisory

nature of the guidelines means that it was not the guidelines that were the biggest impediment to “restore fairness in Federal cocaine sentencing.” The 100:1 mandatory

minimums were the biggest problem because they

were just that, mandatory. Even knowing that, Congress

made getting more equitable guidelines into place a

matter of emergency. If getting only-advisory guidelines into place was a matter of emergency, taking 100:1

mandatory minimums off the books must have been

what, a code blue?
32 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

To point to Neal v. United States, 516 U.S. 284 (1996), as

supporting a contrary reading is to miss the point. In

Neal, the Court held that the Sentencing Commission’s

method of calculating LSD weight didn’t control the

weight calculation for purposes of a statute setting mandatory minimum sentences. 516 U.S. at 294-95. That’s

obvious. But our case is about what Congress did, not

the Sentencing Commission. There was no change to a

statutory mandatory minimum or maximum in Neal. See

id. The only change there was made by the Sentencing

Commission. See id. at 292-94. Section 8 matters because

it’s what Congress said, and what Congress said shows

it wanted the new sentences in effect right away.

And to emphasize the 2007 amendments to the sentencing guidelines also misses the mark. Despite the

changes in offense levels that resulted from those 2007

amendments, “[t]he amended Guidelines still produce[d]

sentencing ranges keyed to the mandatory minimums

in the 1986 Act.” Kimbrough, 552 U.S. at 99 n.10. The only

difference was that under the 2007 amended guidelines, “the 5- and 50-gram quantities produce[d] ‘base

offense levels corresponding to guideline ranges that

include[d] the statutory mandatory minimum penalties,’ ”

as opposed to ranges that slightly exceeded those statutory mandatory minimums. Id. (citing United States

Sentencing Commission, Report to Congress: Cocaine

and Federal Sentencing Policy 8 (May 2007)) (emphasis

omitted). That the base offense level for one who distributes 1 kilogram of crack cocaine remains the same after

the FSA and 2010 guideline amendments is also

irrelevant: that individual’s base offense level, 34, corre-
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 33

sponds to a range that exceeds even the post-FSA ten-year

mandatory minimum, and does not create an inconsistency. That the 2007 guideline amendments were not

linked to a change in the statutory penalties is obvious—there were no statutory changes to the mandatory

minimums in 2007. And so, despite my colleagues’ reliance on them, the 2007 amendments did not produce

the illogical disparity between the statutory minimums

and the guideline ranges that our rule in Fisher perpetuates, and do not assist us in determining whether

Section 8 of the FSA, which seeks to achieve consistency,

is a “fair implication” under the Savings Statute.

And, as I have already discussed, a contrary result is

nonsensical. Anthony Clardy’s case illustrates that. The

Sentencing Commission acted urgently at Congress’s

direction and promulgated new guidelines for crack

cocaine offenses on November 1, 2010. Clardy was sentenced after that. The district court judge looked to the

new guidelines recommended by the Sentencing Commission, as all agree he should do. These guidelines

were “consisten[t]” with the ratios reflected in the new

mandatory minimums as Congress had directed they

be. And what did the guidelines recommend for

Clardy’s involvement with 13 grams of crack cocaine? A

sentence of 30 to 37 months’ imprisonment, even in light

of his prior drug conviction that coupled with more than

5 grams of crack cocaine triggered a 120-month mandatory minimum under the old law. The necessary and

fair implication of the Fair Sentencing Act is that

Congress did not want the baseless 120-month mandatory minimum that existed before it to apply to Clardy.

It wanted him sentenced more fairly. 
34 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

That Clardy takes no benefit from the FSA demonstrates another reason why Congress could not have

wanted our circuit’s interpretation. That reading also, as

I explained in my Fisher dissent, 2011 WL 2022959, at *2,

benefits the worst offenders, as they are the ones who

stand to benefit from the new guidelines since their

guidelines range would be reduced, potentially to just

above the statutory minimum. But for someone like

Clardy, whose drug quantity was too small to trigger

any mandatory minimum sentence at all under the Fair

Sentencing Act, he receives only the knowledge that

the members of the Sentencing Commission think the

just sentence for him is nearly four times shorter.

Finally, the government had initially cited Landgraf v.

USI Film Products, 511 U.S. 244 (1994) to us, and it is now

the first case to which some of my colleagues point.

Landgraf, of course, was a civil case. The Court held

there that a petitioner could not benefit from more favorable damages provisions in the Civil Rights Act that

took effect while her case was on appeal. The FSA, in

contrast, is clearly not a statute that “would impair

rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties

with respect to transactions already completed.” Cf.

Landgraf, 511 U.S. at 280. Nor does it raise any constitutional concerns with its application, as the attempt to

invoke the Civil Rights Act’s punitive damages provision,

id. at 281, or a higher penalty in a criminal case would.

Landgraf also says that, “[w]hen [an] intervening statute

authorizes or affects the propriety of prospective relief,

application of the new provision is not retroactive.” Id.

at 273.
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 35

The necessary implication of the Fair Sentencing Act

is that its mandatory minimums apply in all sentencings

after its passage. Declining to read the FSA to apply to

offenders like Anthony Clardy would “undercut the bill’s

primary objective,” “result in sentencing anomalies

Congress surely did not intend,” benefit the “worst

offenders,” give “rise to . . . oddities,” and “not necessarily

promote more equitable outcomes.” Those are not my

words. They are the words of the Supreme Court from

just last year, when it rejected a reading of a mandatory

minimum statute that would do all those things. See

Abbott v. United States, 131 S. Ct. 18, 27-28 (2010).

VI.

The conclusion that the Fair Sentencing Act applies in

sentencings, all sentencings, after its passage is not

reached just by me, or my colleagues who join me. It is

the conclusion reached by the Attorney General of the

United States, and it is the official position the federal

government will be taking in every federal court across

the country. That is significant. We also rarely see such

a complete change of course from it. One of those times

was last year, with respect to whether sentencing judges

could consider the crack/powder disparity inherent in

the career offender guideline. The government’s change

of position, along with the fact that no other circuit had

agreed with our holding that judges could not, led us

to reflect further and helped us change our mind in

United States v. Corner, 598 F.3d 411 (7th Cir. 2010)
36 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

(en banc). Here too, I think the new developments are

worthy of reflection, and help show why our initial

interpretation was not the right one. (I’m not sure what

more the Attorney General needs to say, or would say

that is any different than that said here or by my

dissenting colleague, to help understand the position

that the FSA took effect in all sentencings upon its enactment. The Solicitor General’s brief that some of my

colleagues found to be so helpful in resolving Corner

made the same arguments already made by the

dissenters in the denial of rehearing en banc in the case

Corner overturned. See United States v. Welton, 583 F.3d

494, 500-04 (7th Cir. 2009).)

And although I think the text of the statute is clear

and yields only one result, to the extent it is unclear, we

should keep the rule of lenity in mind too. Under it,

“ambiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity.” Skilling v. United

States, 130 S. Ct. 2896, 2932 (2010); see also United States

v. Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances—where text, structure, and history fail to

establish that the Government’s position is unambiguously correct—we apply the rule of lenity and resolve

the ambiguity in [the defendant’s] favor.”). That rule

favors applying the FSA in all sentencings after its passage. See Douglas, 644 F.3d at 44. That the Attorney

General, the First, Third and Eleventh Circuits, and many

district court judges around the country have reached

the conclusion opposite from us only supports a finding

that at the least there is ambiguity in the statute, and that
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 37

it is not clear the FSA should not apply to everyone

sentenced after it. Indeed, the rule of lenity is “rooted

in the instinctive distaste against men languishing in

prison unless the lawmaker has clearly said they

should.” United States v. R.L.C., 503 U.S. 291, 305 (1992)

(plurality opinion) (quotations omitted).

It is the instinctive distaste against men and women,

but mainly African-American men like Anthony Clardy,

languishing in prison for committing crimes of crack

rather than powder cocaine, that led Congress to pass

the Fair Sentencing Act. 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. 

POSNER, Circuit Judge, dissenting from denial of rehearing

en banc. I join Judge Williams’s dissent unreservedly,

but offer this modest supplement to her excellent opinion.

Congress cannot bind successor Congresses. The fact

that the general saving statute says that a repeal is not

retroactive unless the repealing statute “expressly” states

that it is, 1 U.S.C. § 109, is some indication that a
38 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

repealing statute which, like the Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010),

does not say in so many words that its provisions are

retroactive is not. But the absence of an express statement

is not proof and did not bind the Congress that enacted

the Act last year. That may be why the Supreme Court has

said that a “necessary implication” of a new statute

would suffice to make it retroactive notwithstanding the

saving statute’s word “expressly,” Great Northern Ry. v.

United States, 208 U.S. 452, 465 (1908), and why the Court

further reduced the force of the saving statute by later

replacing “necessary implication” with “fair implication.”

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,

659 n. 10 (1974).

That interpretive standard is met in this case—a conclusion reinforced by the principle that statutes are not

to be interpreted literally when literal interpretation

would produce absurd results. “If literalness is sheer

absurdity, we are to seek some other meaning whereby

reason will be instilled and absurdity avoided.” Outlet

Embroidery Co. v. Derwent Mills, Ltd., 172 N.E. 462, 463

(N.Y. 1930) (Cardozo, C.J.); see also Commissioner v. Brown,

380 U.S. 563, 571 (1965); Green v. Bock Laundry Machine Co.,

490 U.S. 504, 527 (1989) (concurring opinion); FutureSource

LLC v. Reuters Ltd., 312 F.3d 281, 284-85 (7th Cir. 2002);

United States v. Balint, 201 F.3d 928, 932 (7th Cir. 2000); In

re Kaiser Aluminum Corp., 456 F.3d 328, 338 (3d Cir.

2006); Flynn v. Commissioner, 77 F.2d 180, 183 (5th Cir.

1935). “Even strict constructionists reject literal interpretation when the result would be senseless.” United
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 39

States v. Hudspeth, 42 F.3d 1013, 1014 (7th Cir. 1994)

(en banc).

Congress in section 2 of the Fair Sentencing Act,

seeking to correct the unwarranted disparity in punishment for crimes involving crack and powder cocaine,

raised the drug quantities needed to trigger the 5-, 10-,

and 20-year mandatory minimum sentences for offenses

involving crack imposed by 21 U.S.C. § 841(b). And in

section 8 it directed the Sentencing Commission to

amend the relevant sentencing guidelines within 90 days

to conform them to the provisions of the new statute.

The Commission did so.

The Commission cannot amend the statute that imposed

the old statutory minimum sentences. See Neal v. United

States, 516 U.S. 284, 294-95 (1996). (But that is all that

Neal holds, so far as bears on this case.) The question is

whether the new statute, by changing the statutory minimum sentences and ordering the Commission forthwith

to change its guidelines to comply with the new minimums, “fairly implies” that the new minimums govern

all sentences imposed after the new statute took effect.

The defendants were sentenced between February 7 and

March 4 of this year, and thus after the Fair Sentencing

Act was signed into law on August 3 of last year. Because

their drug quantities were below the triggering levels

for the new mandatory minimum sentences, if sentenced

under the amended guidelines they could each receive

a substantially reduced sentence.

Sentencing guidelines are applicable to all sentencings

that occur after they are promulgated regardless of
40 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

when the crimes for which the sentences are being

imposed were committed. 18 U.S.C. § 3553(a)(4)(A)(ii).

So unless the Act’s revised mandatory minimum sentences are also applicable to these defendants, they will

receive sentences in excess of the sentencing guidelines

that Congress—in directing the Sentencing Commission

to make haste to conform them to the new, more lenient

statutory minimums (more lenient because of the enhanced quantity thresholds)—intended would apply to

such defendants.

The perverse results of a literal interpretation are illustrated in the following tables. The first is general,

the second specific to the four defendants in the present

cases.

Mandatory Minimum

(months)

Guidelines Range

(months)

(Criminal History = II)

Pre-FSA FSA Pre-FSA FSA

5g 60 none 57–71 24–30

15g 60 none 57–71 37–46

28g 60 60 70–87 70–87

35g 60 60 87–108 70–87

50g 120 60 108–135 70–87

100g 120 60 108–135 70–87

280g 120 120 135–168 135–168

500g 120 120 168–210 135–168

2kg 120 120 210–262 168–210
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 41

Defendant Quantity Criminal

History

Category

FSA

Guidelines

Range

Pre-FSA

Mandatory

Minimum

% Increase in

Minimum

Sentence If FSA

Inapplicable

Christopher

Holcomb

20.7 g IV 46–57

months

60 months 5% – 30%

Anthony

Clardy

13.1 g III 30–37

months

120 months 224% – 300%

Kenneth

Brown

124 g VI 151–188

months

240 months 28% – 59%

Patrick

Moran

23.9 g V 70–87

months

120 months 38% – 71%

There is no reliance interest in punishing these defendants under the old law. And it would be fanciful to

suggest (and there is no indication) that members of

Congress who opposed the Fair Sentencing Act were so

chagrined that a handful of defendants might get

lighter sentences during a period of transition before the

new law became fully effective that they exerted themselves to prevent the inclusion in the Act of an express

statement that the new guidelines would override the

old statutory minimums for defendants sentenced after

the Act’s effective date. Realism suggests that the opponents were conciliated not by the omission of an express statement authorizing retroactive sentencing but

by sections 4 through 6 of the Act, which increase the

punishments for some drug offenses.

It would not be arbitrary to give these defendants the

benefit of the new law and the new guidelines, but not

defendants sentenced under the old law before the new

one was passed; for to allow those defendants to be
42 Nos. 11-1558, 11-1559, 11-1586 & 11-1758

resentenced would wreak havoc on finality in criminal

proceedings. It is true that the Sentencing Commission

has decreed that on November 1 of this year the new

guidelines will become retroactive, meaning that defendants sentenced under the old guidelines will be eligible

to seek resentencing under the new ones. But those defendants, if their crimes predated the effective date of the

Fair Sentencing Act, will continue to be subject to the

old statutory minimum sentences. As a result, the

number of defendants eligible to be resentenced will be,

in the Commission’s estimation, manageable (approximately 12,000). See News Release, “U.S. Sentencing Commission Votes Unanimously to Apply Fair Sentencing Act

of 2010 Amendment to the Federal Sentencing Guidelines

Retroactively” (June 30, 2011), www.ussc.gov/ Legislative_

and_Public_Affairs/Newsroom/Press_Releases/20110630

_Press_Release.pdf (visited July 30, 2011).

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 amendments that the new law ordained. An omnicompetent

Congress, leaving nothing to chance, would have made

this express statement even though the Supreme Court

has said in Great Northern and Marrero that courts

should treat a “fair” or “necessary” implication in a

new statute as sufficient to override the saving statute.

A few judges may think that Congress is omnicompetent;

more pretend to think that—what they really think
Nos. 11-1558, 11-1559, 11-1586 & 11-1758 43

being that literal interpretation of statutes is necessary

to save the nation from judicial tyranny. Such questionable thinking can lead to gratuitously silly results

in particular cases—these cases, for example.

8-24-11