United States Court of Appeals

For the First Circuit

No. 10-2341

UNITED STATES OF AMERICA,

Appellant,

v.

WILLIAM DOUGLAS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Stahl and Howard,

Circuit Judges.

Margaret D. McGaughey, Appellate Chief, with whom Thomas E.

Delahanty II, United States Attorney, was on brief for appellant.

David Beneman, Federal Defender, for appellee.

Judith H. Mizner, Assistant Federal Public Defender, Federal

Defender Office, on brief for the Federal Public Defender for the

Districts of Massachusetts, New Hampshire and Rhode Island, Amicus

Curiae.

May 31, 2011
Section 841(a) makes illegal specified acts including 1

distribution and possession with intent to distribute controlled

substances (including cocaine base); section 846 makes conspiracies

to do acts unlawful under section 841(a) a separate offense. By

contrast, section 841(b) does not define a criminal offense: it

lists the penalties, including maximum and in some cases minimum

sentences, for specific quantities of specific drugs.

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BOUDIN, Circuit Judge. In 2009, William Douglas and a

co-conspirator engaged in a number of sales of cocaine base to an

undercover agent in different locations in Maine. Thereafter,

Douglas pled guilty to a one-count information charging him with

conspiracy to distribute and to possess with intent to distribute

more than 50 grams of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A) and 846 (2006). Over the government's 1

objection, the district court ruled in substance that the reduced

mandatory minimums adopted by the Fair Sentencing Act of 2010, Pub.

L. No. 111-220, 124 Stat. 2372 (the "FSA"), governed Douglas'

sentence, and the government now appeals.

A chronology helps to set the stage. Douglas' crime

comprised acts occurring at various times in 2009. Douglas' guilty

plea occurred on January 11, 2010. The President signed the FSA

and it went into effect on August 3, 2010. Among other changes,

the new statute reduced in certain instances the mandatory minimum

prison terms prescribed under prior law for violations involving

cocaine base; it did so by increasing the drug quantity thresholds

required to trigger the specific mandatory minimums. Implicitly,
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it altered the ratio between those mandatory minimums and the

lesser ones prescribed for cocaine powder violations.

The old ratio was 100:1 and thus the five-year mandatory

minimum was triggered for 5 grams of cocaine base or 500 grams of

cocaine powder; the ten-year minimum was for 50 grams of cocaine

base or 5 kilograms of powder. 21 U.S.C. § 841(b)(1)(A)(ii)-(iii),

(b)(1)(B)(ii)-(iii) (amended 2010). The new statute triggered a

five-year minimum for 28 grams of cocaine base (leaving powder at

500 grams) and a ten-year minimum for 280 grams of cocaine base

(leaving powder at 5 kilograms). FSA § 2(a), 124 Stat. at 2372

(amending 21 U.S.C. § 841(b)(1)). In sum, the new minimums treat

cocaine base more harshly than powder at a ratio of about 18:1 (500

divided by 28 is roughly 17.86).

Sentences for federal crimes ordinarily begin with

calculations made pursuant to the federal sentencing guidelines

that contain--along with other instructions--an elaborate table

equating quantities of different drugs with different base offense

levels. See United States v. Jiménez-Beltre, 440 F.3d 514, 518-19

(1st Cir. 2006) (en banc) (process); U.S.S.G. § 2D1.1(c) (2010)

(table). When Congress first adopted mandatory minimums

distinguishing between cocaine base and cocaine powder on the 100:1

basis, the Sentencing Commission guidelines also employed the 100:1

ratio, although the ratio fell somewhat after 2007 guidelines

amendments. See Unfairness in Federal Cocaine Sentencing: Hearing
See Notice of a Temporary, Emergency Amendment to Sentencing 2

Guidelines, 75 Fed. Reg. 66,188 (Oct. 27, 2010); U.S.S.G. supp. to

app. C, amend. 748 (Supp. 2010) (amending U.S.S.G. § 2D1.1(c))

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on H.R. 1459, H.R. 1466, H.R. 265, H.R. 2178 and H.R. 18 Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm.

on the Judiciary, 111th Cong. 47 (2009) (prepared statement of Hon.

Ricardo H. Hinojosa, Acting Chair, U.S. Sentencing Commission).

The FSA did not amend the guidelines--a task ordinarily

left to the Commission subject to congressional veto. Rather, the

FSA directed the Commission to adopt new guidelines conforming to

the new statute, FSA § 8, 124 Stat. at 2374 (to be codified at 28

U.S.C. § 994 note), evidently intending that the Commission, along

with other changes, adjust its guidelines ranges for cocaine base

to match the new 18:1 ratio. See Unfairness in Federal Cocaine

Sentencing, supra, at 61.

The FSA directed the Commission to adopt these conforming

guidelines on an emergency basis no later than November 1, 2010.

FSA § 8, 124 Stat. at 2374. Consistent with what Congress

expected, e.g., 156 Cong. Rec. H6197 (daily ed. July 28, 2010)

(statement of Rep. Robert Scott); 156 Cong. Rec. S1680-81 (daily

ed. Mar. 17, 2010) (statement of Sen. Richard Durbin), the

Commission did adjust its guidelines table to correspond to the

18:1 ratio. The amendments took effect on November 1, 2010,

significantly reducing the base offense levels for specific

quantities of cocaine base.2
(effective Nov. 1, 2010). The Sentencing Commission has repromulgated the temporary, emergency amendments as permanent

amendments, which will become effective, absent congressional

action, on November 1, 2011. See Notice of Submission to Congress

of Amendments to the Sentencing Guidelines, 76 Fed. Reg. 24,960,

24,963 (May 3, 2011). 

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In the period prior to November 1, 2010, the government

and Douglas had been debating in the district court about the

framework for determining his sentence. Under the mandatory

minimums in effect at the time of Douglas' criminal acts in 2009,

50 grams or more of cocaine base triggered a mandatory minimum of

ten years; but the district court contemplated a sentencing after

November 1, when the guidelines table adjustments would create a

base guidelines range for Douglas' quantity of cocaine base of only

78-97 months (which could be altered by other guidelines

considerations).

By their own terms, guidelines changes are automatically

retroactive in one limited sense: defendants, including those who

committed their offense when prior guidelines were in effect, are

sentenced under the edition of the guidelines in force at the time

of sentencing (unless the new guidelines increase the sentence and

raise ex post facto concerns). 18 U.S.C. § 3553(a)(4) (2006);

U.S.S.G. § 1B1.11; United States v. Tejada-Beltran, 50 F.3d 105,

108 n.3 (1st Cir. 1995). As Douglas was to be sentenced after

November 1, he sought the benefit of the new, lower guidelines

shortly to come into force on that date.
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On October 27, 2010, the district court concluded that

Congress intended the new guidelines provisions to control from

November 1 forward but also--and this is the heart of the dispute

now before us--that by implication Congress intended the new

mandatory minimums based on the same 18:1 ratio to supersede the

higher mandatory minimums in effect in 2009 when Douglas' crime was

committed. United States v. Douglas, 746 F. Supp. 2d 220, 231 (D.

Me. 2010). On November 8, the court sentenced Douglas to 56 months

in prison rather than to the ten-year mandatory minimum set by the

pre-FSA drug statute. The government now appeals from the final

judgment. Because this same issue will arise in many cases now

pending, we expedited review.

The central issue presented is one of law reviewed de

novo on appeal. The FSA does not address retroactivity questions

at all and Congress, by inadvertence or design, may not have

addressed the matter. See In re Grand Jury, No. 10-2005, 2011 WL

1227683, at *2 (1st Cir. Mar. 23, 2011). However, while the FSA

itself does not expressly address retroactivity, a federal savings

statute, 1 U.S.C. § 109 (2006), sets a general default rule where

one statute supersedes another, providing in part that

[t]he 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
Many circuit court decisions hold that the FSA does not apply 3

retroactively, Goncalves, 2011 WL 1631649, at *6 n.8 (collecting

cases), but none we have discovered involves both a defendant

sentenced after November 1 and explicit attention to--and rejection

of--the specific kind of claim made by Douglas in this case.

District court judges have addressed the precise issue and are

divided. See United States v. Watts, C.A. No. 09-cr-300030-MAP,

2011 WL 1282542, at *11 (D. Mass. Apr. 5, 2011) (collecting cases).

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prosecution for the enforcement of such

penalty, forfeiture, or liability.

Because "incurred" means "to which one is subject,"

United States v. Goncalves, No. 10-1367, 2011 WL 1631649, at *5

(1st Cir. Apr. 28, 2011), Douglas when he committed the criminal

acts in 2009 became liable to the mandatory minimums then in effect

unless in some fashion the FSA itself altered the calculus.

Goncalves explained that--putting aside Congress' direction that

new guidelines be promulgated--the FSA does not qualify the general

rule of section 109, a position widely adopted in other circuits.

Id. at *6-7. But, as Goncalves was sentenced before November 1,

2010, we reserved there the issue that is now before us. Id. at *5

n.5.

The decisions of other circuits do not by clear holdings

decide the issue presented in this case. The government says that 3

section 109 subjects Douglas to the mandatory minimum that applied

when his crime was committed because the FSA does not "expressly

provide" otherwise and that the reduced guidelines ranges that

became effective on November 1, 2010, are themselves superseded as

to Douglas because the applicable mandatory minimum overrides the
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guidelines. See U.S.S.G. § 5G1.1(b); United States v. Sepulveda,

15 F.3d 1161, 1202 (1st Cir. 1993), cert. denied, 512 U.S. 1223

(1994).

The Maine district judge in this case, now joined by a

Massachusetts district judge, Watts, 2011 WL 1282542, came to the

opposite conclusion as to sentencings that occur on or after

November 1, 2010. Their reasoning is that Congress intended that

when the new guidelines embodying the 18:1 ratio came into effect,

defendants would be sentenced under the new guidelines, and use of

the pre-FSA mandatory minimums with the 100:1 ratio would defeat

this intention. By contrast, use of the new mandatory minimums,

set at the 18:1 ratio, creates no such conflict because they are

generally aligned with the new guidelines table.

The Supreme Court has already held that the "express"

language requirement does not require an explicit reference to

section 109 or a special retroactivity provision. Thus, the

savings statute may be overridden "either by express declaration or

necessary implication," Great N. Ry. Co. v. United States, 208 U.S.

452, 465 (1908), or when a new statute "can be said by fair

implication or expressly to conflict with § 109," Warden, Lewisburg

Penitentiary v. Marrero, 417 U.S. 653, 659 n.10 (1974). No

"magical passwords" are required. Marcello v. Bonds, 349 U.S. 302,

310 (1955).
See, e.g., 156 Cong. Rec. H6198 (daily ed. July 28, 2010) 4

(statement of Rep. James Clyburn); id. at H6202 (statement of Rep.

Daniel Lungren); 155 Cong. Rec. S10492 (daily ed. Oct. 15, 2009)

(statement of Sen. Jefferson Sessions); id. (statement of Sen.

Patrick Leahy).

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Certainly Congress expected the new 18:1 guidelines to go

into effect within 90 days, but the guidelines have always provided

only one jaw of the sentence for cocaine base; the other jaw has

been mandatory minimums that override more lenient guidelines.

U.S.S.G. § 5G1.1(b); e.g., United States v. Ward, 518 F.3d 75, 79

(1st Cir.), cert. denied, 129 S. Ct. 169 (2008). So it is not easy

to say, as a general matter, that a lowering of the guidelines,

even by Congress' direction, inherently requires or even implies

that higher mandatory minimums should be abandoned. 

But what is true in the general case may not be true in

all cases. Here, Congress thought that the 100:1 ratio--underlying

both the mandatory minimums and (until 2007) the old

guidelines--was unsound and unduly harsh, and it intended the 4

common use of the 18:1 ratio in both the new guidelines and the new

mandatory minimums. One can argue that Congress, having ordered

the new 18:1 guidelines to apply no later than November 1, 2010,

would not have wanted its end--fairer sentences--to be frustrated

by requiring judges to continue applying the old 100:1 minimums

ratio where the conduct predated the statute. 

Even so, the statute itself adopted new mandatory

minimums. Nothing would have been easier than for Congress to
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provide that the new mandatory minimums should take effect as of a

specific date, such as the adoption of the FSA itself, or to

provide that any sentence under the new guidelines should also be

governed by the new mandatory minimums. It is therefore not

difficult for the government to argue that Congress left matters to

its section 109 default solution, tying penalties to the date when

the conduct occurred.

As for evidence of actual intent, the FSA's legislative

history indicates Congress' concern about any proposal that would

require courts to resentence the vast number of prisoners in

federal custody serving sentences for pre-FSA cocaine base

offenses. See Restoring Fairness to Federal Sentencing: Hearing

Before the Subcomm. on Crime and Drugs of the S. Comm. on the

Judiciary, 111th Cong. 16-22 (2009); see also United States v.

Acoff, 634 F.3d 200, 205 (2d Cir. 2011) (Lynch, J., concurring).

But new sentences being imposed today for pre-FSA cocaine base

offenses are a far smaller category and present no such

administrative burden. 

None of the Supreme Court cases squarely governs this

case. Two of those cases (invoked by Douglas), United States v.

Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379

U.S. 306 (1964), overrode section 109 in problematic situations.

While the analytical explanation given in each case has little

bearing on this one, the cases do suggest that some sense of the
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"fair" result, arguably helpful to Douglas in light of the

reformist purpose of the FSA, sometimes plays a role in applying

section 109. See Goncalves, 2011 WL 1631649, at *6-7.

Perhaps closer to this case from a factual standpoint is

Marrero (relied on by the government); it held that Congress'

creation of parole eligibility for serious drug offenders,

overturning a prior statutory bar, would not apply retroactively to

those serving sentences for crimes committed prior to the new

statute. Marrero, 417 U.S. at 663-64. Still, the conflict between

an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem

to some more pronounced than making the availability of parole

depend on whether the prisoner committed the crime before or after

an amendment allowed parole.

Further, the imposition now of a minimum sentence that

Congress has already condemned as too harsh makes this an unusual

case. 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. The purity of the mandatory minimum regime has always

been tempered by charging decisions, assistance departures and

other interventions: here, at least, it is likely that Congress

would wish to apply the new minimums to new sentences. 
See Bifulco v. United States, 447 U.S. 381, 387 (1980) 5

(stating that the rule of lenity applies to "interpretations of

. . . the penalties" imposed by "criminal prohibitions"); cf.

Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in

Benchmarks 196, 209 (1967) (noting an "instinctive distaste against

men languishing in prison unless the lawmaker has clearly said they

should"), quoted in United States v. Bass, 404 U.S. 336, 348

(1971).

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Finally, while the rule of lenity does not apply where

the statute is "clear," e.g., Boyle v. United States, 129 S. Ct.

2237, 2246 (2009), section 109 is less than clear in many of its

interactions with other statutes, and that is arguably true in the

present case as well. Our principal concern here is with the

"fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10;

Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch

between the old mandatory minimums and the new guidelines and to be

drawn from the congressional purpose to ameliorate the cocaine base

sentences. But the rule of lenity, applicable to penalties as well

as the definition of crimes, adds a measure of further support to

Douglas.5

Three additional matters require brief comment. First,

the sentence imposed on Douglas was not only below the old

mandatory minimum but also four months below the new FSA mandatory

minimum. Douglas admitted to trafficking more than 50 grams of

cocaine base--below the 280 grams triggering the FSA ten-year

mandatory minimum but above the 28 grams prescribed by the FSA for

a five-year minimum. FSA § 2(a)(2), 124 Stat. at 2372 (amending 21
Under the guidelines, an applicable mandatory minimum raises 6

the guidelines range, U.S.S.G. § 5G1.1(b), so the use of the tenyear minimum would have raised the starting point for the discount

to 120 months, whereas the five-year minimum left the computed

range at 70-87 months. See United States v. Li, 206 F.3d 78, 89

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U.S.C. § 841(b)(1)(B)). Douglas' guidelines range, after

adjustments, was 70-87 months; but the district court departed

downward to 56 months based on a government departure motion. 18

U.S.C. § 3553(e); U.S.S.G. § 5K1.1.

Absent that motion, the district court could not have

gone below five years even for a defendant in Douglas' position,

sentenced after November 1. While Congress meant the new

guidelines to control sentencings after November 1, 2010, it cannot

have intended that its new mandatory minimums be ignored, for the

new mandatory minimums were adopted in the same statute as the

directive that new guidelines be adopted. Neither party disputes

this view. However, as the government consented to a downward

departure, we have to ask ourselves--even though neither party so

argues--whether that consent moots the appeal.

The sentencing transcript shows that the government

reserved for appeal, with no disagreement by anyone, its position

that the correct mandatory minimum remained ten years. And in the

colloquy the judge made clear that his own choice of a final

sentence, based on a discount from the correct guidelines sentence,

was influenced by his view that the correct mandatory minimum was

five years rather than ten years. Because the government's appeal 6
(1st Cir.) ("[T]he proper starting point from which a departure is

to be subtracted or to which it must be added is the greater of the

guideline range or the mandatory minimum."), cert. denied, 531 U.S.

956 (2000).

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challenges the premise, the appeal is not moot. Cf. United States

v. Rodriguez, 630 F.3d 39, 43 (1st Cir. 2010); United States v.

Boardman, 528 F.3d 86, 87 (1st Cir. 2008).

Second, when Douglas entered into a plea agreement and

pled guilty to the charge against him, he admitted not only to the

offense but also to an amount of drugs that corresponded to a

minimum ten-year sentence under then-existing law. 21 U.S.C.

§ 841(b)(1)(A) (amended 2010). In some such plea agreements, the

government may in exchange for the plea make concessions to the

defendant such as the dismissal of other pending charges, promises

as to recommended sentences and the like. To the extent that

Congress thereafter reduces the penalties, the government in such

a case may be deprived of the benefit of its bargain.

Of course, if Congress intended the new, lower penalties

to apply, the defendant not yet sentenced is ordinarily going to be

entitled to their benefit. But it may well be arguable that--where

the earlier and higher penalty was part of the bargain--the

government may in certain circumstances be entitled to withdraw

from the plea agreement if the bargain is now frustrated by the

change in penalties. This problem may arise in a variety of
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situations and assuredly raises legal issues that have not been

raised or briefed in this case.

The government has not suggested to us that the plea

agreement itself precludes Douglas from making his present argument

or that the government gave up anything in the plea agreement in

reliance on the higher mandatory minimum. But the latter claim, at

least, is likely to be advanced in some future cases. We take note

of the problem partly to alert lawyers and judges to it but

primarily to stress that nothing we have said is intended to

resolve it in any of its many variants.

Third, guilty pleas aside, what this decision implies for

those not yet initially sentenced is clear enough; but a set of

problems remain. Some defendants were sentenced between August 3,

2010, when the FSA went into effect, and November 1, 2010, when the

new 18:1 guidelines became effective. And--especially if the

Commission decides to make its guidelines changes retroactive, see

28 U.S.C. § 994(u) (2006); Notice of Submission to Congress of

Amendments to the Sentencing Guidelines, 76 Fed. Reg. 24,960,

24,973 (May 3, 2011)--these defendants may urge that the new

guidelines and the new mandatory minimums should control.

Indeed, resentencings may occur after November 1, 2010,

from a variety of causes: from appellate remands of prior sentences

for errors unrelated to the FSA or from collateral attacks on

sentences being served or--if the Commission makes the guidelines
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changes retroactive--from district court petitions by current

prisoners for discretionary resentencing, 18 U.S.C. § 3582(c)(2);

U.S.S.G. § 1B1.10; cf. 18 U.S.C. § 3742(g) (governing

resentencings).

Although it would be convenient if we could resolve these

issues now, they are going to arise in a variety of contexts; some

may pose serious difficulties; and none of these issues has been

briefed in this case. Transition problems arise wherever one

regime applicable to a large class supersedes another. Congress

could, of course, resolve such problems through amendments to the

FSA; but if it does not, the courts will have to address them

through the usual processes.

Affirmed.