IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30852

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

SHAWNA TICKLES, also known as Shawna Tickless

Defendant - Appellant

Appeal from the United States District Court

 for the Middle District of Louisiana

No. 10-31085

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JABAR GIBSON,

Defendant - Appellant

United States Court of Appeals

Fifth Circuit

F I L E D

October 19, 2011

Lyle W. Cayce

Clerk

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Nos. 10-30852

 10-31085

Appeal from the United States District Court

 for the Eastern District of Louisiana

Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:

The court considered these cases jointly without oral argument because

they raise a single issue: whether these defendants, who were convicted inter

alia of possession with intent to distribute crack cocaine, were entitled to be

sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-

220, 124 Stat 2372, when their illegal conduct preceded the Act but their

sentencing proceedings occurred post-enactment. The issue is the retroactivity,

or partial retroactivity, of the FSA, a statute intended by Congress to “restore

fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the

previous 100:1 ratio between thresholds for sentences for crack and powder

cocaine offenses. We are one among many circuit courts that have thoroughly

vetted this issue, and we have little to add to the discussions of others. As will

be seen below, we side with those courts that have denied retroactive

application. 

The defendants in these unrelated cases, Shawna Tickles and Jabar

Gibson, were each sentenced to the statutory minimum of 120 months for

possession with intent to distribute crack cocaine. Tickles was convicted by a

jury for possession with intent to distribute 50 grams of crack cocaine and she

was sentenced to the pre-FSA statutory minimum of 120 months. Jabar Gibson

pled guilty to possession with intent to distribute five grams of crack cocaine, as

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well as other drug charges. He was sentenced to the 120 month statutory

minimum sentence for the crack cocaine offense. 

The unusual procedural posture of these cases should, however, be noted. 

In Gibson’s case, the district court had expressly refused retroactive application

of the FSA, while Tickles failed to preserve the issue and advocated plain error

in this court. During the spring of 2011, the United States sought in its

appellate briefing to uphold the sentences that each court imposed without

applying the FSA. In August, however, the United States filed in each appeal

a Supplemental Brief with Request to Remand urging the opposite result: that

each sentence be vacated and the cases remanded for re-sentencing in

accordance with the FSA. To achieve this position in Tickles’s case, the

government had to take the additional position, contrary to Tickles herself, that

the retroactivity issue had been properly preserved in the trial court. 

On the merits, the government’s Supplemental Brief had to admit the

simplicity of its original position, founded largely on the Savings Statute,

1 U.S.C. § 109, which holds that the repeal of a criminal statute does not

extinguish liability for violations of that statute unless the repealing statute so

states expressly. Because the FSA does not expressly extinguish liability

computed under the former threshold quantities for crack cocaine offenses, the

prior law should apply to all conduct that predated enactment of the FSA on

August 3, 2010. The Supplemental Brief, in contrast, adopts the reasoning of

a few courts that have applied FSA where the illegal conduct predated its

enactment but the sentencing occurred afterward. The government now reads

the “intent” of Congress as creating “a necessary implication” that the revised

statutory penalties must supersede the former penalty scheme “in all future

sentencings.” To the government, “the analysis [now] turns on much more than

the presence or absence of an express statement extinguishing incurred

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liability.” Needless to add, the appellant’s briefs, written before the

government’s supplemental briefs, generally accord with the new analysis. 

This court has been influenced, if not bound, by our prior determination

that the FSA was not retroactively applicable, despite its beneficent intentions,

to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379,

384 (5th Cir. 2011). Doggins reflected the common view of circuit courts. United

States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Brewer,

624 F.3d 900, 909 n.7 (8th Cir. 2010); United States v. Bell, 624 F.3d 803, 814-15

(7th Cir. 2010); United States v. Gomez, 621 F.3d 1343, 1346 (11th Cir. 2010)

(per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010). We

have considered carefully the opinions of circuits that have spoken more recently

to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d

195, 199-200 (3rd Cir. 2011); United States v. Rojas, 645 F.3d 1234, 1237-38

(11th Cir. 2011); United States v. Douglas, 644 F.3d 39, 42-46 (1st Cir. 2011);

United States v. Fisher, 635 F.3d 336, 339-40 (7th Cir. 2011); United States v.

Acoff, 634 F.3d 200, 202-03 (2d Cir. 2011); Unites States v. Spires, 628 F.3d 1049,

1055 (8th Cir. 2011). Having done so, we are persuaded by those that have

relied heavily on Section 109 and its application to this statute, which fails to

contain an express statement repealing the prior sentencing structure

retroactively. See Fisher, 635 F.3d at 340-41; Acoff, 634 F.3d at 202-03; Spires,

628 F.3d at 1055; see also United States v. Holcomb, No. 11-1558, 2011 WL

3795170 (7th Cir. Aug. 24, 2011) (Judge Easterbrook, denying rehearing en

banc). We conclude that the penalties prescribed by the FSA do not apply to

federal criminal sentencing for illegal conduct that preceded the FSA’s

enactment.1

As to Tickles, this court determines the standard of review for ourselves. United 1

States v. Molina-Solorio, 577 F.3d 300, 303 (5th Cir. 2009). There was no error, much less

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The sentences imposed by the district courts in each of these cases are

AFFIRMED.

plain error, in the district court’s sentencing decision. United States v. Olano, 507 U.S. 725

(1993).

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CARL E. STEWART, Circuit Judge, dissenting.

These cases present a straightforward question of statutory interpretation:

whether Congress intended that all federal cocaine offenders immediately

receive fair sentences, or whether Congress intended that a subset of federal

cocaine offenders receive unfair sentences merely on the basis of the date and

time of their underlying offenses. To conclude the latter is not only unfair, but

inconsistent with all of the congressional deliberation that preceded the final

passage of the Fair Sentencing Act. Moreover, the panel majority, and the

circuits which support its view, unduly hinder the amelioration of a chronic

injustice. For the following reasons, I dissent from the approach taken by the

majority.

The Fair Sentencing Act of 2010 has increased the amount of crack cocaine

involved in a federal drug offense that is necessary to trigger mandatory

minimum penalties under 21 U.S.C. § 841. In United States v. Doggins, 633 F.3d

379 (5th Cir. 2011), we held that the Fair Sentencing Act does not apply

retroactively to persons sentenced prior to the Act’s enactment. The issue in

these cases, which was left over from Doggins, is whether defendants whose

cocaine offenses were committed prior to the enactment of the Act, but who were

sentenced following the enactment of the Act, should receive reduced penalties

pursuant to the Fair Sentencing Act’s revisions. 

It is rare that Congress’s intent is as easily discernible as it is here. The

ameliorative purpose of the Fair Sentencing Act is reflected most obviously in its

name. Moreover, as expressed in its preamble, the Fair Sentencing Act’s explicit

purpose is “[t]o restore fairness to Federal cocaine sentencing.” Underlying this

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purpose was Congress’s determination that the prior 100:1 sentencing ratio for

crack cocaine offenses to powder cocaine offenses was fundamentally unfair. In

addition to its other provisions, the Act granted emergency authority for the

United States Sentencing Commission to revise the federal sentencing

guidelines in accordance with the Act within 90 days. 

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

halt unfair sentencing practices immediately.” United States v. Rojas, 645 F.3d

1234, 1240 (11th Cir. 2011). As expressed by the district court in United States

v. Whitfield, “[t]his court is hesitant to impose a sentence that Congress has

deemed unfair. Holding otherwise appears to this court as illogical.” No. 2:10-

CR-13, 2010 WL 5387701, at *2 (N.D. Miss. 2010). “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.” United

States v. Holcomb, No. 11-1558, 2011 WL 3795170, at *17 (7th Cir. 2011)

(Williams, J., dissenting from denial of rehearing en banc). 

In support of the conclusion that the Fair Sentencing Act should not apply

to all federal cocaine offenders sentenced after its enactment, the majority relies

on the general savings statute, 1 U.S.C. § 109. The Supreme Court, however,

has explained that the savings statute “cannot justify a disregard of the will of

Congress as manifested, either expressly or by necessary implication, in a

subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465

(1908).

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

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amendments that the new law ordained. . . . Such questionable

thinking can lead to gratuitously silly results in particular cases—

these cases, for example.

Holcomb, 2011 WL 3795170, at *19 (Posner, J., dissenting from denial of

rehearing en banc). 

The will of Congress, as expressed in the Fair Sentencing Act’s substance,

preamble, and title, will be disregarded by the courts’ continued imposition of

severe penalties which Congress has explicitly determined to be unfair. 

Accordingly, I agree with a number of our sister circuits that the provisions of

the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the

statute’s enactment, regardless of whether the underlying offense conduct

occurred prior to the Act’s enactment. See United States v. Douglas, 644 F.3d 39

(1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon,

648 F.3d 195 (3d Cir. 2011).

The majority opinion would continue to impose disproportionately harsh

sentences of imprisonment on many crack cocaine offenders, despite Congress’s

clear and obvious determination that such penalties are unfair. For this reason,

I respectfully dissent.

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