United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3737

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the 

* District of Nebraska.

Larita Duncan, * 

* [UNPUBLISHED]

Appellant. *

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Submitted: October 17, 2011

 Filed: December 12, 2011

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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PER CURIAM.

Larita Duncan pleaded guilty to possessing five or more grams of crack

cocaine, in violation of 21 U.S.C. § 844(a). On November 22, 2010, the district

court sentenced Duncan to 60 months’ imprisonment, the applicable mandatory 1

minimum for offenses involving more than five grams of cocaine at the time Duncan

committed the offense, declining her request to apply the Fair Sentencing Act of 2010

(“FSA”) retroactively. On appeal, Duncan argues the district court erred in

concluding the FSA, which eliminated the five-year minimum sentence for offenses

The Honorable Laurie Smith Camp, United States District Judge for the

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District of Nebraska.
involving more than five grams of cocaine, does not apply retroactively to her. We

affirm.

Our precedent forecloses Duncan’s argument the FSA applies retroactively.

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See, e.g., United States v. Sidney, 648 F.3d 904, 906 (8th Cir. 2011) (“[T]he Fair

Sentencing Act contains no express statement that it is retroactive, and thus the

general savings statute, 1 U.S.C. § 109, requires us to apply the penalties in place at

the time the crime was committed.”) (quoting United States v. Brewer, 624 F.3d 900,

909 n.7 (8th Cir. 2010)) (internal quotation marks and citation omitted); United

States v. Spires, 628 F.3d 1049, 1055 (8th Cir. 2011) (holding the Fair Sentencing

Act is not retroactive and the defendant is subject to the penalties in place at the time

he committed the crime); United States v. Finch, 630 F.3d 1057, 1063 (8th Cir. 2011)

(same). Relying on United States v. Douglas, 746 F. Supp. 2d 220 (D.Me. 2010),

Duncan argues, however, the district court’s failure to apply the FSA retroactively is

contrary toCongressional intent. As we recently acknowledged in Sidney, the district

court in Douglas, which has now been affirmed by the First Circuit, United States v.

Douglas, 644 F.3d 39 (1st Cir. 2011), held the necessary and fair implication of the

FSA is Congress intended the new mandatory minimums to apply to all defendants

sentenced after the enactment of the Act. Sidney, 648 F.3d at 907-08. We rejected 3

this reasoning in Sidney, explaining: “In the end, the fact remains that Congress

could easily have included a single sentence in the FSA to give it retroactive effect,

We note the Supreme Court recently granted certiorari on the issue of the

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retroactive application of the FSA in two cases, consolidated for one hour of oral

argument: Hill v. United States, 417 F. App’x 560 (7th Cir. 2011), cert. granted, ---

S.Ct. ---, 2011 WL 3472365 (U.S. Nov. 28, 2011) (No. 11-5721), and United States

v. Fisher, 635 F.3d 336 (7th Cir. 2011), cert. granted sub nom Dorsey v. United

States, --- S.Ct. ---, 2011 WL 3422126 (U.S. Nov. 28, 2011) (No. 11-5683). 

President Barack Obama signed the FSA into law on August 3, 2010,

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surrounded by bipartisan Congressional leaders and the Attorney General. Pub. L.

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

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but for whatever reason, it did not do so. It is beyond the province of this Court to

do so now.” Id. at 908; see also United States v. Orr, 636 F.3d 944, 958 (8th Cir.

2011) (“Thus, as we have previously recognized, Congress expressed no desire in the

FSA that the law be applied retroactively, and consequently the federal Savings

Statute clearly forecloses [defendant’s] argument for retroactive application.”).

Accordingly, we affirm the district court’s judgment.

BYE, Circuit Judge, concurring in the judgment.

Because I am bound by Circuit precedent, see United States v. Brewer, 624

F.3d 900, 909 n.7 (8th Cir. 2010), I reluctantly concur in the judgment. I write

separately to express my disagreement with this Court’s conclusion in Brewer the

absence of an express statement of retroactivity in the FSA precludes its retroactive

application to defendants sentenced after its enactment. Currently, the circuits are

split on thisissue. Compare United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011)

(holding the FSA requires application of the new mandatory minimums to all

defendants sentenced after the enactment of the Act, irrespective of when the offense

conduct occurred); United States v. Douglas, 644 F.3d 39, 44 (1st Cir. 2011) (same);

and United States v. Rojas, 645 F.3d 1234, 1240 (11th Cir. 2011) (same), rehearing

en banc granted and opinion vacated, -- F.3d --, 2011 WL 4552364 (11th Cir. Oct. 4,

2011) with United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011) (concluding

the absence of an express statement of retroactivity bars the retroactive application

of the FSA); United States v. Acoff, 634 F.3d 200, 201-02 (2d Cir. 2011) (per curiam)

(same); United States v. Edwards, 2011 WL 3419617, at *5 (6th Cir. 2011) (slip

copy) (same). The Ninth Circuit has not yet spoken on this precise issue, see United

States v. Baptist, 646 F.3d 1225, 1227-28 (9th Cir. 2011) (per curiam) (holding the

FSA does not apply retroactively to defendants whose conduct and sentencing

occurred prior to the enactment of the Act) (emphasis added), and the Fourth Circuit

has declined to address it, see United States v. Jones, 2011WL 4098028, at *1 (4th

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Cir. 2011) (slip copy) (expressing no view on the FSA’s retroactive applicability to

defendants whose offenses were committed before the law’s enactment but who were

sentenced after the FSA’s passage). I agree with the circuit courts holding the fair

and necessary implication of the FSA is Congress intended the new mandatory

minimums to apply to all sentences after the Act’s enactment. See, e.g., Dixon, 648

F.3d at 203.

In Brewer, this Court held “the Fair Sentencing Act contains no express

statement that is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109,

requires us to apply the penalties in place at the time the crime was committed.” 624

F.3d at 909 n.7. But the Supreme Court’s interpretation of the savings statute is not

as narrow as Brewer makes it to be. The Supreme Court has held 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) (emphasis added). Thus, the savings statute “must

be enforced unless, either by express declaration or necessary implication, arising

from the terms of the law as a whole, it results that the legislative mind will be set at

naught by giving effect to the provisions of [the statute].” Id.; see also Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 659 n. 10 (1974) (stating “only if

[the statute at issue] can be said by fair implication or expressly to conflict with [the

savings statute] would there be reason to hold [the statute at issue] superseded [the

savings statute]”) (emphasis added). I join in the reasoning of those circuit courts

which have concluded, notwithstanding the absence of an express statement of

retroactivity, the necessary, fair, and only implication of the FSA is Congress

intended for the new mandatory minimums to apply to all defendants sentenced after

the enactment of the Act. See, e.g., Dixon, 648 F.3d at 200-03; Douglas, 644 F.3d at

43-46; see also United States v. Holcomb, -- F.3d --, 2011 WL 3795170, at *10-18

(7th Cir. 2011) (Williams, J., dissenting from denial of rehearing en banc).

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As stated in its Preamble, Congress passed the FSA to “restore fairness” to

federal cocaine sentencing. It sought to do so by establishing new mandatory

minimums and expecting sentencing courts to begin applying these new mandatory

minimums immediately. To hold otherwise, begs the question others have asked

before me: “[W]hy would Congress want sentencing judges to continue to impose

sentences that it had already declared to be unfair?” Holcomb, 2011 WL 3795170,

at * 13 (Williams, J., dissenting) (emphasis in original); see also United States v.

Douglas, 746 F. Supp. 2d 220, 229 (D.Me. 2010). I cannot find an appropriate

answer to this question in our Circuit precedent. Despite being bound by precedent,

I cannot agree the absence of an express statement of retroactivity in the FSA means

Congress intended for sentencing judges to continue to impose unfair sentences even

after the passage of the Act, for such a practice undoubtedly produces an absurd

result. Therefore, I reluctantly concur in the judgment.

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