Monday, July 18, 2011

All Sorts of Good News: Crack Memo from DOJ

On the heels of last week's good news (see Laura's post below), this week gives us an auspicious turn of the tide from DOJ.

On July 15, 2011, Attorney General Eric Holder issued a memo saying he concludes "that the law requires the application of the [Fair Sentencing] Act's new mandatory minimum sentencing provisions to all sentencings that occur after August 3, 2010, regardless of when the offense conduct took place." He directs prosecutors "to act consistently with these legal principles."

Professor Berman has blogged the issue and provides a link to the memo at:

Nice development on the FSA front. So, the Rojas, No. 10--14662 (11th Cir. July 6, 2011) (to be published), decision in the 11th Circuit should be safe! (A great FSA appellate win: FSA applies to defendant's sentenced after FSA enacted, regardless of offense date.)

I'll post more this week after I review the Court's decisions....


John Minock said...

Ah, but what about the circuits which have gone the other way, like CA7 in Fisher, and others like CA2 and CA6 (Carradine) where there has been strong dictum against retroactivity?

Clare Freeman, RWS, WD Mich said...

That's what we've got to work out. There's a tiny rumor that the gov may seek en banc review in the 7th Cir. (the rumor is based on a filing in another case) or seek S Ct review.

Just a rumor! Let's hope.

Clare Freeman, RWS, WD Mich said...

The gov filed a letter in US v. McCray, No. 11-3249 (6th Cir. July 20, 2011), saying:

"In its brief, the United States argued that the district court had not erred. Upon further consideration of the proper interpretation of the Fair Sentencing Act, however, the United
States is now of the view that the Act’s revised penalties apply to any defendant sentenced on or after the enactment date, August 3,
2010—including McCray."

Gov acknowledges Carradine, but says it is distinguishable.