United States Court of Appeals for the Eleventh Circuit to Rehear Cases Relating to the Fair Sentencing Act en Banc

In an important move, the United States Court of Appeals for the Eleventh Circuit issued two Orders on October 4, 2011, indicating that it will rehear two federal drug cases, United States v. Carmelina Vera Rojas, No. 10-14662, and United States v. Charles Levern Hudson, No. 10-14428, en banc.

The cases concern the application of the Fair Sentencing Act to federal drug offenses.  In the original Rojas opinion, found at 645 F.3d 1234 (11th Cir. 2011), the Eleventh Circuit held that the Fair Sentencing Act of 2010 (“FSA”), PL111-220, applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  In the original Hudson opinion, the Court reaffirmed its holding that the FSA does not apply retroactively to offenses that were committed before the effective date of the Act.

United States Attorney General Eric Holder has reportedly flip-flopped on his position regarding application of the FSA.  At one time, he had instructed Federal prosecutors to argue that the revised FSA’s minimum mandatory sentences, which had been designed to alleviate sentencing disparity between offenses relating to crack and powder cocaine, was not applicable to defendants’ cases if they committed their offenses before the day the law went into effect, August 3, 2010, even if they had not yet been sentenced.   Then, in July of 2011, Holder issued a statement indicating that the FSA should be applied to all sentencings that occured on or after August 3, 2010, regardless of when the criminal episode took place.

Caught in the middle of this flip-flop are Carmelina Vera Rojas and Charles Levern Hudson.  As noted in the original opinion, 645 F.3d 1234, Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base (crack cocaine), and two counts of distributing 5 grams or more of cocaine base (crack cocaine).  Her case was reportedly set for sentencing on the day that the FSA was signed, but the District Court ordered legal briefing on whether the FSA would apply to her case.  Ultimately,  the District Court agreed with the prosecutors that the FSA did not apply, and sentenced her to 10 years in prison.  Had the District Court applied the FSA, Rojas could have been sentenced to 5 years.  As for Hudson, the Eleventh Circuit affirmed his sentence, which was based on the higher statutory mandatory minimums that were in effect in 2007, rather than the lower sentences under the FSA.  In short, neither Rojas nor Hudson were permitted to enjoy the benefits that the FSA was intended to give.

One final note: after the Rojas opinion originally appeared on the Eleventh Circuit website, it strangely disappeared, then reappeared again.  If you have time and want to read about the disappearance of reappearance of the opinion on the Eleventh Circuit site, click here.

Florida criminal defense attorneys who handle drug cases in Federal court will have to keep a close eye on these cases.