Tag Archives: Fair Sentencing Act

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants.  It’s like a hat trick for criminal defense and criminal appeals lawyers!

In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody.  Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA).  In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority.  See Millbrook, 11-20362, slip op., pg. 6.  Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability.  See id.

In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine).  On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative.  On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again.  In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand.  Too bad Hinds had to appeal twice to get the benefit of the FSA.

Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.

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

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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.