LAW FOR ALL : Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-yearmandatory minimum prison terms for federal drug crimes reflected a100-to-1 disparity between the amounts of crack cocaine and powdercocaine needed to trigger the minimums. Thus, the 5-year minimumwas triggered by a conviction for possessing with intent to distribute5 grams of crack cocaine but 500 grams of powder, and the 10-yearminimum was triggered by a conviction for possessing with intent todistribute 50 grams of crack but 5,000 grams of powder. The United States Sentencing Commission—which is charged under the Sentencing Reform Act of 1984 with writing the Federal Sentencing Guidelines—incorporated the 1986 Drug Act’s 100-to-1 disparity into theGuidelines because it believed that doing so was the best way to keepsimilar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic proportionality objective. The Fair Sentencing Act, which took effect on August 3, 2010, reduced the disparity to 18-to-1, lowering the mandatory minimums applicable to many crack offenders, by increasing the amount of crack needed to trigger the 5-year minimum from 5 to 28 grams and the amount forthe 10-year minimum from 50 to 280 grams, while leaving the powder cocaine amounts intact. It also directed the Sentencing Commission to make conforming amendments to the Guidelines “as soon aspracticable” (but no later than 90 days after the Fair Sentencing Act’s effective date). The new amendments became effective on November 1, 2010. In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in —————— *Together with No. 11–5721, Hill v. United States, also on certiorari to the same court. 2 DORSEY v. UNITED STATES Syllabus 2007, but was not sentenced until December 2010. Sentencing him to the 10-year minimum mandated by the 1986 Drug Act, the DistrictJudge ruled that the Fair Sentencing Act’s 5-year minimum for selling that amount of crack did not apply to those whose offenses werecommitted before the Act’s effective date. In No. 11−5683, petitioner Dorsey unlawfully sold 5.5 grams of crack in 2008. In September2010, the District Judge sentenced him to the 1986 Drug Act’s 10year minimum, finding that it applied because Dorsey had a priordrug conviction and declining to apply the Fair Sentencing Act, under which there would be no mandated minimum term for an amount less than 28 grams, because Dorsey’s offense predated that Act’s effective date. The Seventh Circuit affirmed in both cases. Held: The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. Pp. 10−20. (a) Language in different statutes argues in opposite directions.The general federal saving statute (1871 Act) provides that a new criminal statute that “repeal[s]” an older criminal statute shall notchange the penalties “incurred” under that older statute “unless therepealing Act shall so expressly provide.” 1 U. S. C. §109. The word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth, see Warden v. Marrero, 417 U. S. 653, 659−664, and penalties are “incurred” under the older statute whenan offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable, see United States v. Reisinger, 128 U. S. 398, 401. In contrast, the Sentencing Reform Actsays that, regardless of when the offender’s conduct occurs, the applicable sentencing guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii). Six considerations, taken together, show that Congress intendedthe Fair Sentencing Act’s more lenient penalties to apply to offenderswho committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts,before interpreting a new criminal statute to apply its new penaltiesto a set of pre-Act offenders, to assure themselves by the “plain import” or “fair implication” of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the SenCite as: 567 U. S. ____ (2012) 3 Syllabus tencing Reform Act sets forth a special and different background principle in §3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply tooffenders who committed an offense before the adoption of theamendments but are sentenced thereafter. Third, language in theFair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act’s special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgateconforming amendments to the Guidelines that “achieve consistencywith other guideline provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatoryminimums. And consistency with “other guideline provisions” andwith prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments’ effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Act’s old mandatory minimumsto the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve adisproportionate status quo; it would make matters worse by creating new anomalies―new sets of disproportionate sentences―not previously present. That is because sentencing courts must apply the newGuidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, and the 1986 Drug Act’s old minimumswould trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress’ basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations thatwould make a critical difference. Pp. 10−19. (b) The new Act’s lower minimums also apply to those who committed an offense prior to August 3 and were sentenced between thatdate and November 1, 2010, the effective date of the new Guidelines. The Act simply instructs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Acttook effect), and thus as far as Congress was concerned, the Commission might have promulgated those Guidelines to be effective as earlyas August 3. In any event, courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums. Finally, applying the new minimums to all who are sentenced after August 3 makes it possible to foresee a reasonably smooth tran4 DORSEY v. UNITED STATES Syllabus sition, and this Court has no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. Pp. 19−20. No. 11−5683, 635 F. 3d 336, and No. 11−5721, 417 Fed. Appx. 560, vacated and remanded. BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.

Tuesday, June 26, 2012

Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-yearmandatory minimum prison terms for federal drug crimes reflected a100-to-1 disparity between the amounts of crack cocaine and powdercocaine needed to trigger the minimums. Thus, the 5-year minimumwas triggered by a conviction for possessing with intent to distribute5 grams of crack cocaine but 500 grams of powder, and the 10-yearminimum was triggered by a conviction for possessing with intent todistribute 50 grams of crack but 5,000 grams of powder. The United States Sentencing Commission—which is charged under the Sentencing Reform Act of 1984 with writing the Federal Sentencing Guidelines—incorporated the 1986 Drug Act’s 100-to-1 disparity into theGuidelines because it believed that doing so was the best way to keepsimilar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic proportionality objective. The Fair Sentencing Act, which took effect on August 3, 2010, reduced the disparity to 18-to-1, lowering the mandatory minimums applicable to many crack offenders, by increasing the amount of crack needed to trigger the 5-year minimum from 5 to 28 grams and the amount forthe 10-year minimum from 50 to 280 grams, while leaving the powder cocaine amounts intact. It also directed the Sentencing Commission to make conforming amendments to the Guidelines “as soon aspracticable” (but no later than 90 days after the Fair Sentencing Act’s effective date). The new amendments became effective on November 1, 2010. In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in —————— *Together with No. 11–5721, Hill v. United States, also on certiorari to the same court. 2 DORSEY v. UNITED STATES Syllabus 2007, but was not sentenced until December 2010. Sentencing him to the 10-year minimum mandated by the 1986 Drug Act, the DistrictJudge ruled that the Fair Sentencing Act’s 5-year minimum for selling that amount of crack did not apply to those whose offenses werecommitted before the Act’s effective date. In No. 11−5683, petitioner Dorsey unlawfully sold 5.5 grams of crack in 2008. In September2010, the District Judge sentenced him to the 1986 Drug Act’s 10year minimum, finding that it applied because Dorsey had a priordrug conviction and declining to apply the Fair Sentencing Act, under which there would be no mandated minimum term for an amount less than 28 grams, because Dorsey’s offense predated that Act’s effective date. The Seventh Circuit affirmed in both cases. Held: The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. Pp. 10−20. (a) Language in different statutes argues in opposite directions.The general federal saving statute (1871 Act) provides that a new criminal statute that “repeal[s]” an older criminal statute shall notchange the penalties “incurred” under that older statute “unless therepealing Act shall so expressly provide.” 1 U. S. C. §109. The word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth, see Warden v. Marrero, 417 U. S. 653, 659−664, and penalties are “incurred” under the older statute whenan offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable, see United States v. Reisinger, 128 U. S. 398, 401. In contrast, the Sentencing Reform Actsays that, regardless of when the offender’s conduct occurs, the applicable sentencing guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii). Six considerations, taken together, show that Congress intendedthe Fair Sentencing Act’s more lenient penalties to apply to offenderswho committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts,before interpreting a new criminal statute to apply its new penaltiesto a set of pre-Act offenders, to assure themselves by the “plain import” or “fair implication” of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the SenCite as: 567 U. S. ____ (2012) 3 Syllabus tencing Reform Act sets forth a special and different background principle in §3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply tooffenders who committed an offense before the adoption of theamendments but are sentenced thereafter. Third, language in theFair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act’s special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgateconforming amendments to the Guidelines that “achieve consistencywith other guideline provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatoryminimums. And consistency with “other guideline provisions” andwith prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments’ effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Act’s old mandatory minimumsto the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve adisproportionate status quo; it would make matters worse by creating new anomalies―new sets of disproportionate sentences―not previously present. That is because sentencing courts must apply the newGuidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, and the 1986 Drug Act’s old minimumswould trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress’ basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations thatwould make a critical difference. Pp. 10−19. (b) The new Act’s lower minimums also apply to those who committed an offense prior to August 3 and were sentenced between thatdate and November 1, 2010, the effective date of the new Guidelines. The Act simply instructs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Acttook effect), and thus as far as Congress was concerned, the Commission might have promulgated those Guidelines to be effective as earlyas August 3. In any event, courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums. Finally, applying the new minimums to all who are sentenced after August 3 makes it possible to foresee a reasonably smooth tran4 DORSEY v. UNITED STATES Syllabus sition, and this Court has no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. Pp. 19−20. No. 11−5683, 635 F. 3d 336, and No. 11−5721, 417 Fed. Appx. 560, vacated and remanded. BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.

1
(Slip Opinion) OCTOBER TERM, 2011
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DORSEY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 11–5683. Argued April 17, 2012—Decided June 21, 2012*
Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-yearmandatory minimum prison terms for federal drug crimes reflected a100-to-1 disparity between the amounts of crack cocaine and powdercocaine needed to trigger the minimums. Thus, the 5-year minimumwas triggered by a conviction for possessing with intent to distribute5 grams of crack cocaine but 500 grams of powder, and the 10-yearminimum was triggered by a conviction for possessing with intent todistribute 50 grams of crack but 5,000 grams of powder. The United States Sentencing Commission—which is charged under the Sentencing Reform Act of 1984 with writing the Federal Sentencing Guidelines—incorporated the 1986 Drug Act’s 100-to-1 disparity into theGuidelines because it believed that doing so was the best way to keepsimilar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic proportionality objective. The Fair Sentencing Act, which took effect on August 3, 2010, reduced the disparity to 18-to-1, lowering the mandatory minimums applicable to many crack offenders, by increasing the amount of crack needed to trigger the 5-year minimum from 5 to 28 grams and the amount forthe 10-year minimum from 50 to 280 grams, while leaving the powder cocaine amounts intact. It also directed the Sentencing Commission to make conforming amendments to the Guidelines “as soon aspracticable” (but no later than 90 days after the Fair Sentencing Act’s effective date). The new amendments became effective on November 1, 2010. In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in
—————— *Together with No. 11–5721, Hill v. United States, also on certiorari to the same court.
2 DORSEY v. UNITED STATES
Syllabus
2007, but was not sentenced until December 2010. Sentencing him to the 10-year minimum mandated by the 1986 Drug Act, the DistrictJudge ruled that the Fair Sentencing Act’s 5-year minimum for selling that amount of crack did not apply to those whose offenses werecommitted before the Act’s effective date. In No. 11−5683, petitioner Dorsey unlawfully sold 5.5 grams of crack in 2008. In September2010, the District Judge sentenced him to the 1986 Drug Act’s 10year minimum, finding that it applied because Dorsey had a priordrug conviction and declining to apply the Fair Sentencing Act, under which there would be no mandated minimum term for an amount less than 28 grams, because Dorsey’s offense predated that Act’s effective date. The Seventh Circuit affirmed in both cases.
Held: The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. Pp. 10−20.
(a) Language in different statutes argues in opposite directions.The general federal saving statute (1871 Act) provides that a new criminal statute that “repeal[s]” an older criminal statute shall notchange the penalties “incurred” under that older statute “unless therepealing Act shall so expressly provide.” 1 U. S. C. §109. The word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth, see Warden v. Marrero, 417 U. S. 653, 659−664, and penalties are “incurred” under the older statute whenan offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable, see United States v. Reisinger, 128 U. S. 398, 401. In contrast, the Sentencing Reform Actsays that, regardless of when the offender’s conduct occurs, the applicable sentencing guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
Six considerations, taken together, show that Congress intendedthe Fair Sentencing Act’s more lenient penalties to apply to offenderswho committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts,before interpreting a new criminal statute to apply its new penaltiesto a set of pre-Act offenders, to assure themselves by the “plain import” or “fair implication” of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the SenCite
as: 567 U. S. ____ (2012) 3
Syllabus
tencing Reform Act sets forth a special and different background principle in §3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply tooffenders who committed an offense before the adoption of theamendments but are sentenced thereafter. Third, language in theFair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act’s special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgateconforming amendments to the Guidelines that “achieve consistencywith other guideline provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatoryminimums. And consistency with “other guideline provisions” andwith prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments’ effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Act’s old mandatory minimumsto the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve adisproportionate status quo; it would make matters worse by creating new anomalies―new sets of disproportionate sentences―not previously present. That is because sentencing courts must apply the newGuidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, and the 1986 Drug Act’s old minimumswould trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress’ basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations thatwould make a critical difference. Pp. 10−19.
(b) The new Act’s lower minimums also apply to those who committed an offense prior to August 3 and were sentenced between thatdate and November 1, 2010, the effective date of the new Guidelines. The Act simply instructs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Acttook effect), and thus as far as Congress was concerned, the Commission might have promulgated those Guidelines to be effective as earlyas August 3. In any event, courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums. Finally, applying the new minimums to all who are sentenced after August 3 makes it possible to foresee a reasonably smooth tran4
DORSEY v. UNITED STATES
Syllabus
sition, and this Court has no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. Pp. 19−20.
No. 11−5683, 635 F. 3d 336, and No. 11−5721, 417 Fed. Appx. 560, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 11–5683 and 11–5721
EDWARD DORSEY, SR., PETITIONER 11–5683 v. UNITED STATES
COREY A. HILL, PETITIONER 11–5721 v. UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2012]
JUSTICE BREYER delivered the opinion of the Court.
Federal statutes impose mandatory minimum prisonsentences upon those convicted of federal drug crimes.These statutes typically base the length of a minimumprison term upon the kind and amount of the drug involved. Until 2010, the relevant statute imposed upon anoffender who dealt in powder cocaine the same sentence itimposed upon an offender who dealt in one one-hundredththat amount of crack cocaine. It imposed, for example, thesame 5-year minimum term upon (1) an offender convictedof possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack.
In 2010, Congress enacted a new statute reducing thecrack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124 Stat. 2372. The new statute took
2 DORSEY v. UNITED STATES
Opinion of the Court
effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3,2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimumprovisions do apply to those pre-Act offenders.
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act’s language, structure, and basic objectives. Did Congressintend the Act’s more lenient penalties to apply to pre-Actoffenders sentenced after the Act took effect? We recognize that, because of important backgroundprinciples of interpretation, we must assume that Congress did not intend those penalties to apply unless it clearly indicated to the contrary. See infra, at 10–13. But we find that clear indication here. We rest our conclu- sion primarily upon the fact that a contrary determinationwould seriously undermine basic Federal SentencingGuidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniformand more disproportionate than if Congress had not enacted the Fair Sentencing Act at all. See infra, at 14–18. Because our conclusion rests upon an analysis of theGuidelines-based sentencing system Congress has established, we describe that system at the outset and include an explanation of how the Guidelines interact with federal statutes setting forth specific terms of imprisonment.
A The Guidelines originate in the Sentencing Reform Actof 1984, 98 Stat. 1987. That statute created a federal Sentencing Commission instructed to write guidelines that
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
judges would use to determine sentences imposed upon offenders convicted of committing federal crimes. 28
U. S. C. §§991, 994. Congress thereby sought to increase transparency, uniformity, and proportionality in sentencing. United States Sentencing Commission (USSC or Commission), Guidelines Manual §1A1.3, p. 2 (Nov. 2011) (USSG); see 28 U. S. C. §§991(b)(1), 994(f).
The Sentencing Reform Act directed the Commission tocreate in the Guidelines categories of offense behavior(e.g., “‘bank robbery/committed with a gun/$2500 taken’”) and offender characteristics (e.g., “one prior conviction”). USSG §1A1.2, at 1; see 28 U. S. C. §§994(a)–(e). A sentencing judge determines a Guidelines range by (1) finding the applicable offense level and offender category and then
(2)
consulting a table that lists proportionate sentenc- ing ranges (e.g., 18 to 24 months of imprisonment) at the intersections of rows (marking offense levels) and columns (marking offender categories). USSG ch. 5, pt. A, Sentencing Table, §§5E1.2, 7B1.4; see also §1A1.4(h), at 11. The Guidelines, after telling the judge how to determine the applicable offense level and offender category, instruct thejudge to apply the intersection’s range in an ordinary case, but they leave the judge free to depart from that range inan unusual case. See 18 U. S. C. §3553(b); USSG §§1A1.2,at 1–2, 1A1.4(b), at 6–7. This Court has held that the Guidelines are now advisory. United States v. Booker, 543
U.
S. 220, 245, 264 (2005); see Kimbrough v. United States, 552 U. S. 85, 91 (2007).
The Guidelines determine most drug-crime offense levels in a special way. They set forth a Drug Quantity Table (or Table) that lists amounts of various drugs and associates different amounts with different “Base Offense Levels” (to which a judge may add or subtract levels depending upon the “specific” characteristics of the offender’sbehavior). See USSG §2D1.1. The Table, for example,associates 400 to 499 grams of powder cocaine with a base
4 DORSEY v. UNITED STATES
Opinion of the Court
offense level of 24, a level that would mean for a first-time offender a prison term of 51 to 63 months. §2D1.1(c).
In 1986, Congress enacted a more specific, drug-relatedsentencing statute, the Anti-Drug Abuse Act (1986 DrugAct), 100 Stat. 3207. That statute sets forth mandatoryminimum penalties of 5 and 10 years applicable to a drugoffender depending primarily upon the kind and amount of drugs involved in the offense. See 21 U. S. C. §§841(b)(1) (A)–(C) (2006 ed. and Supp. IV). The minimum applicable to an offender convicted of possessing with intent to distribute 500 grams or more of powder cocaine is 5 years,and for 5,000 grams or more of powder the minimum is 10 years. §§841(b)(1)(A)(ii), (B)(ii). The 1986 Drug Act,however, treated crack cocaine crimes as far more serious. It applied its 5-year minimum to an offender convicted ofpossessing with intent to distribute only 5 grams of crack (as compared to 500 grams of powder) and its 10-yearminimum to one convicted of possessing with intent todistribute only 50 grams of crack (as compared to 5,000 grams of powder), thus producing a 100-to-1 crack-topowder ratio. §§841(b)(1)(A)(iii), (B)(iii) (2006 ed.).
The 1986 Drug Act, like other federal sentencing statutes, interacts with the Guidelines in an important way.Like other sentencing statutes, it trumps the Guidelines. Thus, ordinarily no matter what the Guidelines provide, a judge cannot sentence an offender to a sentence beyondthe maximum contained in the federal statute settingforth the crime of conviction. Similarly, ordinarily no matter what range the Guidelines set forth, a sentencingjudge must sentence an offender to at least the minimum prison term set forth in a statutory mandatory minimum.See 28 U. S. C. §§994(a), (b)(1); USSG §5G1.1; Neal v. United States, 516 U. S. 284, 289–290, 295 (1996).
Not surprisingly, the Sentencing Commission incorporated the 1986 Drug Act’s mandatory minimums into the first version of the Guidelines themselves. Kimbrough,
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
supra, at 96–97. It did so by setting a base offense level for a first-time drug offender that corresponded to thelowest Guidelines range above the applicable mandatory minimum. USSC, Report to the Congress: MandatoryMinimum Penalties in the Federal Criminal Justice System 53–54 (Oct. 2011) (2011 Report). Thus, the first Guidelines Drug Quantity Table associated 500 grams of powder cocaine with an offense level of 26, which for a first-time offender meant a sentencing range of 63 to 78months (just above the 5-year minimum), and it associated5,000 grams of powder cocaine with an offense level of 32,which for a first-time offender meant a sentencing rangeof 121 to 151 months (just above the 10-year minimum). USSG §2D1.1 (Oct. 1987). Further reflecting the 1986Drug Act’s 100-to-1 crack-to-powder ratio, the Table associated an offense level of 26 with 5 grams of crack and anoffense level of 32 with 50 grams of crack. Ibid.
In addition, the Drug Quantity Table set offense levels for small drug amounts that did not trigger the 1986 DrugAct’s mandatory minimums so that the resulting Guidelines sentences would remain proportionate to the sentences for amounts that did trigger these minimums. 2011 Report 54. Thus, the Table associated 400 grams of powder cocaine (an amount that fell just below the amount triggering the 1986 Drug Act’s 5-year minimum) with anoffense level of 24, which for a first-time offender meant a sentencing range of 51 to 63 months (the range just below the 5-year minimum). USSG §2D1.1 (Oct. 1987). Following the 100-to-1 crack-to-powder ratio, the Table associatedfour grams of crack (an amount that also fell just below the amount triggering the 1986 Drug Act’s 5-year minimum) with an offense level of 24. Ibid.
The Commission did this not because it necessarily thought that those levels were most in keeping with pastsentencing practice or would independently have reflecteda fair set of sentences, but rather because the Commission
6 DORSEY v. UNITED STATES
Opinion of the Court
believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfyingthe Sentencing Reform Act’s basic “proportionality” objective. See Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov. 2011); 2011 Report 53–54, 349, and n. 845. For this reason, the Commission derived the Drug Quantity Table’sentire set of crack and powder cocaine offense levels byusing the 1986 Drug Act’s two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set proportional offense levels for other drug amounts. Ibid.
B During the next two decades, the Commission andothers in the law enforcement community strongly criticized Congress’ decision to set the crack-to-powder mandatory minimum ratio at 100-to-1. The Commission issued four separate reports telling Congress that the ratio wastoo high and unjustified because, for example, researchshowed the relative harm between crack and powdercocaine less severe than 100-to-1, because sentences embodying that ratio could not achieve the Sentencing Reform Act’s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality”goal of treating different offenders (e.g., major drug traffickers and low-level dealers) differently, and because the public had come to understand sentences embodying the100-to-1 ratio as reflecting unjustified race-based differences. Kimbrough, supra, at 97–98; see, e.g., USSC, Special Report to the Congress: Cocaine and Federal Sentencing Policy 197–198 (Feb. 1995) (1995 Report); USSC, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 91, 103(May 2002) (2002 Report); USSC, Report to Congress:Cocaine and Federal Sentencing Policy 8 (May 2007) (2007
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
Report). The Commission also asked Congress for new legislation embodying a lower crack-to-powder ratio. 1995 Report 198–200; 1997 Report 9–10; 2002 Report 103–107; 2007 Report 6–9. And the Commission recommended that the legislation “include” an “emergency amendment”allowing “the Commission to incorporate the statutory changes” in the Guidelines while “minimiz[ing] the lag between any statutory and guideline modifications for cocaine offenders.” Id., at 9.
In 2010, Congress accepted the Commission’s recommendations, see 2002 Report 104; 2007 Report 8–9, and
n. 26, and enacted the Fair Sentencing Act into law. The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum(while leaving powder at 500 grams and 5,000 grams respectively). §2(a), 124 Stat. 2372. The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18to-1. (The Act also eliminated the 5-year mandatory minimum for simple possession of crack. §3, 124 Stat.2372.)
Further, the Fair Sentencing Act instructed the Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” §8(2), id., at 2374. And it directed the Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days” after the new Act took effect. §8(1), ibid.
The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on November 1, 2010. 75 Fed. Reg. 66188 (2010). A permanentversion of those Guidelines amendments took effect on
8 DORSEY v. UNITED STATES
Opinion of the Court
November 1, 2011. See 76 id., at 24960 (2011).
C With this background in mind, we turn to the relevant facts of the cases before us. Corey Hill, one of the petitioners, unlawfully sold 53 grams of crack in March 2007,before the Fair Sentencing Act became law. App. in No. 11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986 Drug Act, an offender who sold 53 grams of crack wassubject to a 10-year mandatory minimum. 21 U. S. C. §841(b)(1)(A)(iii) (2006 ed.). Hill was not sentenced, however, until December 2010, after the Fair Sentencing Act became law and after the new Guidelines amendments had become effective. Hill App. 83–94. Under the Fair Sentencing Act, an offender who sold 53 grams ofcrack was subject to a 5-year, not a 10-year, minimum. §841(b)(1)(B)(iii) (2006 ed., Supp. IV). The sentencing judge stated that, if he thought that the Fair SentencingAct applied, he would have sentenced Hill to that Act’s 5year minimum. Id., at 69. But he concluded that the Fair Sentencing Act’s lower minimums apply only to those who committed a drug crime after August 3, 2010—the Act’seffective date. Id., at 65, 68. That is to say, he concluded that the new Act’s more lenient sentences did not apply to those who committed a crime before August 3, even ifthey were sentenced after that date. Hence, the judge sentenced Hill to 10 years of imprisonment. Id., at 78. The Court of Appeals for the Seventh Circuit affirmed. 417 Fed. Appx. 560 (2011). The second petitioner, Edward Dorsey (who had previously been convicted of a drug felony), unlawfully sold 5.5 grams of crack in August 2008, before the Fair Sentencing Act took effect. App. in No. 5683, pp. 9, 48–49, 57–58 (hereinafter Dorsey App.). Under the 1986 Drug Act, anoffender such as Dorsey with a prior drug felony who sold
5.5 grams of crack was subject to a 10-year minimum.
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
§841(b)(1)(B)(iii) (2006 ed.). Dorsey was not sentenced,however, until September 2010, after the new Fair Sentencing Act took effect. Id., at 84–95. Under the Fair Sentencing Act, such an offender who sold 5.5 grams of crack was not subject to a mandatory minimum at all, for
5.5 grams is less than the 28 grams that triggers the new Act’s mandatory minimum provisions. §841(b)(1)(B)(iii) (2006 ed., Supp. IV). Dorsey asked the judge to apply theFair Sentencing Act’s more lenient statutory penalties. Id., at 54–55.
Moreover, as of Dorsey’s sentencing in September 2010, the unrevised Guidelines (reflecting the 1986 Drug Act’s old minimums) were still in effect. The Commission had not yet finished revising the Guidelines to reflect the new, lower statutory minimums. And the basic sentencingstatute, the Sentencing Reform Act, provides that a judge shall apply the Guidelines that “are in effect on the datethe defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
The sentencing judge, however, had the legal authority not to apply the Guidelines at all (for they are advisory).But he also knew that he could not ignore a minimum sentence contained in the applicable statute. Dorsey App.67–68. The judge noted that, even though he was sentencing Dorsey after the effective date of the Fair SentencingAct, Dorsey had committed the underlying crime prior tothat date. Id., at 69–70. And he concluded that the 1986 Drug Act’s old minimums, not the new Fair SentencingAct, applied in those circumstances. Ibid. He consequentlysentenced Dorsey to the 1986 Drug Act’s 10-year mandatory minimum term. Id., at 80. The Court of Appeals for the Seventh Circuit affirmed, United States v. Fisher, 635 F. 3d 336 (2011), and denied rehearing en banc, 646
F. 3d 429 (2011) (per curiam); see also United States v. Holcomb, 657 F. 3d 445 (CA7 2011).
The Courts of Appeals have come to different conclusions as to whether the Fair Sentencing Act’s more lenient
10 DORSEY v. UNITED STATES
Opinion of the Court
mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took placeafter, the date that Act took effect, namely, August 3,2010. Compare United States v. Douglas, 644 F. 3d 39, 42–44 (CA1 2011) (Act applies), and United States v. Dixon, 648 F. 3d 195, 203 (CA3 2011) (same), with 635
F. 3d, at 339–340 (Act does not apply), United States v. Sidney, 648 F. 3d 904, 910 (CA8 2011) (same), and United States v. Tickles, 661 F. 3d 212, 215 (CA5 2011) (per curiam) (same). In light of that disagreement, we granted Hill’s and Dorsey’s petitions for certiorari. Since petitioners and the Government both take the positionthat the Fair Sentencing Act’s new minimums do apply in these circumstances, we appointed as amicus curiae Miguel Estrada to argue the contrary position. He has ably discharged his responsibilities.
II
A
The timing issue before us is difficult in part because relevant language in different statutes argues in oppositedirections. See Appendix A, infra. On the one hand, a federal saving statute, Act of Feb. 25, 1871 (1871 Act), §4,16 Stat. 432, phrased in general terms, provides that a new criminal statute that “repeal[s]” an older criminalstatute shall not change the penalties “incurred” underthat older statute “unless the repealing Act shall so expressly provide.” 1 U. S. C. §109. Case law makes clear that the word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth.See Warden v. Marrero, 417 U. S. 653, 659–664 (1974); see also United States v. Tynen, 11 Wall. 88, 92 (1871). Case law also makes clear that penalties are “incurred” underthe older statute when an offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable. See United States v. Reisinger, 128 U. S.
11 Cite as: 567 U. S. ____ (2012)
Opinion of the Court
398, 401 (1888); Great Northern R. Co. v. United States, 208 U. S. 452, 464–470 (1908).
On the other hand, the Sentencing Reform Act saysthat, regardless of when the offender’s conduct occurs, the applicable Guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii). And the Fair Sentencing Act requires the Commission to change the Guidelines in the wake of the Act’s new minimums, making them consistent with “other guidelineprovisions and applicable law.” §8(2), 124 Stat. 2374.
Courts that have held that they must apply the old,higher 1986 Drug Act minimums to all pre-Act offenders,including those sentenced after the Fair Sentencing Act took effect, have emphasized that the 1871 Act requiresthat result unless the Fair Sentencing Act either expressly says or at least by fair implication implies the contrary. See 635 F. 3d, at 339–340; Sidney, supra, at 906–908; Tickles, supra, at 214–215; see also Holcomb, supra, at 446–448 (opinion of Easterbrook, J.). Courts that have concluded that the Fair Sentencing Act’s more lenientpenalties apply have found in that Act, together with theSentencing Reform Act and other related circumstances,indicia of a clear congressional intent to apply the new Act’s minimums. See Douglas, supra, at 42–44; Dixon, supra, at 199–203; see also Holcomb, 657 F. 3d, at 454– 457 (Williams, J., dissenting from denial of rehearing en banc); id., at 461–463 (Posner, J., dissenting from denialof rehearing en banc). We too take the latter view. Six considerations, taken together, convince us that Congressintended the Fair Sentencing Act’s more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are sentenced after that date.
First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. It is true that the 1871 Act uses the words “expressly provide.” 1
12 DORSEY v. UNITED STATES
Opinion of the Court
U. S. C. §109. But the Court has long recognized that thissaving statute creates what is in effect a less demanding interpretive requirement. That is because statutes en- acted by one Congress cannot bind a later Congress,which remains free to repeal the earlier statute, to exemptthe current statute from the earlier statute, to modify theearlier statute, or to apply the earlier statute but as modified. See, e.g., Fletcher v. Peck, 6 Cranch 87, 135 (1810); Reichelderfer v. Quinn, 287 U. S. 315, 318 (1932). And Congress remains free to express any such intention eitherexpressly or by implication as it chooses.
Thus, the Court has said that the 1871 Act “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.” Great Northern R. Co., supra, at 465 (emphasis added). And in a comparable context the Court has emphasized that the Administrative Procedure Act’suse of the word “expressly” does not require Congress touse any “magical passwords” to exempt a later statutefrom the provision. Marcello v. Bonds, 349 U. S. 302, 310 (1955). Without requiring an “express” statement, theCourt has described the necessary indicia of congressionalintent by the terms “necessary implication,” “clear implication,” and “fair implication,” phrases it has used interchangeably. Great Northern R. Co., supra, at 465, 466; Hertz v. Woodman, 218 U. S. 205, 218 (1910); Marrero, supra, at 660, n. 10. One Member of the Court has said we should determine whether “the plain import of a laterstatute directly conflicts with an earlier statute,” and, ifso, “the later enactment governs, regardless of its compliance with any earlier-enacted requirement of an expressreference or other ‘magical password.’” Lockhart v. United States, 546 U. S. 142, 149 (2005) (SCALIA, J., concurring).
Hence, the Court has treated the 1871 Act as setting forth an important background principle of interpretation.The Court has also assumed Congress is well aware of the
13 Cite as: 567 U. S. ____ (2012)
Opinion of the Court
background principle when it enacts new criminal statutes. E.g., Great Northern R. Co., supra, at 465; Hertz, supra, at 217; cf. Marcello, supra, at 310. And the principle requires courts, before interpreting a new criminalstatute to apply its new penalties to a set of pre-Act offenders, to assure themselves that ordinary interpretiveconsiderations point clearly in that direction. Words such as “plain import,” “fair implication,” or the like reflect theneed for that assurance. And it is that assurance, which we shall assume is conveyed by the phrases “plain import” or “fair implication,” that we must look for here.
Second, the Sentencing Reform Act sets forth a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall consider,” among other things, the “sentencing range” established by the Guidelines that are “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii) (emphasis added). Although the Constitution’s Ex Post Facto Clause, Art. I, §9, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not prohibit applying lower penalties. See Calder v. Bull, 3 Dall. 386, 390–391 (1798); Collins v. Youngblood, 497 U. S. 37, 41–44 (1990). The Sentencing Commission has consequently instructed sentencing judges to “use the Guidelines Manual in effect on the date that the defendant is sentenced,” regardless of when the defendant committedthe offense, unless doing so “would violate the ex post facto clause.” USSG §1B1.11. And therefore when the Commission adopts new, lower Guidelines amendments, those amendments become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter. Just as we assume Congress was aware of the 1871 Act’s background norm, so we assume that Congress was aware of this different background sentencing principle.
14 DORSEY v. UNITED STATES
Opinion of the Court
Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act background principle here. A section of the Fair Sentencing Act entitled “Emergency Authority for United StatesSentencing Commission” requires the Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “conforming amendments” to the Guidelines that “achieve consistency with other guideline provisions and applicable law.” §8, 124 Stat. 2374.Read most naturally, “applicable law” refers to the law aschanged by the Fair Sentencing Act, including the provision reducing the crack mandatory minimums. §2(a), id., at 2372. As the Commission understood this provision, achieving consistency with “other guideline provisions” means reducing the base offense levels for all crackamounts proportionally (using the new 18-to-1 ratio), including the offense levels governing small amounts of crack that did not fall within the scope of the mandatoryminimum provisions. 75 Fed. Reg. 66191. And consistency with “other guideline provisions” and with prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense prior to the new amendments’ effective date but were sentenced thereafter. See USSG §1B1.11(a); e.g.,USSG App. C, amdts. 706, 711 (Supp. Nov. 2004–Nov.2007); see also Memorandum from G. Schmitt, L. Reed, &
K. Cohen, USSC, to Chair Hinojosa et al., Subject: Analysis of the Impact of the Crack Cocaine Amendment if Made Retroactive 23 (Oct. 3, 2007). Cf. USSG App. C, amdt. 571 (amendment increasing restitution, which may present ex post facto and one-book-rule concerns, would apply only to defendants sentenced for post-amendment offenses), discussed post, at 5 (SCALIA, J., dissenting).
Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal conduct involving the same amount of crack and were sentenced at the same time would receive radically different sentences. For example, a first-time post-Act offenderwith five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment,while an otherwise identical pre-Act offender would haveto receive the 5-year mandatory minimum. CompareUSSG §2D1.1(c) (Nov. 2011) with 21 U. S. C. §841(b)(1)(B) (2006 ed.). A first-time post-Act 50-gram offender would be subject to a Guidelines range of less than six years ofimprisonment, while his otherwise identical pre-Act counterpart would have to receive the 10-year mandatory minimum. Compare USSG §2D1.1(c) (Nov. 2011) with 21
U. S. C. §841(b)(1)(A) (2006 ed.).
Moreover, unlike many prechange/postchange discrepancies, the imposition of these disparate sentences involves roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentenc- ing statutes typically seek to combat. See, e.g., 28
U. S. C. §991(b)(1)(B) (purposes of Guidelines-based sentencing include “avoiding unwarranted sentencing disparities among defendants with similar records who have beenfound guilty of similar criminal conduct”); S. Rep. No. 98–223, p. 74 (1983) (explaining rationale for using same,current Guidelines for all roughly contemporaneous sentencings). Further, it would involve imposing upon the pre-Act offender a pre-Act sentence at a time after Congress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long.
Finally, one cannot treat such problems as if they wereminor ones. Given the 5-year statute of limitations for federal drug offenses, the 11-month median time between
16 DORSEY v. UNITED STATES
Opinion of the Court
indictment and sentencing for those offenses, and theapproximately 5,000 federal crack offenders convicted each year, many pre-Act offenders were not (and will notbe) sentenced until after August 3, 2010, when the new,more lenient mandatory minimums took effect. See 18
U. S. C. §3282(a); Administrative Office of United States Courts, Judicial Business of the United States Courts,
p. 272 (2010) (Table D–10); 2011 Report 191.
Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, see supra, at 13–14, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums.
Consider, for example, a first-time offender convicted ofpossessing with intent to distribute four grams of crack. No mandatory sentence, under the 1986 Drug Act or the Fair Sentencing Act, applies to an offender possessing sosmall an amount. Yet under the old law, the Commission, charged with creating proportionate sentences, had createda Guidelines range of 41 to 51 months for such an offender, a sentence proportional to the 60 months that the 1986 Drug Act required for one who trafficked five grams of crack. See supra, at 5–6; USSG §2D1.1(c) (Nov. 2009).
The Fair Sentencing Act, however, requires the Commission to write new Guidelines consistent with the new law. The Commission therefore wrote new Guidelines that provide a sentencing range of 21 to 27 months—about two years—for the first-time, 4-gram offender. See USSG §2D1.1(c) (Nov. 2011). And the Sentencing Reform Act
17 Cite as: 567 U. S. ____ (2012)
Opinion of the Court
requires application of those new Guidelines to all of- fenders (including pre-Act offenders) who are sentenced once those new Guidelines take effect. See 18 U. S. C. §3553(a)(4)(A)(ii). Those new Guidelines must take effect and apply to a pre-Act 4-gram offender, for such an offender was never subject to a trumping statutory 1986 Drug Act mandatory minimum. However, unless the Fair Sentencing Act’s new, more lenient mandatory mini- mums apply to pre-Act offenders, an otherwise identical offender who possessed five grams would have to receive a5-year sentence. See 21 U. S. C. §841(b)(1)(B) (2006 ed., Supp. IV).
For example, imagine that on July 1, 2010, both Smithand Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four gramsof crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take effect. Smith’s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’s sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, wouldhere have created a new disparate sentencing “cliff.”
Nor can one say that the new Act would produce disproportionalities like this in only a few cases. In fiscal year2010, 17.8 percent of all crack offenders were convicted of- offenses not subject to the 1986 Drug Act’s minimums. 2011 Report 191. And since those minimums apply only to some drug offenders and they apply in different ways, onecan find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 DrugAct minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve
18 DORSEY v. UNITED STATES
Opinion of the Court
more uniform, more proportionate sentences. Congress,when enacting the Fair Sentencing Act, could not have intended any such result.
Sixth, we have found no strong countervailing consideration. Amicus and the dissent argue that one might readmuch of the statutory language we have discussed asembodying exceptions, permitting the old 1986 Drug Act minimums to apply to pre-Act offenders sentenced afterAugust 3, 2010, when the Fair Sentencing Act took effect.The words “applicable law” in the new Act, for example, could, linguistically speaking, encompass the 1986 DrugAct minimums applied to those sentenced after August 3. Post, at 4–6 (SCALIA, J., dissenting). Moreover, Congress could have insisted that the Commission write new Guidelines with special speed to assure itself that new, post-August 3 offenders—but not old, pre-August 3 offenders—would receive the benefit of the new Act. Post, at 6–8. Further, amicus and the dissent note that to apply the new Act’s minimums to the old, pre-August 3 offenderswill create a new disparity—one between pre-Act offenderssentenced before August 3 and those sentenced after that date. Post, at 9.
We do not believe that these arguments make a criticaldifference. Even if the relevant statutory language canbe read as amicus and the dissent suggest and even if Congress might have wanted Guidelines written speedily simply in order to apply them quickly to new offenders,there is scant indication that this is what Congress did mean by the language in question nor that such was infact Congress’ motivation. The considerations we have set forth, supra, at 13–17 and this page, strongly suggest the contrary.
We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3 will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a
19 Cite as: 567 U. S. ____ (2012)
Opinion of the Court
new law changing sentences (unless Congress intends reopening sentencing proceedings concluded prior to a newlaw’s effective date). We have explained how in federalsentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. Supra, at 13; compare 18 U. S. C. §3553(a)(4)(A)(ii) with §3582(c). And we have explained how, here, continued application of the old 1986 Drug Act minimums to those pre-Act offenders sentenced after August 3 would make matters worse. Supra, at 16–18. We consequently conclude that thisparticular new disparity (between those pre-Act offenders already sentenced and those not yet sentenced as ofAugust 3) cannot make a critical difference.
For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act’s new,lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s “plain import” or “fair implication.”
B We add one final point. Several arguments we havediscussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13–14. What about those who committed an offense prior to August 3and were sentenced after August 3 but before November 1, 2010—a period after the new Act’s effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act’s new mandatory minimums apply to them?In our view, the new Act’s lower minimums apply tothem as well. Our reason is that the statute simply instructs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Act took effect). §8(1), 124 Stat. 2374. As far as Congresswas concerned, the Commission might have (having prepared new Guidelines in advance) promulgated those
20 DORSEY v. UNITED STATES
Opinion of the Court
Guidelines within a few days—perhaps on August 3 itself. At the same time, the Commission possesses ample authority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. See 28
U. S. C. §994(u) (power to make Guidelines reductions retroactive); 76 Fed. Reg. 41333–41334 (2011) (amended18-to-1 Guidelines made retroactive). In any event,courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums.
For these reasons, if the Fair Sentencing Act’s new minimums apply to all of those sentenced after August 3,2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act’s application is keyed to a later date, therebyleaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date.
* * * We vacate the Court of Appeals’ judgments and remand these cases for further proceedings consistent with thisopinion.
It is so ordered.
Opinion of the Court
Cite as: 567 U. S. ____ (2012) 21
Appendix A to opinion of the Court
APPENDIXES A Act of Feb. 25, 1871, §4, 16 Stat. 432, 1 U. S. C. §109
Repeal of statutes as affecting existing liabilities
“The repeal of any statute shall not have the effect torelease or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealingAct shall so expressly provide, and such statute shallbe treated as still remaining in force for the purpose ofsustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
Sentencing Reform Act of 1984, 18 U. S. C. §3553(a)(4) (A)(ii)
Imposition of a sentence
“FACTORS TO BE CONSIDERED IN IMPOSING A SEN-TENCE. . . . The court, in determining the particular sentence to be imposed, shall consider . . . thekinds of sentence and sentencing range establishedfor . . . the applicable category of offense committed bythe applicable category of defendant as set forth inthe guidelines . . . that . . . are in effect on the date the defendant is sentenced . . . .”
Fair Sentencing Act of 2010, §8, 124 Stat. 2374
Emergency Authority for United States Sentencing Commission
“The United States Sentencing Commission shall—
“(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act, in accordance with the procedure set forth in section 21(a) of the SenOpinion
of the Court
22 DORSEY v. UNITED STATES
Appendix A to opinion of the Court
tencing Act of 1987 (28 U. S. C. [§]994 note), asthough the authority under that Act had not expired; and
“(2) pursuant to the emergency authority providedunder paragraph (1), make such conforming amendments to the Federal sentencing guidelines as theCommission determines necessary to achieve consistency with other guideline provisions and applicable law.”
Opinion of the Court
Cite as: 567 U. S. ____ (2012) 23
Appendix B to opinion of the Court
B
The following chart shows the sentencing scheme that would result for first-time pre-Act crack offenders if the 1986 Drug Act’s old 100-to-1 mandatory minimums remain in effect after the Fair Sentencing Act’s new 18-to-1 Guidelines became effective. 21 U. S. C. §§841(b)(1)(A)–
(C) (2006 ed.); USSG §§2D1.1(c), 5G1.1(b) (Nov. 2011).
1986 Drug Act Minimums and Fair Sentencing Act Guidelines for Category I Offenders with No Prior Drug Felonies
Drug Quantity
Mandatory Minimum
Guidelines Range
Sentence
1 g
0 months
10–16
10–16
2 g
0
15–21
15–21
3 g
0
21–27
21–27
4 g
0
21–27
21–27
5 g
60
21–27
60
10 g
60
27–33
60
15 g
60
33–41
60
20 g
60
41–51
60
25 g
60
51–63
60–63
35 g
60
63–78
63–78
50 g
120
63–78
120
100 g
120
63–78
120
150 g
120
78–97
120
200 g
120
97–121
120–121
500 g
120
121–151
121–151
1,500 g
120
151–188
151–188
The chart illustrates the disproportionate sentences that such a scheme would create. See supra, at 16–18. For one thing, it would create sentencing “cliffs” at the 1986 Act’sold triggering amounts of 5 grams and 50 grams (where the old minimums would entirely trump the new Guidelines), resulting in radically different Guidelines sentences
Opinion of the Court
24 DORSEY v. UNITED STATES
Appendix B to opinion of the Court
for small differences in quantity. For another, because of those “cliffs,” the scheme would create similar Guidelines sentences for offenders who dealt in radically different amounts of crack, e.g., 50 grams versus 500 grams.
To be sure, as amicus points out, Congress has providedtwo mechanisms through which an offender may escapean otherwise applicable mandatory minimum, diminishing this problem for some offenders. First, an offender mayescape a minimum by providing substantial assistancein the investigation or prosecution of another person. 18
U. S. C. §3553(e); Fed. Rule Crim. Proc. 35(b); see also 28
U. S. C. §994(n); USSG §5K1.1. Second, under 18 U. S. C. §3553(f), drug offenders who have little or no criminal history and who satisfy other requirements in the provision may obtain “safety valve” relief. See also USSG §5C1.2.And because of these mechanisms a substantial portion of first-time offenders are relieved of application of a mandatory minimum. However, offenders with a criminal history category of II or higher are ineligible for “safetyvalve” relief; they escape application of a minimum at amuch lower percentage. See 2011 Report 193 (Table 8–8).
Crack Offender Categories by Application of 1986 Drug Act Mandatory Min. (FY 2010)
Offender Category
Total Offenders
Total with Quantity Carrying Mandatory Min.
Percent with Quantity Carrying Mandatory Min.
Total Relieved of Mandatory Min. Appl.
Percent Relieved of Mandatory Min. Appl.
I
1,055
890
84.4%
525
59.0%
II
556
445
80.0%
129
29.0%
III
865
703
81.3%
208
29.6%
IV
556
469
84.4%
124
26.4%
V
380
308
81.1%
89
28.9%
VI
1,345
1,086
80.7%
332
30.6%
All
4,751
3,905
82.2%
1,407
36.0%
Opinion of the Court
Cite as: 567 U. S. ____ (2012) 25
Appendix B to opinion of the Court
Yet similar sentencing anomalies would result for repeat offenders if the 1986 Drug Act’s minimums remain ineffect after the Fair Sentencing Act’s Guidelines became effective. Take, for example, Category II offenders.
1986 Drug Act Minimums and Fair Sentencing Act Guidelines for Category II Offenders with No Prior Drug Felonies
Drug Quantity
Mandatory Minimum
Guidelines Range
Sentence
1 g
0 months
12–18
12–18
2 g
0
18–24
18–24
3 g
0
24–30
24–30
4 g
0
24–30
24–30
5 g
60
24–30
60
10 g
60
30–37
60
15 g
60
37–46
60
20 g
60
46–57
60
25 g
60
57–71
60–71
35 g
60
70–87
70–87
50 g
120
70–87
120
100 g
120
70–87
120
150 g
120
87–108
120
200 g
120
108–135
120–135
500 g
120
135–168
135–168
1,500 g
120
168–210
168–210
As the chart illustrates, for Category II offenders accountable for 5 to 22 grams of crack or for 50 to 195 grams, the 100-to-1 minimums would entirely trump the 18-to-1Guidelines, producing the same anomalies—dissimilar sentences for similar quantities and similar sentences for dissimilar quantities—described above.
In contrast, a scheme with the Fair Sentencing Act’s 18to-1 minimums and new Guidelines produces the proportionality in sentencing that Congress intended in enacting
Opinion of the Court
26
DORSEY v. UNITED STATES Appendix B to opinion of the Court the Sentencing Reform Act and the Fair Sentencing Act.
Fair Sentencing Act Minimums and Guidelines for Category II Offenders with No Prior Drug Felonies
Drug Quantity
Mandatory Minimum
Guidelines Range
Sentence
1 g
0 months
12–18
12–18
2 g
0
18–24
18–24
3 g
0
24–30
24–30
4 g
0
24–30
24–30
5 g
0
24–30
24–30
10 g
0
30–37
30–37
15 g
0
37–46
37–46
20 g
0
46–57
46–57
25 g
0
57–71
57–71
35 g
60
70–87
70–87
50 g
60
70–87
70–87
100 g
60
70–87
70–87
150 g
60
87–108
87–108
200 g
60
108–135
108–135
500 g
120
135–168
135–168
1,500 g
120
168–210
168–210
_________________
_________________
Cite as: 567 U. S. ____ (2012) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 11–5683 and 11–5721
EDWARD DORSEY, SR., PETITIONER 11–5683 v. UNITED STATES
COREY A. HILL, PETITIONER 11–5721 v. UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2012]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
In the Fair Sentencing Act of 2010, 124 Stat. 2372, Congress increased the threshold quantities of crack co- caine required to trigger the 5- and 10-year mandatoryminimum penalties associated with offenses involving the manufacture, distribution, or dispensation of the drug,and eliminated the 5-year mandatory minimum previously associated with simple possession of it. The Act is silent as to whether these changes apply to defendants who committed their offenses before, but whose sentencing proceedings occurred after, its August 3, 2010, effectivedate. In my view, the general saving statute, 1 U. S. C.§109, dictates that the new, more lenient mandatoryminimum provisions do not apply to such pre-enactment offenders.
I The Court starts off on the right foot by acknowledging, ante, at 10–11, that the ameliorative amendments at issue
2 DORSEY v. UNITED STATES
SCALIA, J., dissenting
here trigger application of the general saving statute. Enacted in 1871 to reverse the common-law rule that the repeal or amendment of a criminal statute would abate all nonfinal convictions under the repealed or amended statute, see Warden v. Marrero, 417 U. S. 653, 660 (1974), the saving statute provides in relevant part:
“The repeal of any statute shall not have the effectto release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statuteshall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” 1 U. S. C. §109.
By reducing the statutory penalties for crack cocaine offenses, the Fair Sentencing Act “repeal[ed]” the former penalties; for defendants who committed their offenses (and hence “incurred” the penalties) while the prior lawwas in force, §109 directs that the prior law “shall betreated as still remaining in force.”
Although §109 purports to require that subsequent legislation opting out of its default rule must do so “expressly,” the Court correctly observes, ante, at 12, that express-statement requirements of this sort are ineffective. See Lockhart v. United States, 546 U. S. 142, 147– 150 (2005) (SCALIA, J., concurring). Because “one legislature cannot abridge the powers of a succeeding legislature,” Fletcher v. Peck, 6 Cranch 87, 135 (1810), a statute is “alterable when the legislature shall please to alter it,” Marbury v. Madison, 1 Cranch 137, 177 (1803). Consequently, the express-statement requirement of §109 is itself subject to repeal on the same terms as any otherstatute, which is to say that a repeal may be accomplished by implication. See, e.g., Marrero, supra, at 659–660,
n. 10; Great Northern R. Co. v. United States, 208 U. S.
Cite as: 567 U. S. ____ (2012) 3
SCALIA, J., dissenting
452, 465 (1908).
Understanding the interpretive problem posed by thesecases as one of implied repeal helps to explain the Court’sobservation, ante, at 13, that what is required to override §109’s default rule is a clear demonstration of congressional intent to do so. Admittedly, our cases have notspoken with the utmost clarity on this point. In Marrero, for example, we suggested that a “fair implication” froma subsequently enacted statute would suffice, 417 U. S.,at 660, n. 10, while in Hertz v. Woodman, 218 U. S. 205 (1910), we used the phrase “clear implication,” id., at 218 (emphasis added); see also ibid. (“plain implication”). In Great Northern R. Co., we split the difference, stating atone point that §109 controls unless Congress expresses acontrary intention “either expressly or by necessary implication in a subsequent enactment,” 208 U. S., at 465 (emphasis added), but suggesting at another point that a “fair implication,” id., at 466, would do. In my view, the “fairimplication” formulation understates the burden properly imposed on a defendant who would claim an implicitexception from §109’s terms. Because the effect of such an exception is to work a pro tanto repeal of §109’s application to the defendant’s case, the implication from the subsequently enacted statute must be clear enough to overcome our strong presumption against implied repeals.See, e.g., Matsushita Elec. Industrial Co. v. Epstein, 516
U. S. 367, 381 (1996); Posadas v. National City Bank, 296
U. S. 497, 503 (1936). Thus, we should conclude that Congress has deviated from §109 (or any similar statuteestablishing a background interpretive principle) onlywhen the “plain import of a later statute directly conflicts” with it. Lockhart, supra, at 149 (SCALIA, J., concurring) (emphasis added).
4 DORSEY v. UNITED STATES
SCALIA, J., dissenting
II
A
The considerations relied upon by the Court do not comeclose to satisfying the demanding standard for repeal by implication. As an initial matter, there is no persuasive force whatever to the Court’s observation that continuingto apply the prior mandatory minimums to pre-enactmentoffenders would “involve imposing upon the pre-Act offender a pre-Act sentence at a time after Congress hadspecifically found in the Fair Sentencing Act that such asentence was unfairly long.” Ante, at 15. That is true whenever Congress reduces a criminal penalty, and so is a consequence that Congress affirmatively embraced when it said in §109 that ameliorative amendments to criminalstatutes do not apply to pre-enactment conduct. Nor does it matter that Congress has instructed district courts,when applying the Federal Sentencing Guidelines, to apply the version in force on the date of sentencing, withthe object of reducing disparities in sentences betweensimilar defendants who are sentenced for the same conduct at the same time. See 18 U. S. C. §3553(a)(4)(A)(ii). The presumption against implied repeals requires us to give effect, if possible, to both §3553(a)(4)(A)(ii) and §109.“The courts are not at liberty to pick and choose amongcongressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417
U. S. 535, 551 (1974). We may readily do so here by holding that §3553(a)(4)(A)(ii) applies to Guidelines amendments, and §109 to statutory ones.
The Court also stresses that the Fair Sentencing Actinstructs the Sentencing Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “such conforming amendments” to the Sentencing Guidelines “as the Commission determines
Cite as: 567 U. S. ____ (2012) 5
SCALIA, J., dissenting
necessary to achieve consistency with other guideline provisions and applicable law.” §8, 124 Stat. 2374. The argument goes that, because the Commission implemented this directive by reducing the Guidelines ranges forcrack cocaine offenses to track the 18-to-1 crack-to-powderratio reflected in the new mandatory minimums, see 75Fed. Reg. 66191 (2010), and because the general rule isthat a sentencing court should apply the version of the Guidelines in effect at the time of sentencing, see 18
U. S. C. §3553(a)(4)(A)(ii), Congress must have understood that the new mandatory minimums would apply immediately, since otherwise there would be a mismatch between the statutory penalties and Guidelines ranges.
That conclusion simply does not follow. For one thing,the argument begs the very question presented here: What is the “applicable law” relevant to pre-enactment offenders who are sentenced after enactment? The Commission could well have answered this question by concluding that,in light of §109, the law applicable to such offenders isthe pre-Act mandatory minimums. It might therefore haveretained, as to those offenders, the existing Guidelinesranges reflecting a higher crack-to-powder ratio. Althoughrare, it is not unheard of for the Commission to establish Guidelines whose application turns on the date of commission of the defendant’s offense. See United States Sentencing Commission, Guidelines Manual §5E1.1(g)(1)(Nov. 2011) (governing restitution for offenses committedon or after November 1, 1997, and providing that the prior version of the Guideline shall govern all other cases); id., §8B1.1(f)(1) (same for restitution obligations of organizational defendants). Of course, the Commission did not interpret the Fair Sentencing Act’s directive in this manner. But the possibility that it could (not to mentionthe probability that it should) have done so illustrates thefolly of basing inferences about what Congress intended when it passed the Fair Sentencing Act on decisions the
6 DORSEY v. UNITED STATES
SCALIA, J., dissenting
Commission would not make until several months later.1
Moreover, even if one takes it as given that the Commission’s new crack cocaine Guidelines would apply the lower 18-to-1 ratio to all defendants sentenced after the new Guidelines were put in place, it would not follow thatCongress necessarily expected the new mandatory minimums to apply to pre-enactment offenders. The directive to update the Guidelines on an emergency basis is equally consistent with Congress’s seeking to avoid a mismatch between the Guidelines and the statutory penalties for post-enactment offenders sentenced shortly after the Act’s effective date.
Petitioners and the Government discount this explanation, noting that because of the lags associated with investigating and prosecuting drug offenses, most of the defendants sentenced on the 91st day after the FairSentencing Act’s enactment were sure to be pre-Act offenders. If Congress did not expect the new mandatory minimums to apply to such offenders, they say, there would have been no need to ensure that revised Guidelines were in place so quickly. But most is not all, and it would have been entirely sensible for Congress to worry that some post-Act offenders—offenders clearly subject to the new mandatory minimums—would nonetheless be sentenced under outdated Guidelines if the Guidelines were not revised in short order.
The 11-month median time between indictment and
—————— 1Congressional reliance on future Commission action might be plausible if the Commission had a settled practice of tying reductions instatutory mandatory minimums to immediately applicable reductionsin Guidelines ranges, without any distinction based on the timing ofthe defendant’s offense. But the Court does not cite any such settledpractice, and I am not aware of any. Presumably there has been no occasion for a practice to develop either way, since congressionallegislation reducing criminal penalties is, in this day and age, very rare.
Cite as: 567 U. S. ____ (2012) 7
SCALIA, J., dissenting
sentencing for non-marijuana federal drug offenses, see Administrative Office of United States Courts, Judicial Business of the United States Courts, p. 272 (2010) (TableD–10), does not establish that prompt issuance of new Guidelines for post-Act offenders could not have been a pressing concern. Because that is a median figure, it shows that half of all drug defendants are sentenced sooner than 11 months after being indicted. And it is only an aggregate figure. For drug possession offenses—relevant here because the Fair Sentencing Act eliminated the mandatory minimum sentence previously applicable tosimple possession of crack cocaine, see §3, 124 Stat.2372—the equivalent figure was just 5.4 months fromindictment to sentencing. The pace of criminal cases also varies considerably from district to district. In the Eastern District of Virginia, for instance, the median time from indictment to sentencing for all criminal cases was just 3.6months. See Judicial Business, supra, at 252 (Table D–6).What is more, without the Fair Sentencing Act’s emergency directive, amendments to the Guidelines to implement the Act likely would not have been put in place until more than a year after its passage.2 In the interim, a great ——————
2In the ordinary course, the Commission may submit proposedGuidelines amendments to Congress “at or after the beginning of aregular session of Congress, but not later than the first day of May.” 28
U. S. C. §994(p). Unless disapproved by Congress, the proposedamendments “take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and nolater than the first day of November of the calendar year in which the amendment . . . is submitted.” Ibid. As a matter of practice, the Commission has adopted November 1 as the default effective date forits proposed amendments. See United States Sentencing Commission, Rules of Practice and Procedure, Rule 4.1 (amended Aug. 2007).Because the Fair Sentencing Act was enacted on August 3, 2010—afterMay 1—there would have been no opportunity for the Commission to submit proposed amendments to Congress until January 2011. Given the 180-day waiting period, the amendments could not have gone intoforce until the very end of June 2011 at the earliest. And in all likeli8
DORSEY v. UNITED STATES
SCALIA, J., dissenting
many post-Act offenders might have been sentenced under the outdated Guidelines, even though they were clearly entitled to take advantage of the statutory amendments. Because the emergency authority conferred on the Commission can reasonably be understood as directed at this mismatch problem, it creates no clear implication thatCongress expected the new statutory penalties to apply to pre-enactment offenders.
The Court’s last argument is that continuing to apply the prior mandatory minimums to pre-enactment offenders would lead to anomalous, disproportionate sentencingresults. It is true enough, as the Court notes, ante, at 16– 18, that applying the prior mandatory minimums in tandem with the new Guidelines provisions—which track thenew, more lenient mandatory minimums—leads to aseries of “cliffs” at the mandatory minimum thresholds.But this does not establish that Congress clearly meantthe new mandatory minimums to apply to pre-enactment offenders. As noted above, supra, at 5–6, there is no reason to take the Guidelines amendments ultimately promulgated by the Commission as a given when evaluating what Congress would have understood when the FairSentencing Act was enacted. The Commission could have promulgated amendments that ameliorated this problemby retaining the old Guidelines ranges for pre-enactment offenders.
Moreover, although the cliffs produced by the mismatch between Guidelines and statutory penalties are admittedlyinconsistent with the premise of the Guidelines system that sentences should vary in proportion to the gravityof the offense and the culpability of the offender, see 18
U. S. C. §3553(a)(1), (a)(2)(A), the same objection can be lodged against any mandatory minimum that trumps anotherwise applicable Guidelines range. And it is not as
——————
hood, they would not have been effective until November 1, 2011.
Cite as: 567 U. S. ____ (2012) 9
SCALIA, J., dissenting
though the results of continuing to apply the pre-Actstatutory penalties are so senseless as to establish that Congress must not have intended them. Retaining the oldmandatory minimums ensures at least rough equivalence in sentences for defendants who committed their crimes at the same time, but were sentenced at different times— even as it leads to disparities for defendants who are sentenced at the same time, but committed their offenses at different times. In light of this plausible basis for continuing to apply the prior law to pre-enactment offenders, there is no reason to conclude that Congress necessarily expected the new statutory penalties to apply.
B Petitioners and the Government press a handful of additional arguments which require only brief discussion.They first contend that an intention to apply the newmandatory minimums to pre-enactment offenders can beinferred from §10 of the Fair Sentencing Act, 124 Stat.2375, which instructs the Commission to study the effectsof the new law and make a report to Congress within five years. The suggestion is that, if the statutory penalties do not apply to pre-enactment offenders, then the Act would have no effect on many defendants sentenced duringthe study period, which would in turn undermine Congress’s goal of compiling useful data. This is makeweight. Whether or not the new mandatory minimums are held applicable to pre-enactment offenders, they will be applied to many post-enactment offenders during the study period,and the Commission will have the opportunity to collect useful data. The study provision simply has nothing to say about the question at issue here. The Government also notes that the Senate bill that ultimately became the Fair Sentencing Act was based onan earlier bill which contained a provision that would have delayed the Act’s effective date until 180 days after
10 DORSEY v. UNITED STATES
SCALIA, J., dissenting
passage, and specifically provided that “[t]here shall be noretroactive application of any portion of this Act.” H. R. 265, 111th Cong., 1st Sess., §11 (2009). Even if one is inclined to base inferences about statutory meaning on unenacted versions of the relevant bill, but see Hamdan v. Rumsfeld, 548 U. S. 557, 668 (2006) (SCALIA, J., dissenting), this argument from drafting history is unpersuasive. That Congress considered and rejected a proposal thatwould have delayed application of the Act until 180 days after passage says nothing about whether the version finally enacted applies to defendants whose criminal conduct pre-dated the Act. Moreover, the same bill would have provided permissive authority for the Commission topromulgate amended Guidelines on an emergency basis, see §8(a), notwithstanding its delayed effective date provision. This point undercuts the argument that emergency amendment authority and immediate application of the new statutory penalties go hand-in-hand.
Petitioners finally appeal to the rule of lenity and thecanon of constitutional avoidance. But the rule of lenityhas no application here, because the background principlesupplied by §109 serves to remove the ambiguity that is anecessary precondition to invocation of the rule. See Deal
v. United States, 508 U. S. 129, 135 (1993). The canon of constitutional avoidance also has no application here.Although many observers viewed the 100-to-1 crack-topowder ratio under the prior law as having a racially disparate impact, see, e.g., United States SentencingCommission, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997), only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–265 (1977); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217 (1995). There is thus no constitutional doubt triggered by application of the
Cite as: 567 U. S. ____ (2012) 11
SCALIA, J., dissenting
prior mandatory minimums, much less the sort of “seriousconstitutional doub[t]” required to invoke the avoidance canon. Clark v. Martinez, 543 U. S. 371, 381 (2005).
* * * In the end, the mischief of the Court’s opinion is not theresult in this particular case, but rather the unpredictability it injects into the law for the future. The Court’s decision is based on “[s]ix considerations, taken together,” ante, at 11, and we are not told whether any one of these considerations might have justified the Court’s result inisolation, or even the relative importance of the various considerations. One of them (the Commission’s emergency authority to issue conforming amendments to the Guidelines) is a particular feature of the statute at issue in thesecases, but another (the fact that applying the prior statutory penalties alongside the new Guidelines leads to a mismatch) is a general feature of a sentencing scheme that calibrates Guidelines ranges to the statutory mandatory minimums for a given offense. Are we to conclude that, after the Sentencing Reform Act, §109 has no furtherapplication to criminal penalties, at least when statutory amendments lead to modification of the Guidelines? Portions of the Court’s opinion could be understood to suggest that result, but the Court leaves us in suspense.That is most unfortunate, because the whole point of§109, as well as other provisions of the Dictionary Act, see 1 U. S. C. §§1–8, and the definitional provisions of thefederal criminal law, see 18 U. S. C. §§5–27 (2006 ed. and Supp. IV), is to provide a stable set of background principles that will promote effective communication between Congress and the courts. In this context, stability is ensured by a healthy respect for our presumption against implied repeals, which demands a clear showing before weconclude that Congress has deviated from one of thesebackground interpretive principles. Because the Court’s
12
DORSEY v. UNITED STATES SCALIA, J., dissenting result cannot be reconciled with this approach, I respectfully dissent.

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Tuesday, June 26, 2012