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United States v. Acoff, No. 10-285-cr (2d Cir. February 10, 2011, amended February 11, 2011) (Calabresi, Lynch, CJJ, Murtha, DJ)

In this case, the defendant was convicted of a crack cocaine offense that, under the old law, carried a five-year mandatory minimum. But the district court refused to impose it. He gave the defendant fifteen months, holding that the 100-to-1 penalty ratio between crack cocaine and powder “does not make any sense at all.”

The court held that the below-minimum sentence was illegal and vacated it. It also, as it has in a few other recent opinions, rejected the argument that the 2010 Fair Sentencing Act, under which the sentence would have been lawful, applied retroactively.

Of particular note in this decision, however, are the concurring opinions.

Judge Calabresi, in his, suggested a means for courts to address statutory schemes – such as the old crack cocaine penalties – that, over time, come to raise constitutional concerns: a “dialogue” with the legislature. In his view, it is possible to see the Congress’ response to the “dialogue” over the crack penalties as a “response to a suggestion by the courts that the sentencing statutes were heading towards unconstitutionality.” Perhaps this would then raise a question as to “whether the traditional presumption against retroactivity should apply.” Rather, in a situation like this, it might be appropriate to reverse the ordinary presumptions and presume that the change is retroactive unless Congress expressly says otherwise. However, he concluded by recognizing that this approach has been rejected in the Second Circuit and that he is bound by that precedent.

Judge Lynch, in his concurrence, agreed that there is a “reasonable argument that Congress’ recognition that the prior law was unfair should have led to complete retroactivity.” He also recognized, however, the practical difficulties of that, given the large number of cases already disposed of under the old law. To him, the fair middle ground would have been for Congress to make the new law retroactive to those cases that were “still pending” when the FSA went into effect, even if the conduct had been completed before that date. “Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one.” Concluding that this was likely the result of “Congressional inattention,” he urged Congress to take a second look.