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The Court vacated the Rojas decision and voted to hear it en banc

On October 4, 2011, the Eleventh Circuit Court of Appeals vacated U.S. v. Rojas decision. A majority of the judges on the Court have voted to rehear the case en banc. This means that the issue of whether the Fair Sentencing Act of 2010 (FSA) applies to defendants sentenced after the Act but whose offense occurred before the Act will now be resolved by the entire court.

In U.S. v. Rojas the Court held the FSA applies to the defendants convicted of a federal drug crime, who were sentenced after its enactment but who committed their offense prior to August 3, 2010, enactment date. By passing the FSA the court found that Congress intended to restore fairness to Federal cocaine sentencing. The legislation attempted to reduce the disparity between federal criminal penalties for crack cocaine and powder cocaine offenses by lowering the gram – penalty ratio from 100:1 to 18:1. It also raised the drug quantities that triggered mandatory minimums.

Rojas, charged in Miami with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, pled guilty prior to the August 3, 2010 enactment. Because she conspired to distribute 71.8 grams of crack cocaine, she was facing the ten year mandatory minimum. After enactment of the FSA the amount triggering the ten year mandatory minimum was raised from 50 to 280 grams, she then faced a lower mandatory sentence of 5 years under the new law. Because her sentencing took place after the enactment, she wanted the new law to apply to avoid the pre-FSA 10 year mandatory minimum sentence.

In the panel decision, the appellate court ruled that the FSA should apply to those offences that occurred prior to enactment but who are sentenced afterwards. The appellate court rejected the government’s argument that the FSA is prohibited from applying to prior offenses under the Savings Clause unless the statute expressly provides.

Prior to Rojas, there was a contrary decision in U.S. v. Gomes, which held that the FSA is not retroactive to offenses committed prior to the FSA enactment. In Gomes the defendant’s offense took place before the FSA enactment and the sentencing took place prior to enactment. In Rojas the sentencing took place after enactment. Rojas court rejected the language in Gomes as dicta.

In another development, on the same day the Court vacated Rojas, the Court also vacated U.S. v. Hudson and agreed to hear that case en banc. In Hudson the FSA was enacted after his offense conduct but before his sentence took place. Hudson was decided prior to Rojas and is inconsistent with the Rojas panel decision. The facts were the same as Rojas but the defendant in Hudson did not receive the benefit of the FSA because the court followed U.S. v Gomes and did not find the holding to be dicta.

If the appellate court is reviewing the Hudson decision, which followed Gomes and did not apply the FSA, it could mean the court is going to reverse Hudson, reaffirm Rojas, and apply the FSA. Or the en banc Court could reverse Rojas and decide that Gomes is not dicta. If this is the purpose, then it is not clear why the Court had to rehear Hudson. It is all subject to speculation and we will just have to wait it out.