Dorsey v. United States

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being 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 been

prepared 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-year

mandatory minimum prison terms for federal drug crimes reflected a

100-to-1 disparity between the amounts of crack cocaine and powder

cocaine needed to trigger the minimums. Thus, the 5-year minimum

was triggered by a conviction for possessing with intent to distribute

5 grams of crack cocaine but 500 grams of powder, and the 10-year

minimum was triggered by a conviction for possessing with intent to

distribute 50 grams of crack but 5,000 grams of powder. The United

States Sentencing Commission—which is charged under the Sentenc-

ing Reform Act of 1984 with writing the Federal Sentencing Guide-

lines—incorporated the 1986 Drug Act’s 100-to-1 disparity into the

Guidelines because it believed that doing so was the best way to keep

similar 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 dis-

parity 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 for

the 10-year minimum from 50 to 280 grams, while leaving the pow-

der cocaine amounts intact. It also directed the Sentencing Commis-

sion to make conforming amendments to the Guidelines “as soon as

practicable” (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 District

Judge ruled that the Fair Sentencing Act’s 5-year minimum for sell-

ing that amount of crack did not apply to those whose offenses were

committed before the Act’s effective date. In No. 11−5683, petitioner

Dorsey unlawfully sold 5.5 grams of crack in 2008. In September

2010, the District Judge sentenced him to the 1986 Drug Act’s 10-

year minimum, finding that it applied because Dorsey had a prior

drug 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 ef-

fective date. The Seventh Circuit affirmed in both cases.

Held: The Fair Sentencing Act’s new, lower mandatory minimums ap-

ply 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 not

change the penalties “incurred” under that older statute “unless the

repealing 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 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. 398, 401. In contrast, the Sentencing Reform Act

says that, regardless of when the offender’s conduct occurs, the appli-

cable sentencing guidelines are the ones “in effect on the date the de-

fendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).

Six considerations, taken together, show that Congress intended

the Fair Sentencing Act’s more lenient penalties to apply to offenders

who committed crimes before August 3, 2010, but were sentenced af-

ter that date. First, the 1871 saving statute permits Congress to ap-

ply 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, ei-

ther expressly or by necessary implication, in a subsequent enact-

ment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465.

Hence, this Court has treated the 1871 Act as setting forth an im-

portant background principle of interpretation that requires courts,

before interpreting a new criminal statute to apply its new penalties

to a set of pre-Act offenders, to assure themselves by the “plain im-

port” or “fair implication” of the new statute that ordinary interpre-

tive considerations point clearly in that direction. Second, the Sen-

Cite 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 con-

cerns are present. Thus, new, lower Guidelines amendments apply to

offenders who committed an offense before the adoption of the

amendments but are sentenced thereafter. Third, language in the

Fair 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 promulgate

conforming amendments to the Guidelines that “achieve consistency

with other guideline provisions and applicable law.” Read most nat-

urally, “applicable law” refers to the law as changed by the Fair Sen-

tencing Act, including the provision reducing the crack mandatory

minimums. 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 be-

fore the new amendments’ effective date but were sentenced thereaf-

ter. Fourth, applying the 1986 Drug Act’s old mandatory minimums

to the post-August 3 sentencing of pre-August 3 offenders would cre-

ate sentencing disparities of a kind that Congress enacted the Sen-

tencing Reform Act and the Fair Sentencing Act to prevent. Fifth,

not to apply the Fair Sentencing Act would do more than preserve a

disproportionate status quo; it would make matters worse by creating

new anomalies―new sets of disproportionate sentences―not previous-

ly present. That is because sentencing courts must apply the new

Guidelines (consistent with the Fair Sentencing Act’s new mini-

mums) to pre-Act offenders, and the 1986 Drug Act’s old minimums

would 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 ef-

forts to create more uniform, more proportionate sentences. Sixth,

this Court has found no strong countervailing considerations that

would make a critical difference. Pp. 10−19.

(b) The new Act’s lower minimums also apply to those who commit-

ted an offense prior to August 3 and were sentenced between that

date and November 1, 2010, the effective date of the new Guidelines.

The Act simply instructs the Commission to promulgate new Guide-

lines “as soon as practicable” (but no later than 90 days after the Act

took effect), and thus as far as Congress was concerned, the Commis-

sion might have promulgated those Guidelines to be effective as early

as August 3. In any event, courts, treating the Guidelines as advi-

sory, possess authority to sentence in accordance with the new mini-

mums. Finally, applying the new minimums to all who are sentenced

after August 3 makes it possible to foresee a reasonably smooth tran-

4 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, va-

cated and remanded.

BREYER, J., delivered the opinion of the Court, in which KENNEDY,

GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dis-

senting 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 the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that 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 prison

sentences upon those convicted of federal drug crimes.

These statutes typically base the length of a minimum

prison term upon the kind and amount of the drug in-

volved. Until 2010, the relevant statute imposed upon an

offender who dealt in powder cocaine the same sentence it

imposed upon an offender who dealt in one one-hundredth

that amount of crack cocaine. It imposed, for example, the

same 5-year minimum term upon (1) an offender convicted

of possessing with intent to distribute 500 grams of pow-

der 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 the

crack-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 offend-

ers 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 minimum

provisions do apply to those pre-Act offenders.

I

The underlying question before us is one of congres-

sional intent as revealed in the Fair Sentencing Act’s lan-

guage, structure, and basic objectives. Did Congress

intend the Act’s more lenient penalties to apply to pre-Act

offenders sentenced after the Act took effect?

We recognize that, because of important background

principles of interpretation, we must assume that Con-

gress 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 determination

would seriously undermine basic Federal Sentencing

Guidelines objectives such as uniformity and proportional-

ity in sentencing. Indeed, seen from that perspective, a

contrary determination would (in respect to relevant

groups of drug offenders) produce sentences less uniform

and more disproportionate than if Congress had not en-

acted the Fair Sentencing Act at all. See infra, at 14–18.

Because our conclusion rests upon an analysis of the

Guidelines-based sentencing system Congress has estab-

lished, 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 Act

of 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 sentenc-

ing. 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 to

create 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 sen-

tencing 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, Sen-

tencing 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 the

judge to apply the intersection’s range in an ordinary case,

but they leave the judge free to depart from that range in

an 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 lev-

els 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 de-

pending upon the “specific” characteristics of the offender’s

behavior). 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-related

sentencing statute, the Anti-Drug Abuse Act (1986 Drug

Act), 100 Stat. 3207. That statute sets forth mandatory

minimum penalties of 5 and 10 years applicable to a drug

offender 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 dis-

tribute 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 of

possessing with intent to distribute only 5 grams of crack

(as compared to 500 grams of powder) and its 10-year

minimum to one convicted of possessing with intent to

distribute only 50 grams of crack (as compared to 5,000

grams of powder), thus producing a 100-to-1 crack-to-

powder ratio. §§841(b)(1)(A)(iii), (B)(iii) (2006 ed.).

The 1986 Drug Act, like other federal sentencing stat-

utes, 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 beyond

the maximum contained in the federal statute setting

forth the crime of conviction. Similarly, ordinarily no

matter what range the Guidelines set forth, a sentencing

judge 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 incorpo-

rated 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 the

lowest Guidelines range above the applicable mandatory

minimum. USSC, Report to the Congress: Mandatory

Minimum Penalties in the Federal Criminal Justice Sys-

tem 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 78

months (just above the 5-year minimum), and it associated

5,000 grams of powder cocaine with an offense level of 32,

which for a first-time offender meant a sentencing range

of 121 to 151 months (just above the 10-year minimum).

USSG §2D1.1 (Oct. 1987). Further reflecting the 1986

Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso-

ciated an offense level of 26 with 5 grams of crack and an

offense 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 Drug

Act’s mandatory minimums so that the resulting Guide-

lines sentences would remain proportionate to the sen-

tences for amounts that did trigger these minimums. 2011

Report 54. Thus, the Table associated 400 grams of pow-

der cocaine (an amount that fell just below the amount

triggering the 1986 Drug Act’s 5-year minimum) with an

offense 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). Follow-

ing the 100-to-1 crack-to-powder ratio, the Table associated

four grams of crack (an amount that also fell just below

the amount triggering the 1986 Drug Act’s 5-year mini-

mum) with an offense level of 24. Ibid.

The Commission did this not because it necessarily

thought that those levels were most in keeping with past

sentencing practice or would independently have reflected

a 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 satisfying

the Sentencing Reform Act’s basic “proportionality” objec-

tive. See Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov.

2011); 2011 Report 53–54, 349, and n. 845. For this rea-

son, the Commission derived the Drug Quantity Table’s

entire set of crack and powder cocaine offense levels by

using 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 propor-

tional offense levels for other drug amounts. Ibid.

B

During the next two decades, the Commission and

others in the law enforcement community strongly criti-

cized Congress’ decision to set the crack-to-powder manda-

tory minimum ratio at 100-to-1. The Commission issued

four separate reports telling Congress that the ratio was

too high and unjustified because, for example, research

showed the relative harm between crack and powder

cocaine less severe than 100-to-1, because sentences em-

bodying that ratio could not achieve the Sentencing Re-

form 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 traf-

fickers and low-level dealers) differently, and because the

public had come to understand sentences embodying the

100-to-1 ratio as reflecting unjustified race-based differ-

ences. Kimbrough, supra, at 97–98; see, e.g., USSC,

Special Report to the Congress: Cocaine and Federal Sen-

tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC,

Special Report to Congress: Cocaine and Federal Sentenc-

ing 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 recom-

mendations, 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 to

28 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 18-

to-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 Com-

mission to “make such conforming amendments to the

Federal sentencing guidelines as the Commission deter-

mines necessary to achieve consistency with other guide-

line provisions and applicable law.” §8(2), id., at 2374.

And it directed the Commission to “promulgate the guide-

lines, 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 Novem-

ber 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent

version 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 peti-

tioners, 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 was

subject to a 10-year mandatory minimum. 21 U. S. C.

§841(b)(1)(A)(iii) (2006 ed.). Hill was not sentenced, how-

ever, 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 of

crack 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 Sentencing

Act applied, he would have sentenced Hill to that Act’s 5-

year 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’s

effective 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 if

they were sentenced after that date. Hence, the judge sen-

tenced 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 previ-

ously 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, an

offender 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 Sen-

tencing 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 the

Fair 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 sentencing

statute, the Sentencing Reform Act, provides that a judge

shall apply the Guidelines that “are in effect on the date

the 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 sentenc-

ing Dorsey after the effective date of the Fair Sentencing

Act, Dorsey had committed the underlying crime prior to

that date. Id., at 69–70. And he concluded that the 1986

Drug Act’s old minimums, not the new Fair Sentencing

Act, applied in those circumstances. Ibid. He consequently

sentenced Dorsey to the 1986 Drug Act’s 10-year man-

datory 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 conclu-

sions 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 place

after, 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 position

that 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 opposite

directions. 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 criminal

statute shall not change the penalties “incurred” under

that older statute “unless the repealing Act shall so ex-

pressly 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” under

the 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.

Cite as: 567 U. S. ____ (2012) 11

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 says

that, 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 guideline

provisions 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 requires

that 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 lenient

penalties apply have found in that Act, together with the

Sentencing 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 denial

of rehearing en banc). We too take the latter view. Six

considerations, taken together, convince us that Congress

intended 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 this

saving 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 exempt

the current statute from the earlier statute, to modify the

earlier statute, or to apply the earlier statute but as modi-

fied. 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 either

expressly 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 subse-

quent enactment.” Great Northern R. Co., supra, at 465

(emphasis added). And in a comparable context the Court

has emphasized that the Administrative Procedure Act’s

use of the word “expressly” does not require Congress to

use any “magical passwords” to exempt a later statute

from the provision. Marcello v. Bonds, 349 U. S. 302,

310 (1955). Without requiring an “express” statement, the

Court has described the necessary indicia of congressional

intent by the terms “necessary implication,” “clear impli-

cation,” and “fair implication,” phrases it has used inter-

changeably. 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 later

statute directly conflicts with an earlier statute,” and, if

so, “the later enactment governs, regardless of its compli-

ance with any earlier-enacted requirement of an express

reference 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

Cite as: 567 U. S. ____ (2012) 13

Opinion of the Court

background principle when it enacts new criminal stat-

utes. E.g., Great Northern R. Co., supra, at 465; Hertz,

supra, at 217; cf. Marcello, supra, at 310. And the prin-

ciple requires courts, before interpreting a new criminal

statute to apply its new penalties to a set of pre-Act of-

fenders, to assure themselves that ordinary interpretive

considerations point clearly in that direction. Words such

as “plain import,” “fair implication,” or the like reflect the

need 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 con-

sider,” among other things, the “sentencing range” estab-

lished 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 pro-

hibit 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 conse-

quently instructed sentencing judges to “use the Guide-

lines Manual in effect on the date that the defendant is

sentenced,” regardless of when the defendant committed

the offense, unless doing so “would violate the ex post facto

clause.” USSG §1B1.11. And therefore when the Com-

mission 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 back-

ground 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 Sentenc-

ing Act entitled “Emergency Authority for United States

Sentencing Commission” requires the Commission to prom-

ulgate “as soon as practicable” (and not later than 90

days after August 3, 2010) “conforming amendments” to

the Guidelines that “achieve consistency with other guide-

line provisions and applicable law.” §8, 124 Stat. 2374.

Read most naturally, “applicable law” refers to the law as

changed by the Fair Sentencing Act, including the provi-

sion reducing the crack mandatory minimums. §2(a),

id., at 2372. As the Commission understood this provi-

sion, achieving consistency with “other guideline provi-

sions” means reducing the base offense levels for all crack

amounts proportionally (using the new 18-to-1 ratio), in-

cluding the offense levels governing small amounts of

crack that did not fall within the scope of the mandatory

minimum provisions. 75 Fed. Reg. 66191. And consis-

tency with “other guideline provisions” and with prior Com-

mission 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: Analy-

sis 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 Sentenc-

ing 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 differ-

ent sentences. For example, a first-time post-Act offender

with 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 have

to receive the 5-year mandatory minimum. Compare

USSG §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 of

imprisonment, while his otherwise identical pre-Act coun-

terpart 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 discrep-

ancies, the imposition of these disparate sentences in-

volves 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 been

found guilty of similar criminal conduct”); S. Rep. No. 98–

223, p. 74 (1983) (explaining rationale for using same,

current Guidelines for all roughly contemporaneous sen-

tencings). Further, it would involve imposing upon the

pre-Act offender a pre-Act sentence at a time after Con-

gress had specifically found in the Fair Sentencing Act

that such a sentence was unfairly long.

Finally, one cannot treat such problems as if they were

minor 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 the

approximately 5,000 federal crack offenders convicted

each year, many pre-Act offenders were not (and will not

be) 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 Guide-

lines (consistent with the Fair Sentencing Act’s new min-

imums) 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 of

possessing 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 so

small an amount. Yet under the old law, the Commission,

charged with creating proportionate sentences, had created

a Guidelines range of 41 to 51 months for such an of-

fender, 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 Com-

mission 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

Cite as: 567 U. S. ____ (2012) 17

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 of-

fender 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 of-

fender who possessed five grams would have to receive a

5-year sentence. See 21 U. S. C. §841(b)(1)(B) (2006 ed.,

Supp. IV).

For example, imagine that on July 1, 2010, both Smith

and Jones commit a crack crime identical but for the fact

that Smith possesses with intent to distribute four grams

of 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, would

here have created a new disparate sentencing “cliff.”

Nor can one say that the new Act would produce dispro-

portionalities like this in only a few cases. In fiscal year

2010, 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, one

can find many similar examples of disproportionalities.

See Appendix B, infra. Thus, application of the 1986 Drug

Act 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 considera-

tion. Amicus and the dissent argue that one might read

much of the statutory language we have discussed as

embodying exceptions, permitting the old 1986 Drug Act

minimums to apply to pre-Act offenders sentenced after

August 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 Drug

Act 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 Guide-

lines 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 offenders

will create a new disparity—one between pre-Act offenders

sentenced before August 3 and those sentenced after that

date. Post, at 9.

We do not believe that these arguments make a critical

difference. Even if the relevant statutory language can

be 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 in

fact 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

Cite as: 567 U. S. ____ (2012) 19

Opinion of the Court

new law changing sentences (unless Congress intends re-

opening sentencing proceedings concluded prior to a new

law’s effective date). We have explained how in federal

sentencing 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 offend-

ers sentenced after August 3 would make matters worse.

Supra, at 16–18. We consequently conclude that this

particular new disparity (between those pre-Act offenders

already sentenced and those not yet sentenced as of

August 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 have

discussed 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 3

and 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 Sentenc-

ing Act’s new mandatory minimums apply to them?

In our view, the new Act’s lower minimums apply to

them as well. Our reason is that the statute simply in-

structs 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 Congress

was 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 au-

thority 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) (amended

18-to-1 Guidelines made retroactive). In any event,

courts, treating the Guidelines as advisory, possess au-

thority 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, thereby

leaving 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 this

opinion.

It is so ordered.

Cite as: 567 U. S. ____ (2012) 21

Appendix A to opinionCourt Court

Opinion of the of the

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 to

release or extinguish any penalty, forfeiture, or liabil-

ity incurred under such statute, unless the repealing

Act shall so expressly provide, and such statute shall

be treated as still remaining in force for the purpose of

sustaining any proper action or prosecution for the en-

forcement 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 particu-

lar sentence to be imposed, shall consider . . . the

kinds of sentence and sentencing range established

for . . . the applicable category of offense committed by

the applicable category of defendant as set forth in

the 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 prac-

ticable, 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 Sen-

22 DORSEY v. UNITED STATES

Appendix A to opinionCourt Court

Opinion of the of the

tencing Act of 1987 (28 U. S. C. [§]994 note), as

though the authority under that Act had not expired;

and

“(2) pursuant to the emergency authority provided

under paragraph (1), make such conforming amend-

ments to the Federal sentencing guidelines as the

Commission determines necessary to achieve con-

sistency with other guideline provisions and appli-

cable law.”

Cite as: 567 U. S. ____ (2012) 23

Appendix B to opinionCourt Court

Opinion of the of the

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 re-

main 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 Guide-

lines for Category I Offenders with No Prior Drug Felonies

Drug Mandatory Guidelines Sentence

Quantity Minimum Range

1g 0 months 10–16 10–16

2g 0 15–21 15–21

3g 0 21–27 21–27

4g 0 21–27 21–27

5g 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’s

old triggering amounts of 5 grams and 50 grams (where

the old minimums would entirely trump the new Guide-

lines), resulting in radically different Guidelines sentences

24 DORSEY v. UNITED STATES

Appendix B to opinionCourt Court

Opinion of the of the

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 provided

two mechanisms through which an offender may escape

an otherwise applicable mandatory minimum, diminishing

this problem for some offenders. First, an offender may

escape a minimum by providing substantial assistance

in 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 provi-

sion 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 manda-

tory minimum. However, offenders with a criminal his-

tory category of II or higher are ineligible for “safety

valve” relief; they escape application of a minimum at a

much lower percentage. See 2011 Report 193 (Table 8–8).

Crack Offender Categories by Application of 1986 Drug Act

Mandatory Min. (FY 2010)

Total with Percent with

Quantity Quantity Total Percent

Carrying Carrying Relieved of Relieved of

Offender Total Mandatory Mandatory Mandatory Mandatory

Category Offenders Min. Min. Min. Appl. 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%

Cite as: 567 U. S. ____ (2012) 25

Appendix B to opinionCourt Court

Opinion of the of the

Yet similar sentencing anomalies would result for re-

peat offenders if the 1986 Drug Act’s minimums remain in

effect after the Fair Sentencing Act’s Guidelines became

effective. Take, for example, Category II offenders.

1986 Drug Act Minimums and Fair Sentencing Act Guide-

lines for Category II Offenders with No Prior Drug Felonies

Drug Mandatory Guidelines Sentence

Quantity Minimum Range

1g 0 months 12–18 12–18

2g 0 18–24 18–24

3g 0 24–30 24–30

4g 0 24–30 24–30

5g 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 account-

able for 5 to 22 grams of crack or for 50 to 195 grams,

the 100-to-1 minimums would entirely trump the 18-to-1

Guidelines, producing the same anomalies—dissimilar sen-

tences for similar quantities and similar sentences for dis-

similar quantities—described above.

In contrast, a scheme with the Fair Sentencing Act’s 18-

to-1 minimums and new Guidelines produces the propor-

tionality in sentencing that Congress intended in enacting

26 DORSEY v. UNITED STATES

Appendix B to opinionCourt Court

Opinion of the of the

the Sentencing Reform Act and the Fair Sentencing Act.

Fair Sentencing Act Minimums and Guidelines for Cate-

gory II Offenders with No Prior Drug Felonies

Drug Mandatory Guidelines Sentence

Quantity Minimum Range

1g 0 months 12–18 12–18

2g 0 18–24 18–24

3g 0 24–30 24–30

4g 0 24–30 24–30

5g 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 mandatory

minimum 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, effective

date. In my view, the general saving statute, 1 U. S. C.

§109, dictates that the new, more lenient mandatory

minimum 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 stat-

ute, 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 effect

to release or extinguish any penalty, forfeiture, or lia-

bility incurred under such statute, unless the repeal-

ing Act shall so expressly provide, and such statute

shall be treated as still remaining in force for the pur-

pose of sustaining any proper action or prosecution for

the enforcement of such penalty, forfeiture, or liabil-

ity.” 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 law

was in force, §109 directs that the prior law “shall be

treated as still remaining in force.”

Although §109 purports to require that subsequent

legislation opting out of its default rule must do so “ex-

pressly,” the Court correctly observes, ante, at 12, that

express-statement requirements of this sort are ineffec-

tive. See Lockhart v. United States, 546 U. S. 142, 147–

150 (2005) (SCALIA, J., concurring). Because “one legis-

lature cannot abridge the powers of a succeeding legisla-

ture,” 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). Conse-

quently, the express-statement requirement of §109 is

itself subject to repeal on the same terms as any other

statute, 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 these

cases as one of implied repeal helps to explain the Court’s

observation, ante, at 13, that what is required to override

§109’s default rule is a clear demonstration of congres-

sional intent to do so. Admittedly, our cases have not

spoken with the utmost clarity on this point. In Marrero,

for example, we suggested that a “fair implication” from

a 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 at

one point that §109 controls unless Congress expresses a

contrary intention “either expressly or by necessary impli-

cation in a subsequent enactment,” 208 U. S., at 465 (em-

phasis added), but suggesting at another point that a “fair

implication,” id., at 466, would do. In my view, the “fair

implication” formulation understates the burden properly

imposed on a defendant who would claim an implicit

exception from §109’s terms. Because the effect of such

an exception is to work a pro tanto repeal of §109’s appli-

cation 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 statute

establishing a background interpretive principle) only

when 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 come

close 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 continuing

to apply the prior mandatory minimums to pre-enactment

offenders would “involve imposing upon the pre-Act of-

fender a pre-Act sentence at a time after Congress had

specifically found in the Fair Sentencing Act that such a

sentence 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 criminal

statutes do not apply to pre-enactment conduct. Nor does

it matter that Congress has instructed district courts,

when applying the Federal Sentencing Guidelines, to ap-

ply the version in force on the date of sentencing, with

the object of reducing disparities in sentences between

similar defendants who are sentenced for the same con-

duct 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 among

congressional enactments, and when two statutes are ca-

pable of co-existence, it is the duty of the courts, absent

a clearly expressed congressional intention to the con-

trary, to regard each as effective.” Morton v. Mancari, 417

U. S. 535, 551 (1974). We may readily do so here by hold-

ing that §3553(a)(4)(A)(ii) applies to Guidelines amend-

ments, and §109 to statutory ones.

The Court also stresses that the Fair Sentencing Act

instructs 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 for

crack cocaine offenses to track the 18-to-1 crack-to-powder

ratio reflected in the new mandatory minimums, see 75

Fed. Reg. 66191 (2010), and because the general rule is

that 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 immedi-

ately, 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 is

the pre-Act mandatory minimums. It might therefore have

retained, as to those offenders, the existing Guidelines

ranges reflecting a higher crack-to-powder ratio. Although

rare, it is not unheard of for the Commission to establish

Guidelines whose application turns on the date of commis-

sion of the defendant’s offense. See United States Sen-

tencing Commission, Guidelines Manual §5E1.1(g)(1)

(Nov. 2011) (governing restitution for offenses committed

on 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 organiza-

tional defendants). Of course, the Commission did not

interpret the Fair Sentencing Act’s directive in this man-

ner. But the possibility that it could (not to mention

the probability that it should) have done so illustrates the

folly 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 Com-

mission’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 that

Congress necessarily expected the new mandatory mini-

mums 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 explana-

tion, noting that because of the lags associated with in-

vestigating and prosecuting drug offenses, most of the

defendants sentenced on the 91st day after the Fair

Sentencing Act’s enactment were sure to be pre-Act of-

fenders. 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 sen-

tenced under outdated Guidelines if the Guidelines were

not revised in short order.

The 11-month median time between indictment and

——————

1 Congressional reliance on future Commission action might be plau-

sible if the Commission had a settled practice of tying reductions in

statutory mandatory minimums to immediately applicable reductions

in Guidelines ranges, without any distinction based on the timing of

the defendant’s offense. But the Court does not cite any such settled

practice, and I am not aware of any. Presumably there has been no

occasion for a practice to develop either way, since congressional

legislation 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) (Table

D–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 to

simple possession of crack cocaine, see §3, 124 Stat.

2372—the equivalent figure was just 5.4 months from

indictment to sentencing. The pace of criminal cases also

varies considerably from district to district. In the East-

ern District of Virginia, for instance, the median time from

indictment to sentencing for all criminal cases was just 3.6

months. See Judicial Business, supra, at 252 (Table D–6).

What is more, without the Fair Sentencing Act’s emer-

gency 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

——————

2 In the ordinary course, the Commission may submit proposed

Guidelines amendments to Congress “at or after the beginning of a

regular session of Congress, but not later than the first day of May.” 28

U. S. C. §994(p). Unless disapproved by Congress, the proposed

amendments “take effect on a date specified by the Commission, which

shall be no earlier than 180 days after being so submitted and no

later 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 for

its 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—after

May 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 into

force until the very end of June 2011 at the earliest. And in all likeli-

8 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 Com-

mission can reasonably be understood as directed at this

mismatch problem, it creates no clear implication that

Congress 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 offend-

ers would lead to anomalous, disproportionate sentencing

results. It is true enough, as the Court notes, ante, at 16–

18, that applying the prior mandatory minimums in tan-

dem with the new Guidelines provisions—which track the

new, more lenient mandatory minimums—leads to a

series of “cliffs” at the mandatory minimum thresholds.

But this does not establish that Congress clearly meant

the new mandatory minimums to apply to pre-enactment

offenders. As noted above, supra, at 5–6, there is no rea-

son to take the Guidelines amendments ultimately prom-

ulgated by the Commission as a given when evaluating

what Congress would have understood when the Fair

Sentencing Act was enacted. The Commission could have

promulgated amendments that ameliorated this problem

by retaining the old Guidelines ranges for pre-enactment

offenders.

Moreover, although the cliffs produced by the mismatch

between Guidelines and statutory penalties are admittedly

inconsistent with the premise of the Guidelines system

that sentences should vary in proportion to the gravity

of 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 an

otherwise 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-Act

statutory penalties are so senseless as to establish that

Congress must not have intended them. Retaining the old

mandatory 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 sen-

tenced at the same time, but committed their offenses

at different times. In light of this plausible basis for con-

tinuing 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 ad-

ditional arguments which require only brief discussion.

They first contend that an intention to apply the new

mandatory minimums to pre-enactment offenders can be

inferred from §10 of the Fair Sentencing Act, 124 Stat.

2375, which instructs the Commission to study the effects

of 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 during

the study period, which would in turn undermine Con-

gress’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 on

an 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 no

retroactive 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., dissent-

ing), this argument from drafting history is unpersuasive.

That Congress considered and rejected a proposal that

would have delayed application of the Act until 180 days

after passage says nothing about whether the version

finally enacted applies to defendants whose criminal con-

duct pre-dated the Act. Moreover, the same bill would

have provided permissive authority for the Commission to

promulgate amended Guidelines on an emergency basis,

see §8(a), notwithstanding its delayed effective date provi-

sion. 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 the

canon of constitutional avoidance. But the rule of lenity

has no application here, because the background principle

supplied by §109 serves to remove the ambiguity that is a

necessary 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-to-

powder ratio under the prior law as having a racially

disparate impact, see, e.g., United States Sentencing

Commission, 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 Ar­

lington Heights v. Metropolitan Housing Development

Corp., 429 U. S. 252, 264–265 (1977); Adarand Construc­

tors, 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 “serious

constitutional 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 the

result in this particular case, but rather the unpredictabil-

ity it injects into the law for the future. The Court’s de-

cision 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 in

isolation, or even the relative importance of the various

considerations. One of them (the Commission’s emergency

authority to issue conforming amendments to the Guide-

lines) is a particular feature of the statute at issue in these

cases, but another (the fact that applying the prior statu-

tory penalties alongside the new Guidelines leads to a

mismatch) is a general feature of a sentencing scheme

that calibrates Guidelines ranges to the statutory manda-

tory minimums for a given offense. Are we to conclude

that, after the Sentencing Reform Act, §109 has no further

application to criminal penalties, at least when statutory

amendments lead to modification of the Guidelines? Por-

tions of the Court’s opinion could be understood to sug-

gest 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 the

federal criminal law, see 18 U. S. C. §§5–27 (2006 ed. and

Supp. IV), is to provide a stable set of background princi-

ples that will promote effective communication between

Congress and the courts. In this context, stability is en-

sured by a healthy respect for our presumption against

implied repeals, which demands a clear showing before we

conclude that Congress has deviated from one of these

background interpretive principles. Because the Court’s

12 DORSEY v. UNITED STATES

SCALIA, J., dissenting

result cannot be reconciled with this approach, I respect-

fully dissent.