Eleventh Circuit Holds Fair Sentencing Act Must Be Applied When Defendant Convicted After Enactment – U.S. v. McIntosh

January 16, 2013 by David S. Seltzer

It seems clear that if a defendant is sentenced after the enactment of a law that changes how sentencing is done, the law should be applied to that sentencing. But in U.S. v. McIntosh, the Eleventh U.S. Circuit Court of Appeals ruled that James Leray McIntosh must be resentenced. The Fair Sentencing Act was enacted after McIntosh committed the offenses at issue, but before his sentencing. This law changed the U.S. Sentencing Guidelines in a way that should have resulted in a shorter sentence in this case, the court ruled. In its opinion, the Eleventh also rejected an argument from McIntosh that he should not have been sentenced at all, because of government errors that resulted in no indictment against him pending at the time of his sentencing.

McIntosh was indicted in 2007 on one count of possessing crack cocaine with intent to distribute, and one count of possessing a firearm incident to a drug crime. The events leading up to the indictment took place in 2005, but the indictment wrongly said they took place in February of 2007. That mistake was discovered after McIntosh had already pleaded guilty, but before his sentencing. Unfortunately, the government dealt with that mistake in a way that the Eleventh said created further problems: It created a second indictment with the correct dates and then had the district court dismiss the first indictment without prejudice. McIntosh responded by entering a conditional guilty plea on the new indictment, but reserving the right to appeal on double jeopardy grounds. In that appeal, prior to this one, the Eleventh Circuit agreed that the second indictment created double jeopardy and vacated the conviction. On remand, the prosecution set a sentencing hearing on the original indictment, but McIntosh objected because that indictment was no longer pending. Over several objections by McIntosh, the court re-sentenced him in December 2010 to the mandatory minimum from before the FSA.

McIntosh's appeal argued that his re-sentencing violated the Double Jeopardy Clause of the Constitution as well as the Fifth Amendment and others; it also argued that the district court had no further jurisdiction. The Eleventh Circuit rejected all of these arguments. On the double jeopardy argument, the court found that the dismissal of the original indictment did not withdraw McIntosh's guilty plea or terminate the case, as he argued, and thus his second conviction was not a second prosecution for the same crime. On the jurisdiction argument, the Eleventh said a defective indictment does not remove a court's jurisdiction. It found no Fifth Amendment problem because while the Grand Jury Clause of that amendment requires an indictment before a defendant may be “held to answer” for a serious crime, sentencing is not being “held to answer.” However, the Eleventh did find merit in McIntosh's argument that the court should have applied the Fair Sentencing Act, noting that the prosecution now thinks so too, after the Attorney General published an opinion requiring it. Thus, it upheld the conviction but remanded for resentencing.

The Fair Sentencing Act was a long-called-for attempt to make sentencing for drug crimes more egalitarian. The possession of crack cocaine used to be penalized more harshly than possession of powdered cocaine, with the result that crack defendants served more time for similar crimes than powdered cocaine defendants. Many people saw a racial dimension to this situation, since crack cocaine defendants are more likely to be African American. The Eleventh Circuit ruled in 2011 that post-FDA sentencing for pre-FSA crimes should use the FSA, and the U.S. Supreme Court later agreed, along with the Department of Justice. Unfortunately, the change left in place numerous other mandatory minimums for drug crimes, even possession crimes that affect no one else. At Seltzer Law, P.A., we aggressively defend clients accused of drug possession and other crimes subject to our country's draconian mandatory minimums.

If you're facing drug charges or any other criminal charges in south Florida, don't wait to call Seltzer Law, P.A., for a free consultation. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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