Downs v. United States, No. 16-5368 (KETHLEDGE, Suhrheinrich, Griffin).
In 2010, Petitioner pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine. On August 2, 2010, the district court orally pronounced a sentence of ten years’ imprisonment for Petitioner, the mandatory-minimum sentence for that crime at the time, and entered its judgment on August 16, 2010. The day after the sentencing hearing, the President signed the Fair Sentencing Act, which reduced the mandatory-minimum for the crime Petitioner committed to five years. Although initially the Act presumptively did not apply retroactively, the Supreme Court found in 2012 that the Act applied to defendants sentenced after August 3, 2010—the day after Petitioner was orally sentenced, but before his sentence was entered. Petitioner sought to vacate his sentence, arguing that he was not “sentenced” until the court entered its judgment on August 16, 2010. The district court denied the petition, and the Petitioner appealed.
The Sixth Circuit affirmed, holding that the date of a district court’s oral pronouncement of sentence is the date of sentencing. The Court reasoned that the law, including 18 U.S.C. § 3553 and the Federal Rules of Criminal Procedure, contemplates that “sentencing” occurs during the sentencing hearing. For example, a court is required to state its reasons for a sentence in open court “at the time of sentencing” and the defendant must be physically present “at sentencing,” which can only apply to the sentencing hearing. Because Petitioner was sentenced the day before the Act became effective, Petitioner’s sentence was not affected by the Act and was lawful. This is the case even though Petitioner’s coconspirators were sentenced after August 3, 2010, and therefore their sentences fell under the Act. The Sixth Circuit noted that “Congress with a few keystrokes could have included a retroactivity provision in the [Act] . . . . But we as judges are confined to what the law says.”