I 112th CONGRESS 1st Session H. R. 2316 IN THE HOUSE OF REPRESENTATIVES June 23, 2011 Mr. Scott of Virginia (for himself, Mr. Paul, Mr. Conyers, Mr. Bartlett, Mr. Hastings of Florida, and Mr. Ellison) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To apply reduced sentences for certain cocaine base offenses retroactively for certain offenders, and for other purposes.

1.

Short title

This Act may be cited as the Fair Sentencing Clarification Act of 2011.

2.

Findings

Congress finds as follows: (1)The Fair Sentencing Act of 2010 was signed into law by President Obama on August 3, 2010. (2)Most district courts in the United States are applying the Fair Sentencing Act to pending criminal cases, including United States v. Douglas, 746 F. Supp. 2d. 220 (D. Me. 2010), __ F. 3d. __, 2011 WL 2120163 (1st Cir. May 31, 2011); United States v. Raymond Brown, CR No. 10–135–GLL–1 (W.D. Pa. June 16, 2011); and United States v. Marlon Jermaine Spencer, CR No. 09–400–JW–1 (N.D. Cal. Nov. 30, 2010). (3)There are, however, district courts that are not applying the Fair Sentencing Act to pending cases, including United States v. Derrick Steven Clemons, CR No. 08–028–AJS–1 (W.D. of Pa. Nov. 18, 2010) and United States v. Anthony L. Jackson, CR No. 10–178–JRS–1 (E.D. Va. Nov. 19, 2010). (4)According to the U.S. Sentencing Commission’s analysis, 20,905 offenders would receive a reduction in their sentences if both the statutory changes and guideline changes were made retroactive, and the average sentence reduction would be 46 months, representing a savings of over $2.2 billion at an average incarceration cost of $28,284 per year, the latest yearly cost estimate from the Bureau of Prisons. (5)The purpose of this Act is to clarify that the amendments made by the Fair Sentencing Act are to be applied to pending cases and retroactively to cases that are no longer pending.

3.

Clarification of applicability with regard to pending cases

With respect to any offense for which the penalties were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111–220) and which was committed before the date of enactment of such Act, and notwithstanding the provisions of section 109 of title 1, United States Code— (1)in cases in which a sentence has not yet been imposed, the court shall impose such sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220) were in effect on the date the offense was committed; and (2)in cases in which a sentence has already been imposed, if subject to a pending appeal on or after August 3, 2010, the Court of Appeals shall remand the case for resentencing consistent with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220).

4.

Court may reduce term of imprisonment

In the case of a defendant who has been convicted of a crime committed before August 3, 2010, for which a term of imprisonment has been imposed, on motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the sentencing court may reduce the term of imprisonment for that crime consistent with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220) if such crime is— (1)punishable by a term of imprisonment under— (A)section 404(a) of the Controlled Substances Act for possession of a substance which contains cocaine base (21 U.S.C. 844(a)) (as in effect on the date of the commission of the crime); (B)section 401(b)(1)(A)(iii) of such Act (21 U.S.C. 841(b)(1)(A)(iii)) (as in effect on the date of the commission of the crime); or (C)section 401(b)(1)(B)(iii) of such Act (21 U.S.C. 841(b)(1)(B)(iii)) (as in effect on the date of the commission of the crime); or (2)punishable by a term of imprisonment under paragraph (1)(C) or (2)(C) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) (as in effect on the date of the commission of the crime).