This was a “novel question” the Third Circuit Court of Appeals answered on March 12, 2014 in the case of Jose Ortiz-Vega (“Ortiz”) who was convicted and given 108 months’ imprisonment for crack cocaine offenses. This sentence was imposed on June 6, 2004 after a guilty plea to multiple crack cocaine possession and distribution offenses.  Ortiz was also given a mandatory consecutive term of 60 months for possession of a firearm in furtherance of a drug trafficking offense as required under 18 U.S.C. § 924(c)(1)(A)(1).


At the time of Ortiz’s sentencing, 21 U.S.C. § 841(b)(1)(A)(iii) required a mandatory minimum penalty of 120 months. The Third Circuit in United States v. Ortiz-Vega noted that these mandatory provisions should have resulted to a sentencing range for Ortiz of 120-121 months. The sentencing judge, however, imposed the lesser 108 months because the Government did not seek the mandatory minimum. The Government did not want the mandatory minimum imposed as evidenced by its decision not to challenge the actual sentence imposed, not to seek resentencing, or to appeal the sentence within the prescribed time period.


The U.S. Congress in 2010 enacted the Fair Sentencing Act (“FSA”) designed to create a fair balance in the Federal cocaine sentencing process. The FSA lowered the mandatory minimum penalties for distribution of crack cocaine. In effect, the act reduced “the disparity in quantities triggering mandatory minimum sentences between crack cocaine and powder cocaine from 100:1 to approximately 18:1.” Congress granted the U.S. Sentencing Commission authority to establish “new guidelines” to “conform the Sentencing Guidelines with the FSA’s new penalty ratio.”


This was done in 2010 through what is known as Amendment 750 which was made retroactive and became effective November 1, 23011.


The Third Circuit pointed out that under the new retroactive guidelines, Ortiz’s offense level would be 30. “With the upward and downward adjustments already established,” the court said, “this would lead to a Guideline range of 78-97 months rather than 97-121 months for Ortiz.”


Pursuant to these retroactive modifications in the Sentencing Guidelines in crack cocaine cases, Ortiz sought a sentence modification under procedures authorized in 18 U.S.C. § 3582(c)(2). The Government opposed the request, telling the district court that Ortiz was not eligible for such a reduction because of the 120-month mandatory minimum that should have been imposed. The district court accepted the Government’s rationale—a decision that was, as the Third Circuit noted, “arguably consistent,” with the court’s 2009 controlling precedent in United States v. Doe.


To understand Doe, we must first examine Application Note 1A to Section 1B1.10 of the Sentencing Commission’s Policy Statement which provides that a sentence reduction under § 3582(c)(2) is “not consistent with the policy statement if … (ii) an amendment listed in subsection (c) is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another statutory provision (e.g., a statutory mandatory term of imprisonment).”


The U.S. Supreme Court in 2010 in Dillon v. United States made these policy statements binding on the courts, holding that “any reduction must be consistent with applicable policy statements issued by the Sentencing Commission.”


The district court in the Ortiz-Vega case took direction from Doe whose holding effectively rendered Ortiz ineligible for a sentence reduction because of the statutory minimum applicable in his case. Consistent with Doe, the district court concluded that the mandatory minimum sentence “subsumes and becomes the applicable guideline range for the Defendant.” In effect, the district found that because the Sentencing Commission’s policy statement ruled out a sentence reduction for Ortiz, it did not consider “Step One” in the § 3582(c)(2) analysis, i.e.,  whether Ortiz’s sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The court instead proceeded directly to “Step Two”—any sentence modification would be inconsistent with applicable policy statements of the Sentencing Commission.


The Third Circuit then explained why the district court’s rationale, along with Doe, was inapplicable:


“The District Court, in denying Ortiz-Vega’s motion for sentence reduction, relied on our decision in Doe. However, in the time after the District Court’s decision, this court held [in United States v. Savani (2013)] that Doe was superseded by statute. While, under Doe, the court understood the Sentencing Commission policy statement to require treating a mandatory minimum sentence as the ‘applicable guideline range’ whether or not the mandatory minimum was actually applied to the particular defendant, in Savani we held that this interpretation had been foreclosed by revisions to the guideline commentary. After the November 2011 revisions to the Guidelines, the commentary to § 1B1.10 now defines ‘applicable guideline range’ as ‘the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provisions in the Guidelines Manual or any variance.’ This suggest that ‘applicable guideline range’ in § 1B1.10 means the sentencing range corresponding to the defendant’s offense level and criminal history category, not in terms of a mandatory minimum sentence if the mandatory minimum was not actually imposed.”


This broad, though definitive conclusion forced the Third Circuit to focus on the underpinnings of the Government’s argument that Ortiz was ineligible for a sentence reduction because even though he had not seen sentenced to the mandatory minimum, he was eligible for it.


“After Savani, the District Court’s justification for denying Ortiz-Vega’s request for sentencing modification is no longer applicable. The government, however, asks us to distinguish this case from Savani on the grounds that the defendants in Savani were given sentences below the otherwise applicable mandatory minimum sentence because of substantial assistance departures, while this was not so in Ortiz-Vega’s case. While not a complete non sequitur, this argument is not, in the end, convincing. The plausible part of the government’s argument is that substantial assistance is one of the few explicit reasons for imposing a sentence below the statutory mandatory minimum authorized by 18 U.S.C. 3553(a). Imposing a sentence below the mandatory minimum is rarely, if ever, authorized on other grounds. But, the commentary language itself does not provide the limitation the government seeks, and we see no reason to read it back into the rule itself. The reason for not imposing the mandatory minimum sentence may be relevant when the district court decides whether to exercise discretion in granting a modification of sentence or not, but it is not part of the comment language itself, and it would be inappropriate to add this requirement to it.”


With these arguments out of the way, the appeals court turned its attention to a “Step One” analysis under § 3582(c)(2)—the requirement that a defendant be sentenced to a term of imprisonment “based on the sentencing range that has subsequently been lowered by the Sentencing Commission.” And this is where thicket of thorns grew thicker for the court. The Government argued that even though the mandatory minimum had not been imposed on Ortiz, he was “subject to” it, and therefore his sentence was not “based on a sentencing range that has subsequently been lowered.” Ortiz argued that while the mandatory minimum should have been applied, it was not, and therefore he was not “subject to” it, and thus his sentence was clearly “based” a sentencing range (crack cocaine guidelines) that were subsequently lowered.


The Third Circuit conceded both arguments were plausible, but the court said the “more plausible interpretation would require that the mandatory minimum actually be applied – that the defendant be subjected to it – for the defendant to be ineligible for modification under Step One. This interpretation fits better with the statutory language itself, since if a defendant is subjected to a mandatory minimum, he or she would not be given a sentence ‘based on a sentencing range that has subsequently been lowered.’ And, in Ortiz-Vega’s actual case, it is quite clear from the District Court’s sentencing hearing that he was given a sentence ‘based on a sentencing range that has subsequently been lowered.’ For this reason, it is clear that Ortiz-Vega meets the requirements of Step-One, allowing him to seek a sentence modification.”


Having reached that conclusion, the appeals court turned its attention to the final issue in Ortiz’s case: whether his case should be treated as a post-FSA  mandatory minimum case. The FSA not only changed the crack cocaine sentencing guidelines but also lowered several mandatory minimum sentences. The court said Ortiz was not entitled to a retroactive application of the FSA’s change to certain mandatory minimums. This conclusion is consistent with every Federal circuit court of appeals which has considered, and found, that the FSA mandatory minimums are not retroactive, i.e., that the “FSA mandatory minimums do not apply to defendants who committed their offenses and were sentenced prior to the enactment of the FSA in August, 2010.”


And this is where we part company with the Third Circuit, and all the other Federal circuits that have refused to apply the FSA mandatory minimums retroactively. It is our firm view that the refusal to grant retroactive application to the FSA mandatory minimums undermines the very purpose of the act itself: to restore fairness in the Federal cocaine sentencing process. Those defendants sentenced prior to August 2010 should enjoy all the benefits of the FSA as those sentenced after August 2010.