The opinion of the court was delivered by: Herndon, Chief Judge:
Now before the Court is Defendant's Motion and Memorandum in Support of Application of the Fair Sentencing Act of 2010 (Doc. 17). The Government responded to the Motion (Doc. 25), and Defendant has filed a further reply (Doc. 28). Defendant LaShawn L. Wilks contends that the Fair Sentencing Act of 2010 ("FSA"), enacted on August 3, 2010, should apply to him because he was indicted on the same day of the enactment and has not pled guilty or been convicted. If the FSA applies to such pending cases, then Defendant's alleged possession of more than five grams of crack cocaine would be punishable by a maximum of one year imprisonment, a minimum $1,000 fine, or both. 21 U.S.C. § 844(a) (2010). But if it does not, then the federal saving statute, 1 U.S.C. § 109, dictates that the previous version of the possession statute, 21 U.S.C. § 844(a) (2006 & Supp. III 2009), remains in force and Defendant would be punishable by a mandatory minimum sentence of five years.
The FSA does not expressly state that it applies retroactively, and the saving statute's narrow exceptions do not apply here. Moreover, the Seventh Circuit has already held that the FSA is not retroactive. This is not an issue for which the Court can exercise its discretion. It is a simple question of law. The Defendant's Motion is DENIED.
Defendant has been indicted for knowingly and intentionally possessing more than five grams of a mixture or substance containing cocaine base, known commonly as crack cocaine. The indictment charges that the time of the commission of the offense was on or about July 11, 2009 (Doc. 1). Defendant has not entered a guilty plea or gone to trial yet. At the time he allegedly committed the offense, the penalty for simple possession of a mixture of cocaine base over five grams provided for a minimum sentence of five years imprisonment. 21 U.S.C. § 844(a) (2006 & Supp. III 2009). This pre-FSA statute contained the following sentence:
"Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, . . . ."
Id. (emphasis added). However, on August 3, 2010, the Fair Sentencing Act of 2010 ("FSA") was enacted, which eliminated the above sentence and its minimum five-year prison term. Fair Sentencing Act of 2010, Pub. L. 111-220, § 3, 124 Stat. 2372, 2372. Thus, under the new statute as amended, Defendant would be subject to at most one year in prison. 21 U.S.C. § 844(a) (2010) ("Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, . . . .").
The general federal saving statute says:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability 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 enforcement of such penalty, forfeiture, or liability. 1 U.S.C. § 109. The Supreme Court explained the saving statute this way:
Congress enacted its first general saving provision, c. 71, 16 Stat. 432 (1871), to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of "all prosecutions which had not reached final disposition in the highest court authorized to review them." Common-law abatements resulted not only from unequivocal statutory repeals, but also from repeals and re-enactments with different penalties, whether the re-enacted legislation increased or decreased the penalties. To avoid such abatements-often the product of legislative inadvertence-Congress enacted 1 U.S.C. § 109, the general saving clause, . . . .
Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974) (citations omitted) (quoting Bradley v. United States, 410 U.S. 605, 607 (1973)). "[T]he saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of the offense." Id. at 661 (emphasis added). Further, it "extends beyond mere repeals and reaches amendments to criminal statutes as well, see United States v. Stillwell, 854 F.2d 1045, 1047--48 (7th Cir. 1988), unless the new law by its terms applies retroactively." United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010). According to the Seventh Circuit, the saving statute "operates to bar the retroactive application of the FSA." Id.
Defendant's first argument is that the FSA should apply to him because his case is still pending and he has not yet pled guilty or been tried (Doc. 17, p. 2; Doc. 28, p. 2). Thus he maintains his case is unlike Bell, in which the defendant had already been tried and sentenced. Bell, 624 F.3d at 807. Defendant also cites United States v. Kolterfor the proposition that new statutes should apply to pending cases like his, unless "manifest injustice would result or there is a statutory directive or legislative history to the contrary." 849 F.2d 541, 543 (11th Cir. 1988). ...