Full opinion text
OPINION AND ORDER KENNETH M. KARAS, District Judge: Defendants William Anderson, Fred Cannon, James McCrae, and Pierre Myke, joined by co-defendants, move for an order from this Court declaring that the provisions of the Fair Sentencing Act of 2010 (“FSA” or “Act”) are applicable to their sentences in this case. (Dkt. Nos. 257, 268, 282, 296.) For the reasons stated herein, the motions are DENIED. I. Background A. Facts The forty-one Defendants in this case are charged in a three-count indictment, Count One of which alleges conspiracy to distribute and possess with intent to distribute controlled substances, specifically cocaine base (in a form commonly known as crack) and powder cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). (Indictment (Dkt. No. 2) ¶¶ 3-4, 7-8.) The Defendants are alleged to have been part of a drug conspiracy known as the “Santana Organization.” (Id. ¶ 1.) The “core members” of the organization — Defendants Elvis Santana, Danny Bueno, Angel Delacruz, and Emmanuel Martinez (id. ¶ 2)—are alleged to have supplied narcotics to various distributors, the other Defendants in the case, (id. ¶¶ 2-3, 5). The alleged conspiracy existed between February and October 2009. (Id. ¶ 6.) B. Procedural History Forty-three Defendants were indicted on October 22, 2009, and the indictment was unsealed one month later. (Dkt. Nos. 2, 3.) Since then, a number of the originally indicted Defendants have pled guilty, including some of the movants here, with some of those seeking adjournment of their sentences pending the Court’s determination of the pending motions. Others, who have not yet pled guilty, represent that the quantity of crack distribution for which they are alleged to be responsible means that their sentence could be lower if the FSA applies to them, and are, therefore, holding off on pleading guilty. For example, counsel for Defendant James McCrae represents that the government attributes 195 grams of crack cocaine to him, and depending on whether the FSA applies to him, he would face only a five-year mandatory minimum sentence (and not ten), and the low end of his Guideline range could vary by up to twenty-three months. (Letter from Thomas F.X. Dunn to the Court (Sept. 29, 2010) (“McCrae Br.”) (Dkt. No. 268) 1-2.) Defendant William Anderson is in a similar position, with his counsel representing that the highest quantity attributable to Anderson is 112 grams of a “mix” of crack and powder cocaine with crack constituting over 50 grams of that figure, and that Anderson will plead guilty if the FSA applies to him. (Decl. of Alexander E. Eisemann in Supp. of Mot. Regarding the Fair Sentencing Act of 2010 (“Eisemann Deck”) (Dkt. No. 297) ¶¶ 2, 4.) Thus, at least some of the defendants who have joined in these motions either have pled guilty and are awaiting sentence, or are holding off on a decision to plead guilty until they know what mandatory minimum sentences they face. The Court held oral argument on these motions on December 8, 2010. II. Discussion The question these motions present is whether the changes in the mandatory minimum sentences for cocaine trafficking offenses made in the FSA apply to the remaining Defendants in this case, who have not yet been sentenced but who have been convicted, or accused, of conspiring to distribute cocaine base prior to the passage of the Act. A. The 1986 Anti-Drug Abuse Act of 1986 and the FSA The FSA was enacted on August 3, 2010. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Prior to the Act’s passage, the sentencing provision applicable to the drug offenses alleged here, 21 U.S.C. § 841(b), equated 1 gram of crack cocaine or cocaine base with 100 grams of powder cocaine. See 21 U.S.C. § 841(b) (2009) (“§ 841(b)”); Kimbrough v. United States, 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Stevens, 19 F.3d 93, 96 (2d Cir.1994). When Congress enacted this “100-to-l ratio,” in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (“the 1986 Act”), it “considered cocaine base to be more dangerous to society than [powder] cocaine because of crack’s potency, its highly addictive nature, its affordability, and its increasing prevalence.” United States v. Buckner, 894 F.2d 975, 978 (8th Cir.1990); see also id. at 978-79 & n. 9 (detailing legislative history of the 1986 Act). Therefore, 21 U.S.C. § 841(b) provided for a mandatory minimum sentence of ten years for any offender convicted of a distribution-related crime involving 5 kilograms or more of powder cocaine or 50 grams or more of crack, and of five years for any offender convicted of the same involving 500 grams or more of powder cocaine and 5 grams or more of crack. 21 U.S.C. §§ 841(b)(1)(A)-(B) (2009). All but eighteen lawmakers voted in favor of this sentencing scheme in 1986. See Michael B. Cassidy, Examining Crack Cocaine Sentencing in a Post-Kimbrough World, 42 Akron L. Rev. 105, 111 (2009) (“Feeling pressure from the public to address the nation’s growing drug problem, Congress passed the [1986] Act in haste.”). The Sentencing Commission then incorporated the 100-to-l ratio into the Sentencing Guidelines for all crack and powder cocaine offenses. See id. at 111-12. Within a few years of the 1986 Act, a chorus of critics, including practitioners, public officials (including judges), and scholars, questioned Congress’s factual assumptions regarding the relative dangers of crack and powder cocaine and the extent to which trafficking in each drug is associated with violence. See, e.g., id. at 132-33 (noting that studies dating back to the 1990s challenged the factual premises of the 1986 Act); William W. Schwarzer, Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 S. Cal. L. Rev. 405, 409 (1992) (noting the view that there was inadequate evidence to substantiate the belief that crack was substantially more dangerous than powder cocaine). These authorities also have contended, as far back as the early 1990s, that the 100-to-l ratio produced significant racial disparities in sentencing, as the vast majority of crack defendants subject to the mandatory mínimums for offenses involving small quantities of the drug are and have been African-American. See, e.g., Kimbrough, 552 U.S. at 97-99, 128 S.Ct. 558 (describing reports of the United States Sentencing Commission calling into question the 100-to-1 ratio based on its disparate impact on minorities); Gerald W. Heaney, The Reality of Guidelines Sentencing; No End to Disparity, 28 Am. Crim. L. Rev. 161, 205-06 (1991) (noting data suggesting that one reason for disproportionately higher sentences for African-American offenders was the 100-to-1 ratio between crack and powder cocaine); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1285-1302 (1995) (arguing that the 1986 Act discriminates against African Americans); see also Lynette Clemetson, Judges Look to New Congress for Changes in Mandatory Sentencing Laws, N.Y. Times, Jan. 9, 2007, at A12 (“At a sentencing commission hearing in November, Judge Walton, associate director of the White House Office of National Drug Control Policy under the first President George Bush and a onetime supporter of tough crack cocaine sentences, said it would be ‘unconscionable [because of the resulting disparate impact on minority offenders] to maintain the current sentencing structure’ on crack cocaine.”). But see Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255, 1268-69 (1994) (criticizing equal protection objections to crack-cocaine sentencing ratios, in part on the argument that “[i]f it is true that blacks as a class are disproportionately victimized by the conduct punished by [such statutes], then it follows that blacks as a class may be helped by measures reasonably thought to discourage such conduct”). The Fair Sentencing Act represents Congress’s response to these concerns. See 156 Cong. Rec. S1680-81 (daily ed. Mar. 17, 2010) (statement of Sen. Richard Durbin) (“We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust”). The FSA’s stated purpose is to “restore fairness to Federal cocaine sentencing.” FSA pmbl. It attempts to effect this purpose by taking three actions relevant here. First and most importantly, section 2 of the Act raises the quantity of crack triggering the five- and ten-year mandatory minimum sentences from 5 to 28 grams for a mandatory five-year sentence and from 50 to 280 grams for a mandatory ten-year sentence. FSA § 2(a) (codified at 21 U.S.C. §§ 841(b)(1)(A)(ii) — (iii), (B)(ii)— (iii)). This change has the effect of replacing the 100-to-l ratio with an 18-to-1 ratio in sentencing treatment of offenses involving equivalent amounts of crack and powder cocaine. Second, section 3 eliminates entirely the mandatory minimum sentence that previously had been applicable to simple possession of crack. Id. § 3 (codified at 21 U.S.C. § 844(a)). Third, the Act directs the Sentencing Commission to promulgate “such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law” within ninety days of the Act’s enactment, Id. § 8. The Act makes a number of other changes to federal cocaine sentencing, including increases to fines for trafficking offenses, id. § 4, and directives to the Sentencing Commission to promulgate Guideline amendments providing for sentencing enhancements based on various aspects of an individual defendant’s conduct, id. §§ 5-6. The Act again grants the Commission “Emergency Authority” to implement these directives within ninety days. Id. § 8. The Commission has since exercised this authority, issuing a temporary amendment to §§ 2D2.1 and 2D2.2 of the Guidelines to reflect the FSA’s requirements effective November 1, 2010. See Notice of a Temporary, Emergency Amendment to Sentencing Guidelines and Commentary, 75 Fed. Reg. 66,188, 66,188 (Oct. 27, 2010). B. Ripeness Prior to oral argument, the Court raised the issue whether the questions presented by these motions are ripe for adjudication. Both sides at oral argument agreed that the motions are ripe for decision at least with respect to some Defendants. Ripeness is a justiciability doctrine the purpose of which is to “prevent[] a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur.” Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 226 (2d Cir.2008) (internal quotation marks omitted); see also Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Ripeness has both “constitutional” and “prudential” components. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., - U.S. -, 130 S.Ct. 1758, 1767 n. 2, 176 L.Ed.2d 605 (2010); N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 130-31 (2d Cir.2008). Ripeness may be raised on the Court’s own motion, see United States v. Fell, 360 F.3d 135, 139 (2d Cir.2004), and the Court is not bound by the positions of the parties on the issue. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Constitutional ripeness is concerned with “Article III limitations on judicial power.” Stolt-Nielsen, 130 S.Ct. at 1767 n. 2 (internal quotation marks omitted); see also Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). “[Constitutional ripeness] prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it.” Simmonds v. INS, 326 F.3d 351, 357 (2d Cir.2003). The inquiry essentially mirrors that governing Article III standing, and asks whether the question presents a “genuine ‘case or controversy.’ ” Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n. 7, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). A genuine ease or controversy exists if a plaintiff shows “an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling.” Horne v. Flores, - U.S. -, 129 S.Ct. 2579, 2592, 174 L.Ed.2d 406 (2009). Significantly for these motions, a claim is not ripe under this analysis “if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted). Prudential ripeness is “a tool” that courts use “to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of ... issues that time may make easier or less controversial.” Simmonds, 326 F.3d at 357. “In evaluating a claim to determine whether it is ripe for judicial review, [the courts] consider both ‘the fitness of the issues for judicial decision’ and ‘the hardship of withholding court consideration.’ ” Stolt-Nielsen, 130 S.Ct. at 1767 n. 2 (quoting Catholic Soc. Servs., 509 U.S. at 57 n. 18, 113 S.Ct. 2485); see also Simmonds, 326 F.3d at 359. An issue is “fit” for decision if its effects are “sufficiently direct and immediate,” Abbott Labs. v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), such that the question would not “benefit from further factual development of the issues presented,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 479, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (internal quotation marks omitted). Purely legal issues fall into this category, see id., but if further facts could develop that would narrow their scope, even pure legal questions might not be “fit” for decision, see Nat’l Park Hospitality Ass’n, 538 U.S. at 812, 123 S.Ct. 2026. The “hardship” requirement asks whether a party will suffer some present harm if the court postpones the decision of a given question. See Simmonds, 326 F.3d at 360; see also United States v. Johnson, 446 F.3d 272, 278 (2d Cir.2006) (“The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute the requisite hardship.” (internal quotation marks and alteration omitted) (emphasis in original)). While most of the remaining Defendants have made or joined the motions, their cases are at different stages depending on whether they have entered pleas of guilty or not guilty. Moreover, different amounts of crack and powder cocaine are attributed to each Defendant, potentially affecting the FSA’s applicability to their cases. A Defendant who is convicted, either at trial or via a plea, of an offense involving only powder cocaine or involving certain quantities of crack cocaine unaffected by the changed mandatory minimum thresholds will not be affected by the applicability of the FSA’s new mandatory mínimums to this case. Such Defendants lack standing to seek a declaration that it does apply, as they will suffer no injury from application of the pre-FSA statutory scheme. See Horne, 129 S.Ct. at 2592. Whether the Act applies to this case only makes a difference — at least with respect to the applicable mandatory minimum sentence — for those Defendants who have pled to, or stand accused of, offenses involving crack cocaine in amounts between 5 grams and 28 grams, and 50 grams and 280 grams. Defendants whose offenses fall into the former category will be subject to a five-year mandatory minimum only if the FSA is inapplicable, and Defendants whose offenses place them in the latter category will be subject to mandatory minimum of five years (rather than ten) if the Act applies. See FSA § 2(a). For such Defendants who have pled guilty and are awaiting sentencing, ripeness (and standing) will depend on the amount of crack to which they have admitted to distributing or conspiring to distribute. Among those Defendants who have joined in the motions, the motion is therefore ripe with respect to Defendants Emmanuel Martinez and Andre Rodriguez, who have admitted to offenses involving at least 50 grams of crack, and Omari Nelson, who has admitted to an offense involving a quantity of crack that could place him below the FSA’s new mandatory minimum thresholds. The sentences of these Defendants will be affected by whether the FSA applies in this case; indeed, Martinez and Nelson have requested that the Court postpone their sentences until the Court determines the applicability of the FSA to them. (Letter from Nicholas L. McQuaid, Ass’t U.S. Att’y, to the Court (Nov. 12, 2010) (Dkt. No. 328); Letter from John M. Rodriguez to the Court (Dec. 30, 2010) (Dkt. No. 379).) It is true that the Government attributes drug quantities to some Defendants far in excess of the amounts that would trigger the FSA’s mandatory minimum thresholds, and the precise quantity for which each Defendant is responsible will be determined in some cases at a sentencing hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978). But this Court could still depart from any Guidelines sentence suggested by a drug quantity higher than that to which the Defendants admitted in their pleas, and could do so below the 1986 Act’s mandatory mínimums if the FSA applies to these Defendants. Thus, the motion is ripe with respect to the above-listed Defendants. For those Defendants who have not yet been convicted of any offense, whether their sentences will ultimately be affected by the applicability of the FSA depends on a number of “contingent future events” that might not occur. Texas v. United States, 523 U.S. at 300, 118 S.Ct. 1257. A Defendant in this position might be acquitted, or might be convicted of an offense placing him outside of the categories of Defendants affected by these motions — Defendants convicted of offenses involving 5 to 28 grams or 50 to 280 grams of crack. That a defendant may be acquitted of a charge does not necessarily make pre-trial challenges to criminal statutes unripe. See, e.g., United States v. Quinones, 313 F.3d 49, 59-60 (2d Cir.2002) (noting that the Second Circuit has considered legal challenges to criminal statutes raised and decided by the district courts pre-trial, even though the defendants might never have been convicted); United States v. Cortes, 697 F.Supp. 1305, 1307-08 (S.D.N.Y.1988) (constitutional challenge to Sentencing Guidelines was ripe prior to trial for defendants who had pled not guilty). But this case does not involve defendants raising facial constitutional challenges to federal criminal statutes. Instead, some Defendants here seek to challenge a particular sentence that might be imposed if they are convicted of certain offenses involving certain quantities of crack. To decide such a question based on uncertain facts would be to issue an advisory opinion on a possible sentence a Defendant could face if certain facts are established. See, e.g., United States v. Ware, 709 F.Supp. 1062, 1063 (N.D.Ala.1989) (refusing to decide prior to trial whether a particular provision of the Sentencing Guidelines would apply to the conduct of which defendant was accused); see also Cheffer v. Reno, 55 F.3d 1517, 1523 (11th Cir.1995) (holding that Eighth Amendment challenges to sentences that could be imposed under certain statutes are not ripe until “the actual, or immediately pending, imposition of the challenged form of punishment”). In other words, a live controversy does not yet exist (and the issue is not yet “fit” for judicial decision) over the applicability of the FSA to Defendants who have not already pled guilty unless and until sufficient facts are developed or stipulated that resolve whether or not a particular Defendant will be affected by the Court’s ruling. Defendants Anderson, McCrae, Donald Taylor, and Jessie Fonseca each represent that the drug quantities attributed to them mean the FSA’s applicability will affect their potential sentences. McCrae represents that the Government attributes 195 grams of crack cocaine to him (McCrae disputes that figure), and that he would not qualify for the safety valve provision of 18 U.S.C. § 3553(f). (McCrae Br. 1.) If the Government proves its case against McCrae, therefore, his offense will fall squarely within the category affected by the FSA’s changed mandatory minimum sentences; McCrae would be subject to a mandatory ten-year sentence under the 1986 Act, but only a mandatory five-year sentence under the FSA. Similarly, Anderson represents that the “highest drug weight” attributable to him is a mix of 112 grams of crack and powder cocaine, with over 50 grams consisting of crack. (Eisemann Decl. ¶ 2.) Taylor represents that the Government attributes 52 grams of crack to him. (Letter from Martin J. Siegel to the Court (Sept. 27, 2010) (Dkt. No. 272).) Finally, Fonseca represents that “his relevant conduct is less than 28 grams of cocaine base,” and therefore that under the FSA he would not be subject to any mandatory minimum penalty. (Letter from Marilyn S. Reader to the Court (Sept. 23, 2010) (Dkt. No. 262).) As to hardship, these Defendants face the choice whether to plead guilty instead of going to trial. Courts are split on the question whether uncertainty as to a plea constitutes sufficient “hardship” to make a given issue ripe. There is certainly a viable argument that a question of law relating to a defendant’s potential mandatory minimum sentence must be resolved prior to trial in the case of a Defendant considering a guilty plea, both because Federal Rule of Criminal Procedure 11 requires the Court to advise the defendant before accepting a plea of “any mandatory minimum penalty,” Fed.R.Crim.P. ll(b)(l)(I), and because of the requirement that a plea is only valid if knowingly and intelligently made. See United States v. Sanders, No. 88-CR-141, 1988 WL 107377, at *1 (N.D.Ill. Oct. 4, 1988) (question whether defendant’s prior attempted burglary was a “violent felony” under 18 U.S.C. § 924(e)(1), the application of which would trigger mandatory minimum sentence, was ripe for decision prior to trial); cf. Cortes, 697 F.Supp. at 1307-08 (“hardship” requirement for ripeness was established because delaying a decision on constitutionality of Sentencing Guidelines would deprive the defendant of the ability to make an intelligent decision regarding whether to plead guilty). But see United States v. Bogle, 689 F.Supp. 1121, 1127-28 (S.D.Fla.1988) (constitutional challenge to Guidelines ripe only with respect to those defendants who had pled guilty, not those not yet convicted; “[ijnsofar as the defendant faces a hardship from deferring a decision [whether to plead guilty] until the dispute has become concrete, that dilemma is no different from any other legal issue as to which a defendant might [desire] but is not entitled in advance to a judicial determination,” id. at 1128). The Court need not resolve this question in this case, however, because Defendant Anderson has, through counsel, represented that he will plead guilty if the Court declares the FSA applicable in his case. (Eisemann Decl. ¶ 4; Dec. 8, 2010 Oral Argument Tr. 53.) Anderson is, therefore, in essentially the same position as the Defendants who have pled guilty and who await sentencing. The question is fit for adjudication because no contingencies exist (other than the possibility of acquittal if he chose to go to trial) that would render a decision as to the FSA’s applicability to him advisory, and no further facts will be established by delay in the Court’s decision. The motions are ripe with respect to Martinez, Rodriguez, Omari Nelson, and Anderson. The Court will therefore decide the merits of the motions “limited to [the] facts” relevant to these Defendants. United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 91-92, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (in constitutional challenge to Hatch Act and civil service rules promulgated thereunder, only one federal employee’s affidavit alleged sufficient facts for the Court to conclude that enforcement of the act as to him would be likelier than purely speculative; Court decided merits of only his claim). In this case, however, because no material facts differ among all Defendants — each is alleged to have committed his crime at the same time, and each has yet to be sentenced — the upshot will be that the Court’s decision with respect to the above-listed Defendants will apply fully to any other Defendants in this case for whom the issue might become ripe in the future. And, because all moving Defendants have adopted the arguments raised in the memoranda submitted by Defendants Anderson, Cannon, McCrae, and Myke, the Court will address these arguments in this Opinion. C. The Abatement Doctrine and the Federal Saving Statute “At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. Abatement by repeal included a statute’s repeal and re-enactment with different penalties. And the rule applied even when the penalty was reduced.” Bradley v. United States, 410 U.S. 605, 607-08, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) (citations omitted). The abatement doctrine, as true of many common law doctrines, had its roots in English law. See Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121-24 (1972) (hereinafter “Comment, Today’s Law ”). However, its application in American law proved particularly problematic because of “the interplay of the Constitution’s ex post facto clauses.” Id. at 124. If legislation amended, repealed, or re-enacted previous legislation without a savings clause, conviction under the old statute was prohibited under the abatement doctrine, while conviction under the new statute, if it increased punishment, was barred by the ex post facto clauses. See id. at 124-25; John P. MacKenzie, Comment, Hamm v. City of Rock Hill and the Federal Savings Statute, 54 Geo. L.J. 173 (1965) (noting that the abatement doctrine “has often provided an escape hatch for an accused fortunate enough to have his offense made the subject of stiffer penalties.”). The legislative reaction to this doctrine, from both the states and federal government, was the enactment of general savings legislation that would apply, in varying ways, to laws that repealed, amended, or re-enacted previous legislation, the result of which was to shift the presumption towards non-abatement in the absence of contrary legislative intention. See Comment, Today’s Law, supra, at 127. For example, most states adopted general savings statutes (many applying to civil and criminal enactments), see id. at 127-28, while a handful have incorporated savings provisions in their constitutions, see id.; see also Fla. Const. art. 10, § 9; N.M. Const. art. 4, § 33; Okla. Const. art. 5, § 54. Most of these statutory fixes provide that a “legislative change in a statute will not extinguish penalties, rights, or liabilities accrued or incurred under the original law.” Comment, Today’s Law, supra, at 128 (canvassing state laws). However, under some state savings statutes, while new legislation does not abate a prosecution itself, a reduction in punishment may apply to those whose conduct pre-dates the new law but who have yet to be sentenced. See, e.g., Ohio Rev.Code Ann. § 1.58(B) (West 2010) (providing that if any penalty “is reduced” by new legislation, the new law shall apply if sentence has not been imposed); Vt. Stat. Ann. tit. 1, § 214(c) (West 2010) (“If the penalty or punishment for any offense is reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the act or provision as amended unless imposed prior to the date of the amendment.”); Va.Code Ann. § 1-239 (West 2010) (providing that a new law mitigating punishment may, “with the consent of the party affected, be applied to any judgment pronounced after the new [law] takes effect”); Ferdinand v. Dormire, 212 F.3d 473, 476 (8th Cir.2000) (holding that habeas petitioner was entitled to benefit from post-offense reduction in punishment under then-existing version of Missouri’s savings statute only up until judgment); State v. Flagg, 160 Vt. 141, 624 A.2d 864, 865 (1993) (holding that Vermont’s savings provision required application of reduced penalty as provided by new version of law when new law pre-dated offender’s sentence); People v. Denier, 76 Ill.App.3d 214, 31 Ill.Dec. 755, 394 N.E.2d 1073, 1075 (1979) (noting that Illinois’ savings statute operated to allow yet-to-be-sentenced defendants who consent to being sentenced under new law); Jones v. Commonwealth, 104 Ky. 468, 47 S.W. 328 (K.y.Ct.App.1898) (same application of Kentucky’s savings statute). Congress took its own path to override the common law abatement rule in 1871 by enacting the so-called “general saving statute.” See Act of Feb. 25, 1871, ch. 71, § 4, 16 Stat. 431, 432 (codified as amended at 1 U.S.C. § 109); see also Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). The current version of this statute provides in relevant part: 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 (hereinafter “ § 109” or “Saving Statute”). In United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888), the Supreme Court held that the words “penalty,” “forfeiture,” and “liability” in the Saving Statute applied both to criminal offenses and the punishment for violations of those offenses. See also United States v. Smith, 354 F.3d 171, 175 (2d Cir.2003) (noting that “sentencing is an integral part of the ‘prosecution’ of the accused, as that term is used in § 109, and therefore that § 109 saves sentencing provisions in addition to substantive laws”); Lovely v. United States, 175 F.2d 312, 317 (4th Cir.1949) (noting that “punishment” is synonymous with “penalty,” and that “liability” and “forfeiture” are synonymous with “punishment”). Thus, where § 109 applies, changes in the criminal law not only save prosecutions initiated pursuant to the prior criminal prohibition, but also any sentence that could be imposed under the old law. However, as is clear from its plain language, and unlike some of the aforementioned state statutes, § 109 contains no provision exempting new statutes reducing punishment from its reach. Not surprisingly, then, the overwhelming consensus among the courts has been that, if it applies, § 109 bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Marrero, 417 U.S. at 661, 94 S.Ct. 2532; see also United States v. Klump, 536 F.3d 113, 120 (2d Cir.2008) (holding that defendant was properly sentenced to ten-year mandatory minimum under old law, and not the five-year minimum under the new law, even though the old law “had expired before [defendant] was sentenced”); Jones v. United States, 327 F.2d 867, 870 (D.C.Cir.1963) (holding that the new statute allowing for life imprisonment, in lieu of capital punishment, did not apply to defendant awaiting execution, in part applying § 109 and noting that the new law “contained no language applying its ameliorating provisions to previously committed offenses”); United States v. Kirby, 176 F.2d 101, 104 (2d Cir.1949) (affirming district court’s sentence post-dating ameliorative statute for conduct committed while old law was in effect); Maceo v. United States, 46 F.2d 788, 789 (5th Cir.1931) (holding that offender who committed crime before Congress reduced maximum sentence for sale of liquor received no benefit under predecessor to § 109). As the Fourth Circuit has observed, in describing the difference between the federal Saving Statute and some of its state counterparts: Our attention is called to statements and cases setting out such broad principles as the court should sentence in accord with the law in existence at the time of sentence, or where a later statute mitigates punishment for an offense, the accused may elect whether he is to be sentenced under the old or the new statute. These are of little help in the instant case for here we are dealing, not with broad general principles but with the interpretation of definite words in a specific federal statute. Lovely, 175 F.2d at 317 (citations omitted). In other words, under § 109, there is no basis to parse application of a new statute retroactively, that is, to individuals already sentenced under the old law, as distinct from applying it retrospectively, that is, to individuals yet to be sentenced as of the enactment of the new law but whose criminal conduct pre-dates the new law. Instead, under the plain language of § 109, unless Congress expressly provides otherwise in the new law, the Saving Statute means that an offender whose conduct predates the new law is to be prosecuted and sentenced under the old law. See Smith, 354 F.3d at 173 (noting that “relevant Supreme Court and Second Circuit case law supports the Government’s contention that it is the law at the time of the offense ... that governs”). Any doubt on this question was resolved nearly four decades ago when the courts applied the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“the 1970 Act”), which, among other things, eliminated a mandatory five-year minimum for certain narcotics offenses. In United States v. Stephens, 449 F.2d 103 (9th Cir.1971), the Government sought a writ of mandamus where a district judge imposed a five-year sentence (as required by the pre-1970 Act law), but then suspended the sentence in light of the recently enacted 1970 Act. In denying the writ, the Ninth Circuit held that the prosecution ended with the judgment of conviction, which was valid under the old law, but that “[w]hat occurs thereafter — the manner in which judgment is carried out, executed or satisfied, and whether or not it is suspended— in no way affects prosecution of the case.” 449 F.2d at 105. Indeed, according to the Stephens court, a suspended sentence “reflect[ed] the current view that probation should be available for these offenses,” and “[allowing it here permits a salutary tempering of the arbitrariness which otherwise would result from hewing to a cut-off date in transition from old to new law and an approach to evenhanded dispensation of justice not otherwise available.” Id. at 106. The Ninth Circuit therefore concluded that it “fail[ed] to see how the public interest would be served by straining for a statutory construction that would achieve a contrary result.” Id. Stephens met a chilly response out East. In United States v. Ross, 464 F.2d 376 (2d Cir.1972), for example, the Second Circuit held that in previous decisions it had “specifically rejected” the notion that the 1970 Act applied to defendants not yet sentenced for conduct that pre-dated its enactment. 464 F.2d at 378-79 (citing United States v. Singleton, 460 F.2d 1148, 1155 (2d Cir.1972) and United States v. Fiotto, 454 F.2d 252, 254-55 (2d Cir.1972)). In particular, the Second Circuit noted that “[wjhile it may plausibly be argued that § 109 refers only to persons already sentenced, the contrary construction seems to us more reasonable.” Id. at 379. Instead, the Second Circuit maintained its long-held view that if § 109 applies, an individual is to be sentenced under the law in place at the time of the offense conduct. See id. at 380 (citing United States v. Taylor, 123 F.Supp. 920 (S.D.N.Y.1954), aff'd, 227 F.2d 958 (2d Cir.1955)). A similar sentiment was expressed by the First Circuit in United States v. Bradley, 455 F.2d 1181 (1st Cir.1972), in which the court rejected the defendants’ claim, itself based on Stephens, that “since the 1970 Act was in force when they were sentenced, the court should not have felt constrained by” the old law. 455 F.2d at 1190. And, most tellingly, the split among these circuits was resolved in Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), in which the Supreme Court sided with the First and Second Circuits. In so doing, Justice Marshall expressly concluded, relying in part on § 109, that the “mandatory minimum sentence of five years must ... be imposed on offenders who violated the law before [the 1970 Act was enacted].” 410 U.S. at 611, 93 S.Ct. 1151. The import of § 109 is that, unless the repealing statute “expressly provide[s]” otherwise, a defendant may, pursuant to a statute that has been repealed, be prosecuted and, if convicted, sentenced for any offenses committed prior to the effective date of the repealing act. To be sure, in determining whether a new statute is to apply retroactively, the courts are not to substitute the Saving Statute for the clear intent of Congress to retroactively apply subsequent legislation. Congress could “expressly provide” that a new law should apply to defendants accused of committing pre-enactment offenses, or certain categories thereof (such as those who have yet to be sentenced). But, the Supreme Court long ago emphasized that the Saving Statute is “to be treated as if incorporated in and as a part of subsequent enactments, and therefore under the general principles of construction requiring, if possible, that effect be given to all the parts of a law, the section must be enforced unless, either by express declaration or necessary implication, arising from the terms of the law as a whole, it results that the legislative mind will be set at naught by giving effect to [the Saving Statute].” Great N. Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 318, 52 L.Ed. 567 (1908) (emphasis added); see also Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 54 L.Ed. 1001 (1910) (“[W]e must take that general saving clause into consideration as a part of the legislation involved in the determination of whether a ‘liability’ had been incurred by the imposition of a tax prior to the act that destroyed the law under which it had been imposed.”). Thus, the interpretive exercise does not involve considering the new legislation in a vacuum. Instead, § 109 “expressly provides that Congress will indicate exceptions to the effect of the saving statute in the repealing statute.” United States v. Jacobs, 919 F.2d 10, 13 (3d Cir.1990). D. The Interplay Between the Saving Statute and the FSA 1. The Current Caselaw The FSA clearly “repealed]” that portion of 21 U.S.C. § 841(b) adopted in the 1986 Act that set forth the 100-to-1 ratio and the mandatory minimum sentences attached to the relevant drug quantities. It is equally clear, and both sides agree, that nothing in the FSA “expressly provides” that the “penalties], forfeiture, or liabilities] incurred” under the prior version of § 841(b), the version in force at the time of the offense conduct here, should abate upon the FSA’s passage. Nor is there any dispute that it would have been easy for Congress to have expressly provided that the FSA should apply either to those not yet sentenced as of its enactment, or even to all who might still be serving sentences under the 1986 Act. See Taylor, 123 F.Supp. at 923 (“Had Congress so intended it could readily have made available as to those guilty of offenses committed prior to the effective date of the [repealing] Act the benefit of the reduced penalty.”). Recognizing this, a number of courts to have confronted the question — and all of the Courts of Appeals to have done so— have concluded that the FSA has no retroactive application to offenses committed prior to its enactment. See, e.g., United States v. Finch, No. 10-1157, 630 F.3d 1057, 1062-63, 2011 WL 31517, at *4 (8th Cir. Jan. 6, 2011); United States v. Patillo, No. 08-3473, 403 Fed.Appx. 761, 767-68, 2010 WL 5018228, at *5 (3d Cir. Dec. 9, 2010) (unpublished); United States v. McAllister, No. 10-4387, 401 Fed.Appx. 818, 820 n. *, 2010 WL 4561395, at *1 n. * (4th Cir. Nov. 12, 2010) (unpublished) (citing § 109); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute’ ... requires us to apply the penalties in place at the time the crime was committed.”); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (same, citing § 109); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (same); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (same); see also United States v. Dickey, No. 09-CR-34, 759 F.Supp.2d 654, 659-61, 665, 2011 WL 49585, at *6-7, *11 (W.D.Pa. Jan. 4, 2011) (holding that § 109 preserves the penalties in place prior to the FSA for preFSA conduct and declining to apply the FSA retroactively); United States v. Patterson, No. 10-CR-94, 2010 WL 5480838, at *1-2 (S.D.N.Y. Dec. 30, 2010) (same); United States v. Crews, No. 06-CR-418, 755 F.Supp.2d 666, 666-68, 671-72, 2010 WL 5178017, at *1, *5 (W.D.Pa. Dec. 20, 2010) (same); United States v. Tejeda, No. 07-CR-502, - F.Supp.2d -, -, 2010 WL 4967977, at *2 (S.D.N.Y. Dec. 2, 2010) (holding that defendant was to be sentenced under the mandatory minimum in place at time of defendant’s offense, “rather than the more lenient scheme adopted by the FSA”); United States v. Holmes, No. 10-CR-110, 2010 WL 4961657, at *4 (E.D.Va. Dec. 1, 2010) (agreeing “with the overwhelming weight of authority” and holding that “the FSA’s reduced penalty provisions do not retroactively apply to offenses committed prior to enactment of the FSA”); United States v. Hernandez, No. 02-CR-1213, 2010 WL 4683573, at *2 (S.D.N.Y. Nov. 17, 2010) (defendant not entitled to reduction of sentence pursuant to FSA because § 109 “bar[s] the retroactive application of the FSA, since the FSA does not ‘expressly provide’ that it has ‘the effect to release or extinguish’ the previous penalty.”). The Second Circuit has joined this consensus: [T]he FSA contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language. As a result, the FSA cannot be applied to reduce Appellant’s sentence because, inter alia, he was convicted and sentenced before the FSA was enacted.... “Because the FSA took effect after appellant committed his crimes 1 U.S.C. § 109 bars the Act from affecting his punishment.” United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam) (alterations omitted) (quoting Gomes, 621 F.3d at 1346); see also United States v. Glover, No. 09-CR-1725, 398 Fed.Appx. 677, 680-81, 2010 WL 4250060, at *2 (2d Cir. Oct. 27, 2010) (summary order) (“The Act contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language. See 1 U.S.C. § 109 Consequently, we must apply the mandatory minimum in effect at the time [the defendant] committed the offense in question”). Other courts have reached the same conclusion with respect to the FSA’s retroactive effect (or lack thereof) without referencing § 109. See, e.g., United States v. Hall, No. 09-10216, 403 Fed.Appx. 214, 217, 2010 WL 4561363, at *3 (9th Cir. Nov. 10, 2010) (unpublished); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010). Defendants note that in each of these circuit court cases, the defendant seeking the application of the FSA to his conduct had been sentenced prior to the FSA’s passage. As Defendant Anderson points out, there are a number of different classes of cases to which the Act might potentially be applied — for instance, cases involving defendants who had been sentenced prior to August 3, 2010, defendants who had been convicted prior to August 3, 2010, but not yet sentenced, and defendants who had been indicted prior to August 3, 2010, but neither convicted nor sentenced. (Mem. of Law in Supp. of Def. William Anderson’s Mot. Regarding the Fair Sentencing Act of 2010 (“Anderson Mem.”) (Dkt. No. 298) 2 n. 1.) Amicus contends that it is “reasonable and sensible” to decline to apply the act to those defendants sentenced prior to its enactment, but to apply the act to sentences going forward. (Letter from Prof. Douglas A. Berman to the Court (Nov. 30, 2010), attached as Ex. 1 to Second Supplemental Decl. of Alexander E. Eisemann Regarding Amicus Reply Filed in Supp. of Mot. Regarding the Fair Sentencing Act of 2010 (“Berman Amicus Reply”) (Dkt. No. 339) 2.) It is partly on this basis that several district courts have issued recent decisions concluding that the FSA does apply to those defendants who committed offenses prior to the Act’s passage but who were still awaiting initial sentencing on August 3, 2010. See, e.g., United States v. English, No. 10-CR-53, 757 F.Supp.2d 900, 903-04, 2010 WL 5397288, at *3 (S.D.Iowa Dec. 30, 2010); United States v. Whitfield, No. 10-CR-13, 2010 WL 5387701, at *2 (N.D.Miss. Dec. 21, 2010); United States v. Gillam, No. 10-CR-181-2, 753 F.Supp.2d 683, 690-91, 2010 WL 4906283, at *7 (W.D.Mich. Dec. 3, 2010); United States v. Douglas, No. 09-CR-202, 746 F.Supp.2d 220, 230-31, 2010 WL 4260221, at *6 (D.Me. Oct. 27, 2010); Transcript of Sentencing, United States v. Garcia, No. 09-CR-1054 (S.D.N.Y. Nov. 15, 2010) (submitted as Ex. 2 to First Reply Mem. of Law in Supp. of Pretrial Mots. for Def. Pierre Myke (“Myke Reply”) (Dkt. No. 335) (hereinafter “Garcia Sent. Tr.”)); see also United States v. Watson, No. 09-CR-00055, 2010 WL 4507374, at *1 (E.D.Ark. Nov. 2, 2010) (suspending sentencing and ordering supplemental briefing in light of Douglas). The leading case adopting this position is Judge Hornby’s decision in Douglas, which most courts taking this view follow. Douglas noted the weight of authority supporting the conclusion that the FSA does not apply to criminal conduct occurring prior to August 3, 2010, but stated that “[u]nlike this case, ... all those defendants had already been sentenced before August 3, 2010.” Douglas, 746 F.Supp.2d at 224-26, 2010 WL 4260221, at *3; see also United States v. Butterworth, No. 06-CR-62, 2010 WL 4362859, at *1 (D.Me. Oct. 27, 2010) (Hornby, J.) (distinguishing Douglas in denying motion to amend sentence because Butterworth defendant had already been sentenced prior to August 3, 2010). Judge Scheindlin in Garcia came to a similar conclusion, largely following Douglas. Garcia Sent. Tr. at 9-10 (“[The Government’s] position seemed to rely so heavily on these circuit cases which were easily distinguishable. These are sentences that are already imposed and people want to vacate sentences based on the new law. That is surely a different issue.”); see also id. at 12 (adopting Douglas opinion). Finally, a few courts have, in dicta, made statements supporting the existence of a distinction between defendants sentenced before or after August 3, 2010. See Lewis, 625 F.3d at 1228 (“[The FSA] is not ... retroactive and thus does not apply to this case. It does, on the other hand, relegate this case to a relatively short shelf-life, inasmuch as defendants being sentenced henceforth will be sentenced under a different applicable ratio.”); United States v. Trice, No. 06-CR-20364, 2010 WL 3504546, at *2 n. 2 (E.D.Mich. Sept. 7, 2010) (“Notably, if Defendant were to be convicted and sentenced today, the ten-year minimum may not apply because the [FSA] ... raised the quantity of crack cocaine that must be distributed from 50 grams to 280 grams The statute did not, however, explicitly make those changes retroactive.”). With the greatest respect, this Court disagrees with these decisions and concludes that there is no distinction between a defendant who is sentenced before or after the effective date of the FSA for retroactivity purposes so long as such a defendant committed the offense prior to the Act’s passage. If the Saving Statute applies to preserve prosecutions under the old statutory scheme, there is no basis for drawing a distinction among defendants based on the status of their case at the time of the FSA’s enactment. Put another way, the view embraced by Defendants here, and the Douglas court, is identical to that adopted by the Ninth Circuit in Stephens and rejected by the Supreme Court and Second Circuit — that despite § 109’s language, its application can differ depending on whether the defendant is sentenced before or after the new law’s enactment. As described above, the text of the Saving Statute compels a different conclusion: if § 109 applies, the repealed statute “shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement” of such penalties as would be imposed pursuant to the repealed statute. 1 U.S.C. § 109 (emphasis added). A prosecution based on conduct that was criminal when it was committed is obviously a “proper ... prosecution,” and the effect of the Saving Statute is to preserve the prosecution notwithstanding the later repeal of the statute under which the “penalty, forfeiture, or liability” was initially “incurred.” Moreover, as noted, the Supreme Court and the Second Circuit have held that a saving clause’s reference to “prosecutions” includes sentencing. See Bradley, 410 U.S. at 608-09, 93 S.Ct. 1151 (the saving clause of the 1970 Act, preserving “[pjrosecutions for any violation of law occurring” prior to the new act’s effective date, also preserved sentences imposed pursuant to the old statute after the defendant was convicted); Ross, 464 F.2d at 379 (same, and suggesting the same is true for § 109). Therefore, the Saving Statute sustains an entire prosecution, including the imposition of a sentence, arising from a since-repealed statute unless the repealing statute expressly provides otherwise, and there is no basis to argue that while the Saving Statute might prevent the abatement of a prosecution against a defendant, it would not cover the sentence that is a part of that prosecution. A contrary rule is foreclosed by binding authority. See Marrero, 417 U.S. at 661-64, 94 S.Ct. 2532 (holding that the Saving Statute prevented a defendant sentenced under a statutory scheme forbidding parole eligibility from receiving parole even though the old statute had been repealed by the 1970 Act); Klump, 536 F.3d at 120-21 (applying the mandatory minimum sentence in place at the time of the defendant’s conduct, rather than at the time he was sentenced, citing § 109); Smith, 354 F.3d at 175 (“[Section] 109 saves the penalties from the date of [the defendant’s] initial offense.”); Ross, 464 F.2d at 379 n. 5 (“Ross argues that Fiotto is not controlling, because Ross’ conviction, unlike Fiotto’s, occurred after the effective date of the new Act. That Ross’ second conviction came after the effective date, however, is irrelevant.”). Indeed, the Supreme Court’s and Second Circuit’s treatment of this distinction has been echoed by a number of the courts addressing the retroactive effect of the FSA, noting that the Saving Statute’s application means that a court should sentence defendants whose crimes were committed before August 3, 2010 to the mandatory minimums in the now-repealed version of § 841(b). See Carradine, 621 F.3d at 580 (“The ‘general savings statute,’... requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application.”); see also, e.g., McAllister, 401 Fed.Appx. at 820 n. *, 2010 WL 4561395, at *1 n. *; Glover, 398 Fed.Appx. at 680-81, 2010 WL 4250060, at *2; Gomes, 621 F.3d at 1346. Although Defendants dismiss these pronouncements as “dicta” as applied to defendants who have not yet initially been sentenced, that does not mean they are incorrect statements of the law. Therefore, if the Saving Statute applies to the FSA, it would preserve prosecutions initiated and sentences imposed pursuant to the pre-FSA statutory scheme based on pre-FSA conduct, notwithstanding the fact that the Defendants here have not yet been sentenced. The Saving Statute, unlike some of its state counterparts, requires the application of “the mandatory minimum in effect at the time [the Defendants] committed the offense in question.” Glover, 398 Fed.Appx. at 680, 2010 WL 4250060, at *2; see also Ross, 464 F.2d at 379 n. 5 (when a saving clause in a repealing statute preserves the “prosecution” against a defendant, the defendant must be sentenced pursuant to the repealed statute even if the defendant’s conviction happens after the effective date of the repealing statute). 2. Applying the Saving Statute to the FSA The Court already has noted that the FSA “repealed]” the 1986 Act’s sentencing scheme, as required for § 109 to be applicable. Defendants and amicus advance a number of arguments why the Saving Statute should nevertheless not apply to preserve the imposition of pre-FSA mandatory minimum sentences in this case. First, § 109 does not apply because the FSA does not alter any penalty that was in existence under the prior version of § 841(b), but rather simply re-calibrates the quantity of drugs necessary for a defendant to be subject to a mandatory minimum. (See Def. Fred Cannon’s Mem. of Law (“Cannon Mem.”) (Dkt. No. 257) 3-4.) Second, § 109 does not apply to “remedial or procedural” changes in the law. (Id. at 5.) Third, there are indications in both the text and legislative history of the FSA that Congress intended the Act to apply to all sentences going forward following its enactment. (See id. at 8-10; Anderson Mem. 10-14; Mem. of Law in Supp. of Pretrial Mots, for Def. Pierre Myke (“Myke Mem.”) (Dkt. No. 284) 6-14; McCrae Br. 9-11; Letter from Prof. Douglas A. Berman to the Court (Oct. 21, 2010) (“Berman Amicus Letter”), attached as Ex. 1 to Supplemental Decl. of Alexander E. Eisemann Regarding Amicus Submission Filed in Supp. of Mot. Regarding the Fair Sentencing Act of 2010 (Dkt. No. 308) 1-4). Fourth, § 109 does not apply when the repealed law no longer serves any valid “legislative purpose.” (Myke Mem. 16.) a. The FSA’s Change to the Prior Version of 21 U.S.C. § 841(b) Defendant Cannon advances the argument that the FSA does not constitute a true “repeal” of prior law within the meaning of § 109, because the Act does not “release or extinguish” a “penalty, forfeiture, or liability” contained in the prior version of 21 U.S.C. § 841(b) adopted as part of the 1986 Act. (Cannon Mem. 3.) Instead, he contends, the FSA merely “modified the extent to which the amount of drugs involved in the offense cabins the court’s sentencing discretion,” and left in place the five- and ten-year mandatory minimum and statutory maximum sen-fences that were a part of the pre-amendment statute. (Id. at 4.) He likens the drug quantities listed in § 841(b) to “sentencing factors” that trigger a mandatory minimum, and argues that the FSA only altered the details of those factors rather than changing the ultimate amount of punishment to which any defendant may be subject to for cocaine offenses. (Id. (citing Harris v. United States, 536 U.S. 545, 566-67, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)).) The argument is without merit because the only characteristic of a statute covered by the Saving Statute is that it “repeal[s]” another statute. 1 U.S.C. § 109. Here, the FSA obviously “repealed” — i.e., abrogated by legislative act, see Black’s Law Dictionary 1325 (8th ed. 2004)—those provisions of § 841(b) that provided for a mandatory minimum to be imposed for offenses involving 5 and 50 grams of crack. If the Saving Statute did not bar its effect, moreover, the FSA would indeed have the effect of “releasing] or extinguish[ing]” a “penalty ... incurred” under the prior statutory scheme — for those defendants who would have been subject to a mandatory minimum under the old scheme due to the quantity of drugs involved in their offense but who would not be subject to the same minimum if the FSA were applied. See Bell, 624 F.3d at 814 (“[T]he FSA expressly amended the punishment portion of 21 U.S.C. § 841.”). Those minimum sentences were “penalties] ... incurred” under the pre-amendment § 841(b), and even though, under the FSA, the Court could exercise its discretion to impose the exact same amount of punishment as would have been required by the mandatory mínimums, the effect of the Saving Statute, again, is to preserve those penalties incurred under the repealed statute. See Smith, 354 F.3d at 175 (“[Section] 109 saves sentencing provisions in addition to substantive laws.”); Douglas, 746 F.Supp.2d at 226-29, 2010 WL 4260221, at *4 (noting that the FSA “extinguishes the mandatory minimum of ten years for a defendant with [a certain] quantity of crack, even though a sentencing judge could still impose a ten-year penalty”); Holiday v. United States, 683 A.2d 61, 73 (D.C.1996) (“In this connection, Marrero makes clear that when a statute restores sentencing discretion over an option previously foreclosed (in that case parole eligibility), the repealer has ‘extinguished’ a mandatory penalty — triggering application of the general savings statute — even though the sentencing judge could still achieve the result of the repealed statute (e.g., foreclose parole) through the exercise of discretion in a particular case.”). For similar reasons, the Court rejects Cannon’s second argument against the application of the Saving Statute: that the statute does not bar the retroactive application of “remedial or procedural changes.” (Cannon Mem. 5.) In Marrero, the Supreme Court noted that “the general saving clause does not ordinarily preserve discarded remedies or procedures,” and cited Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910) and United States v. Obermeier, 186 F.2d 243 (2d Cir.1950) for this proposition. Marrero, 417 U.S. at 661, 94 S.Ct. 2532. As Obermeier explained, however, the reference to “remedies or procedures” means only that the Saving Statute does not cover situations in which a repealing statute does not affect the “penalties, forfeitures, or liabilities” imposed by the repealed statute, but rather only alters the procedures whereby substantive rights are adjudicated. See Obermeier, 186 F.2d at 253-55 (discussing Hertz and other Supreme Court cases). As an example, Obermeier held that § 109 does not save the limitations period provided for in an earlier statute that had been altered by a new statute, on the ground that the limitations period did not affect “substantive rights and liabilities.” Id. at 254 (internal quotation marks omitted). The FSA, however, does alter “substantive rights and liabilities” because it changes the “penalties” that would have been incurred for an offense involving a particular quantity of drugs under the amended version of § 841(b). See Bell, 624 F.3d at 815 (“[T]he FSA expressly amended the punishment portion of 21 U.S.C. § 841. No procedures or remedies were altered by the passage of the FSA.... [T]he FSA’s predominant purpose was to change the punishments associated with drug offenses.”); Douglas, 746 F.Supp.2d at 226-29, 2010 WL 4260221, at *4 (applying Marrero to conclude that FSA did not only implement a remedial or procedural change to the old law); see also Ross, 464 F.2d at 380 (“We do not believe ... that the provision for mandatory minimum sentences can be termed a ‘remedy.’ ”). b. The Intent of C