Under established principles of law, it is the penalties under the statutory scheme at the time of the offense itself, rather than at the time of sentencing, which apply. This canon of criminal law is codified at 1 U.S.C. § 109, the so-called "general saving clause", which states 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.
While the statute speaks only of "repeal", it applies with equal force to statutory amendment. See, e.g., United States v. Mechem, 509 F.2d 1193, 1194 n.3 (10th Cir. 1975) (per curiam). Absent explicit Congressional language, a defendant is therefore not entitled to the benefit of reductions in a criminal penalty statute enacted between the time of his offense and the time of sentencing. See Warden v. Marrero, 417 U.S. 653, 661, 41 L. Ed. 2d 383, 94 S. Ct. 2532 (1974); United States v. Taylor, 676 F. Supp. 1111, 1112 (D. Utah 1988).
Thus, Margiotta's offense was properly treated at sentencing as a Class B felony. At the time of the unlawful conduct -- on and between July 26 and September 1, 1988 -- section 3559 designated Margiotta's crime as a Class B felony. Indeed, even at the time Margiotta entered his guilty plea (November 3, 1988), the relevant statutory and Guidelines sections authorized imposition of a term of supervised release between 3 and 5 years. Although sentencing in this case took place after the revision of section 3559's definitions of Class B and C felonies, section 109 of Title 1 makes clear that this change could benefit Margiotta only if Congress expressly provided for retroactive application to previously committed crimes. As no such provision was made in amending section 3559, Margiotta was properly sentenced under the former version of the statute. See United States v. Andrews, 918 F.2d 1156, 1159 & n.1 (5th Cir. 1990) (post-amendment sentence should treat pre-amendment offense, punishable by no more than 20 years, as Class B felony); United States v. Cook, 890 F.2d 672, 673-76 & n.2, 675-76 (4th Cir. 1989) (same); United States v. Carey, 884 F.2d 547, 547-49 (11th Cir. 1989) (same), cert. denied, 494 U.S. 1067, 108 L. Ed. 2d 787, 110 S. Ct. 1786 (1990).
Section 3553(a)(4) of Title 18 does not require a different conclusion. That section requires a sentencing court to consider, inter alia, "the kinds of sentence and the sentencing range established for the . . . offense committed by the . . . defendant as set forth in the guidelines . . . and that are in effect on the date the defendant is sentenced . . . ." This section does not, however, compel the application of statutory penalty provisions in effect as of sentencing. As the Fourth Circuit has noted,
on its face it is clear that Congress was addressing guidelines sentences as promulgated by the Sentencing Commission. In addition, the legislative history confirms that Congress was addressing only changes in the guidelines through the amendment process and not statutory changes produced by enactments of Congress.
Cook, 890 F.2d at 675-76 (citations omitted). Thus, while this court was obliged to apply the then-current version of Guideline section 5D1.2(b) to Margiotta at sentencing, it was nevertheless appropriate to interpret the terms of that section in light of the pre-amendment language of 18 U.S.C. § 3559.
The court rejects the government's suggestion that this case is controlled by United States v. Cardenas, 917 F.2d 683 (2d Cir. 1990). Cardenas, like Margiotta, violated 21 U.S.C. §§ 841(b)(1)(C) and 846 during August 1988. Id. at 685, 688. On January 3, 1989, he pled guilty. Id. at 685. In reviewing his sentence, the Second Circuit found that the district court had improperly imposed a 10-year term of supervised release, and reduced that portion of his sentence to 3 years. According to the Cardenas court, this result was compelled by the fact that "Cardenas was convicted of a Class C felony since the maximum term of incarceration he may serve is 20 years. See 21 U.S.C. § 841(b)(1)(C) (20-year maximum term); 18 U.S.C. § 3559(a)(3) (Class C felonies less than 25 but 10 or more years)." It is clear from this discussion, however, that the Second Circuit may have failed to notice that section 3559 had been amended in the interim, and that under the text of the statute at the time of his offense, Cardenas committed a Class B felony. Without intending disrespect to the Second Circuit, this court finds -- as have the numerous circuits cited above -- that the felony classification relevant for purposes of applying Sentencing Guideline § 5D1.2(b) is that in effect at the time of the offense, and not that in effect at the time of sentencing.
Accordingly, Margiotta's petition is denied.
Dated: Brooklyn, New York
March 27, 1992
I. LEO GLASSER, U.S.D.J.