On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Crim. No. 89-00215.
Mansmann, Cowen and Alito, Circuit Judges.
This appeal requires us to decide whether a defendant is eligible for probation based on the offense classification in effect at the time she committed the offense or at the time she was sentenced. Specifically, we must decide whether 1 U.S.C. § 109 (1985), commonly referred to as the "saving statute," prevents an amendment of 18 U.S.C. § 3559(a) (1985 & Supp. 1990) that came into effect after the defendant, Marjorie Jacobs committed the offense from rendering her eligible for probation under 18 U.S.C. § 3561 (1985 & Supp. 1990). Applying the Supreme Court's reasoning in Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 41 L. Ed. 2d 383, 94 S. Ct. 2532 (1974), we find that the saving statute does apply to amendments in statutory classification schemes that affect probation eligibility. Accordingly, we will vacate the sentence imposed by the district court and remand for sentencing in accordance with the version of 18 U.S.C. 3559(a) in effect at the time Jacobs committed the offense.
The offense at issue in this case occurred on February 21, 1988. On that day Jacobs visited an inmate at the United States Penitentiary at Lewisburg and gave him approximately twenty grams of cocaine. She was charged by information with a violation of 21 U.S.C. § 841(a)(1) (1981) and thereafter entered a plea of guilty. The maximum prison term authorized for a violation of section 841 is twenty years. 21 U.S.C. § 841(b)(1)(C) (Supp. 1990). Section 841 does not assign a grade to this offense.
A defendant's eligibility for probation is determined by 18 U.S.C. § 3561. Section 3561(a)(1) provides that an individual who is convicted of a Class B felony may not be sentenced to probation, while an individual convicted of a Class C felony is eligible for probation. Ungraded offenses, such as the one committed by Jacobs, are classified pursuant to 18 U.S.C. § 3559(a). At the time that Jacobs committed her offense, it was classified as a Class B felony because the maximum authorized term of imprisonment is twenty years. 18 U.S.C. § 3559(a)(1)(B) (1985). Section 3559(a) was amended on November 18, 1988, changing the classification of offenses with maximum prison terms of twenty years from B to C. Minor and Technical Criminal Law Amendments Act of 1988, Pub. L. No. 100-690, Title VII, § 7041, 102 Stat. 4399 (1988) (codified as amended at 18 U.S.C. § 3559(a)(3) (Supp. 1990)). Thus, Jacobs was ineligible for probation at the time she committed the offense, and eligible for probation at the time of sentencing. The district court judge found that her offense was a class C felony, applying the classification in effect at the time of sentencing, and sentenced her to a two year term of probation, along with a $500 fine and a $50 special assessment.*fn1 We have jurisdiction to hear the government's appeal of that sentence pursuant to 28 U.S.C. § 1291 (Supp. 1990) and 18 U.S.C. § 3742(b) (1985 & Supp. 1988).
The issue before us is whether the district court should have applied the classification statute in effect at the time of sentencing or the statute in effect at the time the offense was committed. The general rule, as developed at common law, requires a court "to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974). In order to prevent the repeal of a criminal statute from abating criminal prosecutions that had been initiated but had not reached final disposition, Congress passed a general saving statute. See Marrero, 417 U.S. at 660. The current saving statute, in effect since 1947, provides, in 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. Because we find that ineligibility for probation is a type of penalty, we hold that section 109 applies to amendments of statutory classifications that render a defendant eligible for probation.
We base our holding on the Supreme Court's reasoning in Marrero. Marrero was ineligible for parole pursuant to a statute in effect at the time that he was sentenced. After that statute was repealed, he initiated a habeas corpus proceeding to determine his parole eligibility status. The Court held, inter alia, that 1 U.S.C. § 109 barred the Parole Board from considering Marrero for parole. The Court concluded that, along with preventing the abatement of prosecutions, the saving statute prohibits the application of ameliorative sentencing laws, noting that the terms "penalty," "liability," and "forfeiture" in the statute apply to all forms of punishment. Marrero, 417 U.S. at 661. The Court then concluded that parole ineligibility is a form of punishment encompassed by 1 U.S.C. § 109. Marrero, 417 U.S. at 662-64.
In support of this conclusion, the Supreme Court reasoned that "only an unusual prisoner could be expected to think that he was not suffering a penalty when he was being denied eligibility for parole." Id. at 662. The Court also noted that repeal of parole eligibility could be problematic under the ex post facto clause of the Constitution because it could be construed as imposing a more severe punishment than the law allowed at the time of the offense. Id. at 663. We find that these two rationales apply with equal force to probation ineligibility. Accordingly, we conclude the ...