(Slip Opinion)
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` OCTOBER TERM, 2011
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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`
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
` Syllabus
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` DORSEY v. UNITED STATES
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SEVENTH CIRCUIT
`No. 11–5683. Argued April 17, 2012—Decided June 21, 2012*
`Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-year
`mandatory minimum prison terms for federal drug crimes reflected a
`
`100-to-1 disparity between the amounts of crack cocaine and powder
`cocaine needed to trigger the minimums. Thus, the 5-year minimum
`was triggered by a conviction for possessing with intent to distribute
`5 grams of crack cocaine but 500 grams of powder, and the 10-year
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`minimum was triggered by a conviction for possessing with intent to
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`distribute 50 grams of crack but 5,000 grams of powder. The United
`States Sentencing Commission—which is charged under the Sentenc-
`ing Reform Act of 1984 with writing the Federal Sentencing Guide-
`lines—incorporated the 1986 Drug Act’s 100-to-1 disparity into the
`Guidelines because it believed that doing so was the best way to keep
`similar drug-trafficking sentences proportional, thereby satisfying
`
`the Sentencing Reform Act’s basic proportionality objective. The Fair
`Sentencing Act, which took effect on August 3, 2010, reduced the dis-
`parity to 18-to-1, lowering the mandatory minimums applicable to
`
`many crack offenders, by increasing the amount of crack needed to
`trigger the 5-year minimum from 5 to 28 grams and the amount for
`the 10-year minimum from 50 to 280 grams, while leaving the pow-
`der cocaine amounts intact. It also directed the Sentencing Commis-
`sion to make conforming amendments to the Guidelines “as soon as
`practicable” (but no later than 90 days after the Fair Sentencing Act’s
`
`
`effective date). The new amendments became effective on November
`1, 2010.
`
` In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in
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`——————
`*Together with No. 11–5721, Hill v. United States, also on certiorari
`to the same court.
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`DORSEY v. UNITED STATES
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`
`Syllabus
`2007, but was not sentenced until December 2010. Sentencing him to
`the 10-year minimum mandated by the 1986 Drug Act, the District
`Judge ruled that the Fair Sentencing Act’s 5-year minimum for sell-
`ing that amount of crack did not apply to those whose offenses were
`committed before the Act’s effective date. In No. 11−5683, petitioner
`Dorsey unlawfully sold 5.5 grams of crack in 2008. In September
`2010, the District Judge sentenced him to the 1986 Drug Act’s 10-
`year minimum, finding that it applied because Dorsey had a prior
`drug conviction and declining to apply the Fair Sentencing Act, under
`which there would be no mandated minimum term for an amount
`less than 28 grams, because Dorsey’s offense predated that Act’s ef-
`
`fective date. The Seventh Circuit affirmed in both cases.
`Held: The Fair Sentencing Act’s new, lower mandatory minimums ap-
`
`ply to the post-Act sentencing of pre-Act offenders. Pp. 10−20.
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`
`(a) Language in different statutes argues in opposite directions.
`The general federal saving statute (1871 Act) provides that a new
`
`criminal statute that “repeal[s]” an older criminal statute shall not
`change the penalties “incurred” under that older statute “unless the
`repealing Act shall so expressly provide.” 1 U. S. C. §109. The word
`“repeal” applies when a new statute simply diminishes the penalties
`that the older statute set forth, see Warden v. Marrero, 417 U. S. 653,
`
`659−664, and penalties are “incurred” under the older statute when
`an offender becomes subject to them, i.e., commits the underlying
`conduct that makes the offender liable, see United States v.
`Reisinger, 128 U. S. 398, 401. In contrast, the Sentencing Reform Act
`says that, regardless of when the offender’s conduct occurs, the appli-
`cable sentencing guidelines are the ones “in effect on the date the de-
`
`fendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
`
`Six considerations, taken together, show that Congress intended
`the Fair Sentencing Act’s more lenient penalties to apply to offenders
`who committed crimes before August 3, 2010, but were sentenced af-
`ter that date. First, the 1871 saving statute permits Congress to ap-
`ply a new Act’s more lenient penalties to pre-Act offenders without
`
`expressly saying so in the new Act. The 1871 Act creates what is in
`effect a less demanding interpretive requirement because the statute
`“cannot justify a disregard of the will of Congress as manifested, ei-
`ther expressly or by necessary implication, in a subsequent enact-
`
`ment.” Great Northern R. Co. v. United States, 208 U. S. 452, 465.
`
`
`Hence, this Court has treated the 1871 Act as setting forth an im-
`portant background principle of interpretation that requires courts,
`before interpreting a new criminal statute to apply its new penalties
`to a set of pre-Act offenders, to assure themselves by the “plain im-
`port” or “fair implication” of the new statute that ordinary interpre-
`tive considerations point clearly in that direction. Second, the Sen-
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`Cite as: 567 U. S. ____ (2012)
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`Syllabus
`tencing Reform Act sets forth a special and different background
`
`principle in §3553(a)(4)(A)(ii), which applies unless ex post facto con-
`cerns are present. Thus, new, lower Guidelines amendments apply to
`offenders who committed an offense before the adoption of the
`amendments but are sentenced thereafter. Third, language in the
`Fair Sentencing Act implies that Congress intended to follow the
`Sentencing Reform Act’s special background principle here. Section 8
`of the Fair Sentencing Act requires the Commission to promulgate
`conforming amendments to the Guidelines that “achieve consistency
`with other guideline provisions and applicable law.” Read most nat-
`urally, “applicable law” refers to the law as changed by the Fair Sen-
`tencing Act, including the provision reducing the crack mandatory
`minimums. And consistency with “other guideline provisions” and
`with prior Commission practice would require application of the new
`Guidelines amendments to offenders who committed their offense be-
`fore the new amendments’ effective date but were sentenced thereaf-
`ter. Fourth, applying the 1986 Drug Act’s old mandatory minimums
`to the post-August 3 sentencing of pre-August 3 offenders would cre-
`ate sentencing disparities of a kind that Congress enacted the Sen-
`tencing Reform Act and the Fair Sentencing Act to prevent. Fifth,
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`not to apply the Fair Sentencing Act would do more than preserve a
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`disproportionate status quo; it would make matters worse by creating
`new anomalies―new sets of disproportionate sentences―not previous-
`
`ly present. That is because sentencing courts must apply the new
`Guidelines (consistent with the Fair Sentencing Act’s new mini-
`mums) to pre-Act offenders, and the 1986 Drug Act’s old minimums
`would trump those new Guidelines for some pre-Act offenders but not
`for all of them. Application of the 1986 Drug Act minimums to pre-
`Act offenders sentenced after the new Guidelines take effect would
`therefore produce a set of sentences at odds with Congress’ basic ef-
`forts to create more uniform, more proportionate sentences. Sixth,
`
`this Court has found no strong countervailing considerations that
`would make a critical difference. Pp. 10−19.
`
`(b) The new Act’s lower minimums also apply to those who commit-
`
`ted an offense prior to August 3 and were sentenced between that
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`date and November 1, 2010, the effective date of the new Guidelines.
`The Act simply instructs the Commission to promulgate new Guide-
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`
`
`lines “as soon as practicable” (but no later than 90 days after the Act
`
`took effect), and thus as far as Congress was concerned, the Commis-
`sion might have promulgated those Guidelines to be effective as early
`as August 3. In any event, courts, treating the Guidelines as advi-
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`sory, possess authority to sentence in accordance with the new mini-
`mums. Finally, applying the new minimums to all who are sentenced
`after August 3 makes it possible to foresee a reasonably smooth tran-
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` DORSEY v. UNITED STATES
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`Syllabus
`sition, and this Court has no reason to believe Congress would have
`wanted to impose an unforeseeable, potentially complex application
`
` date. Pp. 19−20.
`No. 11−5683, 635 F. 3d 336, and No. 11−5721, 417 Fed. Appx. 560, va-
`cated and remanded.
`BREYER, J., delivered the opinion of the Court, in which KENNEDY,
`
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`GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dis-
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`senting opinion, in which ROBERTS, C. J., and THOMAS and ALITO,
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`JJ., joined.
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` Cite as: 567 U. S. ____ (2012)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`
`
`_________________
` Nos. 11–5683 and 11–5721
`_________________
`EDWARD DORSEY, SR., PETITIONER
`
`v.
`UNITED STATES
`
`
`11–5683
`
`
`
`11–5721
`
`COREY A. HILL, PETITIONER
`
`v.
`UNITED STATES
`
`ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE SEVENTH CIRCUIT
`[June 21, 2012]
`JUSTICE BREYER delivered the opinion of the Court.
`Federal statutes impose mandatory minimum prison
`
`sentences upon those convicted of federal drug crimes.
`These statutes typically base the length of a minimum
`prison term upon the kind and amount of the drug in-
`volved. Until 2010, the relevant statute imposed upon an
`offender who dealt in powder cocaine the same sentence it
`imposed upon an offender who dealt in one one-hundredth
`that amount of crack cocaine. It imposed, for example, the
`same 5-year minimum term upon (1) an offender convicted
`of possessing with intent to distribute 500 grams of pow-
`der cocaine as upon (2) an offender convicted of possessing
`with intent to distribute 5 grams of crack.
`
`In 2010, Congress enacted a new statute reducing the
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`crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
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`Fair Sentencing Act, 124 Stat. 2372. The new statute took
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` DORSEY v. UNITED STATES
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`Opinion of the Court
`effect on August 3, 2010. The question here is whether
`the Act’s more lenient penalty provisions apply to offend-
`ers who committed a crack cocaine crime before August 3,
`2010, but were not sentenced until after August 3. We
`hold that the new, more lenient mandatory minimum
`provisions do apply to those pre-Act offenders.
`I
`The underlying question before us is one of congres-
`
`sional intent as revealed in the Fair Sentencing Act’s lan-
`guage, structure, and basic objectives. Did Congress
`intend the Act’s more lenient penalties to apply to pre-Act
`
`offenders sentenced after the Act took effect?
`We recognize that, because of important background
`
`principles of interpretation, we must assume that Con-
`gress did not intend those penalties to apply unless it
`clearly indicated to the contrary. See infra, at 10–13. But
`we find that clear indication here. We rest our conclu-
`sion primarily upon the fact that a contrary determination
`would seriously undermine basic Federal Sentencing
`Guidelines objectives such as uniformity and proportional-
`ity in sentencing. Indeed, seen from that perspective, a
`contrary determination would (in respect to relevant
`groups of drug offenders) produce sentences less uniform
`and more disproportionate than if Congress had not en-
`acted the Fair Sentencing Act at all. See infra, at 14–18.
`
`Because our conclusion rests upon an analysis of the
`
`Guidelines-based sentencing system Congress has estab-
`lished, we describe that system at the outset and include
`an explanation of how the Guidelines interact with federal
`statutes setting forth specific terms of imprisonment.
`A
`
`
`The Guidelines originate in the Sentencing Reform Act
`of 1984, 98 Stat. 1987. That statute created a federal
`Sentencing Commission instructed to write guidelines that
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` Cite as: 567 U. S. ____ (2012)
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`Opinion of the Court
`judges would use to determine sentences imposed upon
`offenders convicted of committing federal crimes. 28
`U. S. C. §§991, 994. Congress thereby sought to increase
`transparency, uniformity, and proportionality in sentenc-
`ing. United States Sentencing Commission (USSC or
`Commission), Guidelines Manual §1A1.3, p. 2 (Nov. 2011)
`(USSG); see 28 U. S. C. §§991(b)(1), 994(f).
`
`The Sentencing Reform Act directed the Commission to
`create in the Guidelines categories of offense behavior
`(e.g., “‘bank robbery/committed with a gun/$2500 taken’”)
`
`and offender characteristics (e.g., “one prior conviction”).
`USSG §1A1.2, at 1; see 28 U. S. C. §§994(a)–(e). A sen-
`tencing judge determines a Guidelines range by (1) finding
`
`the applicable offense level and offender category and then
`(2) consulting a table that lists proportionate sentenc-
`ing ranges (e.g., 18 to 24 months of imprisonment) at the
`intersections of rows (marking offense levels) and columns
`(marking offender categories). USSG ch. 5, pt. A, Sen-
`tencing Table, §§5E1.2, 7B1.4; see also §1A1.4(h), at 11.
`The Guidelines, after telling the judge how to determine the
`applicable offense level and offender category, instruct the
`judge to apply the intersection’s range in an ordinary case,
`but they leave the judge free to depart from that range in
`an unusual case. See 18 U. S. C. §3553(b); USSG §§1A1.2,
`at 1–2, 1A1.4(b), at 6–7. This Court has held that the
`Guidelines are now advisory. United States v. Booker, 543
`U. S. 220, 245, 264 (2005); see Kimbrough v. United
`States, 552 U. S. 85, 91 (2007).
`
`The Guidelines determine most drug-crime offense lev-
`els in a special way. They set forth a Drug Quantity
`Table (or Table) that lists amounts of various drugs and
`associates different amounts with different “Base Offense
`Levels” (to which a judge may add or subtract levels de-
`pending upon the “specific” characteristics of the offender’s
`behavior). See USSG §2D1.1. The Table, for example,
`associates 400 to 499 grams of powder cocaine with a base
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` DORSEY v. UNITED STATES
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`Opinion of the Court
`offense level of 24, a level that would mean for a first-time
`
`offender a prison term of 51 to 63 months. §2D1.1(c).
`
`In 1986, Congress enacted a more specific, drug-related
`sentencing statute, the Anti-Drug Abuse Act (1986 Drug
`Act), 100 Stat. 3207. That statute sets forth mandatory
`minimum penalties of 5 and 10 years applicable to a drug
`offender depending primarily upon the kind and amount of
`drugs involved in the offense. See 21 U. S. C. §§841(b)(1)
`(A)–(C) (2006 ed. and Supp. IV). The minimum applicable
`to an offender convicted of possessing with intent to dis-
`
`tribute 500 grams or more of powder cocaine is 5 years,
`and for 5,000 grams or more of powder the minimum is
`
`
`10 years. §§841(b)(1)(A)(ii), (B)(ii). The 1986 Drug Act,
`
`however, treated crack cocaine crimes as far more serious.
`It applied its 5-year minimum to an offender convicted of
`possessing with intent to distribute only 5 grams of crack
`(as compared to 500 grams of powder) and its 10-year
`minimum to one convicted of possessing with intent to
`distribute only 50 grams of crack (as compared to 5,000
`grams of powder), thus producing a 100-to-1 crack-to-
`powder ratio. §§841(b)(1)(A)(iii), (B)(iii) (2006 ed.).
`
`The 1986 Drug Act, like other federal sentencing stat-
`
`utes, interacts with the Guidelines in an important way.
`
`Like other sentencing statutes, it trumps the Guidelines.
`Thus, ordinarily no matter what the Guidelines provide, a
`judge cannot sentence an offender to a sentence beyond
`the maximum contained in the federal statute setting
`forth the crime of conviction. Similarly, ordinarily no
`matter what range the Guidelines set forth, a sentencing
`judge must sentence an offender to at least the minimum
`
`prison term set forth in a statutory mandatory minimum.
`
`See 28 U. S. C. §§994(a), (b)(1); USSG §5G1.1; Neal v.
`United States, 516 U. S. 284, 289–290, 295 (1996).
`
`Not surprisingly, the Sentencing Commission incorpo-
`rated the 1986 Drug Act’s mandatory minimums into the
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`first version of the Guidelines themselves. Kimbrough,
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`Opinion of the Court
`supra, at 96–97. It did so by setting a base offense level
`
`for a first-time drug offender that corresponded to the
`lowest Guidelines range above the applicable mandatory
`minimum. USSC, Report to the Congress: Mandatory
`Minimum Penalties in the Federal Criminal Justice Sys-
`tem 53–54 (Oct. 2011) (2011 Report). Thus, the first
`
`Guidelines Drug Quantity Table associated 500 grams
`
`of powder cocaine with an offense level of 26, which for a
`first-time offender meant a sentencing range of 63 to 78
`months (just above the 5-year minimum), and it associated
`5,000 grams of powder cocaine with an offense level of 32,
`which for a first-time offender meant a sentencing range
`of 121 to 151 months (just above the 10-year minimum).
`USSG §2D1.1 (Oct. 1987). Further reflecting the 1986
`Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso-
`ciated an offense level of 26 with 5 grams of crack and an
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`offense level of 32 with 50 grams of crack. Ibid.
`
`In addition, the Drug Quantity Table set offense levels
`
`for small drug amounts that did not trigger the 1986 Drug
`Act’s mandatory minimums so that the resulting Guide-
`lines sentences would remain proportionate to the sen-
`tences for amounts that did trigger these minimums. 2011
`Report 54. Thus, the Table associated 400 grams of pow-
`der cocaine (an amount that fell just below the amount
`
`
`triggering the 1986 Drug Act’s 5-year minimum) with an
`offense level of 24, which for a first-time offender meant a
`sentencing range of 51 to 63 months (the range just below
`the 5-year minimum). USSG §2D1.1 (Oct. 1987). Follow-
`
`ing the 100-to-1 crack-to-powder ratio, the Table associated
`four grams of crack (an amount that also fell just below
`the amount triggering the 1986 Drug Act’s 5-year mini-
`
`mum) with an offense level of 24. Ibid.
`
`The Commission did this not because it necessarily
`
`thought that those levels were most in keeping with past
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`sentencing practice or would independently have reflected
`a fair set of sentences, but rather because the Commission
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` DORSEY v. UNITED STATES
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`Opinion of the Court
`believed that doing so was the best way to keep similar
`
`drug-trafficking sentences proportional, thereby satisfying
`the Sentencing Reform Act’s basic “proportionality” objec-
`tive. See Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov.
`2011); 2011 Report 53–54, 349, and n. 845. For this rea-
`son, the Commission derived the Drug Quantity Table’s
`entire set of crack and powder cocaine offense levels by
`
`using the 1986 Drug Act’s two (5- and 10-year) minimum
`amounts as reference points and then extrapolating from
`those two amounts upward and downward to set propor-
`tional offense levels for other drug amounts. Ibid.
`B
`
`During the next two decades, the Commission and
`others in the law enforcement community strongly criti-
`cized Congress’ decision to set the crack-to-powder manda-
`tory minimum ratio at 100-to-1. The Commission issued
`four separate reports telling Congress that the ratio was
`too high and unjustified because, for example, research
`showed the relative harm between crack and powder
`cocaine less severe than 100-to-1, because sentences em-
`bodying that ratio could not achieve the Sentencing Re-
`form Act’s “uniformity” goal of treating like offenders
`alike, because they could not achieve the “proportionality”
`goal of treating different offenders (e.g., major drug traf-
`fickers and low-level dealers) differently, and because the
`public had come to understand sentences embodying the
`100-to-1 ratio as reflecting unjustified race-based differ-
`
`ences. Kimbrough, supra, at 97–98; see, e.g., USSC,
`Special Report to the Congress: Cocaine and Federal Sen-
`tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC,
`Special Report to Congress: Cocaine and Federal Sentenc-
`ing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to
`Congress: Cocaine and Federal Sentencing Policy 91, 103
`(May 2002) (2002 Report); USSC, Report to Congress:
`Cocaine and Federal Sentencing Policy 8 (May 2007) (2007
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`Opinion of the Court
`Report). The Commission also asked Congress for new
`legislation embodying a lower crack-to-powder ratio. 1995
`Report 198–200; 1997 Report 9–10; 2002 Report 103–
`107; 2007 Report 6–9. And the Commission recommended
`that the legislation “include” an “emergency amendment”
`allowing “the Commission to incorporate the statutory
`changes” in the Guidelines while “minimiz[ing] the lag
`between any statutory and guideline modifications for
`cocaine offenders.” Id., at 9.
`
`In 2010, Congress accepted the Commission’s recom-
`mendations, see 2002 Report 104; 2007 Report 8–9, and
`
`n. 26, and enacted the Fair Sentencing Act into law. The
`Act increased the drug amounts triggering mandatory
`
`minimums for crack trafficking offenses from 5 grams to
`28 grams in respect to the 5-year minimum and from 50
`grams to 280 grams in respect to the 10-year minimum
`(while leaving powder at 500 grams and 5,000 grams
`respectively). §2(a), 124 Stat. 2372. The change had the
`effect of lowering the 100-to-1 crack-to-powder ratio to 18-
`to-1.
`(The Act also eliminated the 5-year mandatory
`
`
`minimum for simple possession of crack. §3, 124 Stat.
`2372.)
`
`Further, the Fair Sentencing Act instructed the Com-
`mission to “make such conforming amendments to the
`Federal sentencing guidelines as the Commission deter-
`mines necessary to achieve consistency with other guide-
`
`line provisions and applicable law.” §8(2), id., at 2374.
`And it directed the Commission to “promulgate the guide-
`lines, policy statements, or amendments provided for in
`this Act as soon as practicable, and in any event not later
`
`than 90 days” after the new Act took effect. §8(1), ibid.
`
`The Fair Sentencing Act took effect on August 3,
`
`
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`2010. The Commission promulgated conforming emergency
`Guidelines amendments that became effective on Novem-
`ber 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent
`version of those Guidelines amendments took effect on
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`7
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` DORSEY v. UNITED STATES
`
`Opinion of the Court
`November 1, 2011. See 76 id., at 24960 (2011).
`C
`With this background in mind, we turn to the relevant
`
`facts of the cases before us. Corey Hill, one of the peti-
`tioners, unlawfully sold 53 grams of crack in March 2007,
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`before the Fair Sentencing Act became law. App. in No.
`11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986
`Drug Act, an offender who sold 53 grams of crack was
`
`subject to a 10-year mandatory minimum. 21 U. S. C.
`§841(b)(1)(A)(iii) (2006 ed.). Hill was not sentenced, how-
`ever, until December 2010, after the Fair Sentencing Act
`became law and after the new Guidelines amendments
`had become effective. Hill App. 83–94. Under the Fair
`Sentencing Act, an offender who sold 53 grams of
`crack was subject to a 5-year, not a 10-year, minimum.
`§841(b)(1)(B)(iii) (2006 ed., Supp. IV). The sentencing
`judge stated that, if he thought that the Fair Sentencing
`
`Act applied, he would have sentenced Hill to that Act’s 5-
`year minimum. Id., at 69. But he concluded that the Fair
`Sentencing Act’s lower minimums apply only to those who
`committed a drug crime after August 3, 2010—the Act’s
`effective date. Id., at 65, 68. That is to say, he concluded
`that the new Act’s more lenient sentences did not apply
`to those who committed a crime before August 3, even if
`they were sentenced after that date. Hence, the judge sen-
`tenced Hill to 10 years of imprisonment. Id., at 78. The
`Court of Appeals for the Seventh Circuit affirmed. 417
`Fed. Appx. 560 (2011).
`
`The second petitioner, Edward Dorsey (who had previ-
`ously been convicted of a drug felony), unlawfully sold 5.5
`grams of crack in August 2008, before the Fair Sentencing
`Act took effect. App. in No. 5683, pp. 9, 48–49, 57–58
`
`(hereinafter Dorsey App.). Under the 1986 Drug Act, an
`offender such as Dorsey with a prior drug felony who sold
`5.5 grams of crack was subject to a 10-year minimum.
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`Opinion of the Court
`§841(b)(1)(B)(iii) (2006 ed.). Dorsey was not sentenced,
`however, until September 2010, after the new Fair Sen-
`tencing Act took effect. Id., at 84–95. Under the Fair
`Sentencing Act, such an offender who sold 5.5 grams of
`crack was not subject to a mandatory minimum at all, for
`5.5 grams is less than the 28 grams that triggers the new
`Act’s mandatory minimum provisions. §841(b)(1)(B)(iii)
`(2006 ed., Supp. IV). Dorsey asked the judge to apply the
`Fair Sentencing Act’s more lenient statutory penalties.
`Id., at 54–55.
`
`Moreover, as of Dorsey’s sentencing in September 2010,
`the unrevised Guidelines (reflecting the 1986 Drug Act’s
`old minimums) were still in effect. The Commission had
`not yet finished revising the Guidelines to reflect the
`new, lower statutory minimums. And the basic sentencing
`statute, the Sentencing Reform Act, provides that a judge
`
`shall apply the Guidelines that “are in effect on the date
`the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
`
`The sentencing judge, however, had the legal authority
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`not to apply the Guidelines at all (for they are advisory).
`But he also knew that he could not ignore a minimum
`sentence contained in the applicable statute. Dorsey App.
`67–68. The judge noted that, even though he was sentenc-
`ing Dorsey after the effective date of the Fair Sentencing
`Act, Dorsey had committed the underlying crime prior to
`that date. Id., at 69–70. And he concluded that the 1986
`Drug Act’s old minimums, not the new Fair Sentencing
`
`
`Act, applied in those circumstances. Ibid. He consequently
`sentenced Dorsey to the 1986 Drug Act’s 10-year man-
`datory minimum term. Id., at 80. The Court of Appeals
`for the Seventh Circuit affirmed, United States v. Fisher,
`635 F. 3d 336 (2011), and denied rehearing en banc, 646
`F. 3d 429 (2011) (per curiam); see also United States v.
`Holcomb, 657 F. 3d 445 (CA7 2011).
`
`The Courts of Appeals have come to different conclu-
`sions as to whether the Fair Sentencing Act’s more lenient
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` DORSEY v. UNITED STATES
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`Opinion of the Court
`mandatory minimums apply to offenders whose unlawful
`
`conduct took place before, but whose sentencing took place
`after, the date that Act took effect, namely, August 3,
`
`2010. Compare United States v. Douglas, 644 F. 3d 39,
`42–44 (CA1 2011) (Act applies), and United States v.
`Dixon, 648 F. 3d 195, 203 (CA3 2011) (same), with 635
`F. 3d, at 339–340 (Act does not apply), United States v.
`
`Sidney, 648 F. 3d 904, 910 (CA8 2011) (same), and
`United States v. Tickles, 661 F. 3d 212, 215 (CA5 2011)
`(per curiam) (same).
`In light of that disagreement, we
`granted Hill’s and Dorsey’s petitions for certiorari. Since
`petitioners and the Government both take the position
`that the Fair Sentencing Act’s new minimums do apply
`in these circumstances, we appointed as amicus curiae
`Miguel Estrada to argue the contrary position. He has ably
`
`discharged his responsibilities.
`
`II
`
`A
`
`
`The timing issue before us is difficult in part because
`relevant language in different statutes argues in opposite
`directions. See Appendix A, infra. On the one hand, a
`federal saving statute, Act of Feb. 25, 1871 (1871 Act), §4,
`16 Stat. 432, phrased in general terms, provides that a
`new criminal statute that “repeal[s]” an older criminal
`statute shall not change the penalties “incurred” under
`that older statute “unless the repealing Act shall so ex-
`
`pressly provide.” 1 U. S. C. §109. Case law makes clear
`that the word “repeal” applies when a new statute simply
`
`diminishes the penalties that the older statute set forth.
`See Warden v. Marrero, 417 U. S. 653, 659–664 (1974); see
`also United States v. Tynen, 11 Wall. 88, 92 (1871). Case
`law also makes clear that penalties are “incurred” under
`the older statute when an offender becomes subject to
`them, i.e., commits the underlying conduct that makes the
`offender liable. See United States v. Reisinger, 128 U. S.
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`Opinion of the Court
`398, 401 (1888); Great Northern R. Co. v. United States,
`208 U. S. 452, 464–470 (1908).
`
`
`On the other hand, the Sentencing Reform Act says
`that, regardless of when the offender’s conduct occurs, the
`applicable Guidelines are the ones “in effect on the date
`
`the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
`And the Fair Sentencing Act requires the Commission
`to change the Guidelines in the wake of the Act’s new
`
`minimums, making them consistent with “other guideline
`provisions and applicable law.” §8(2), 124 Stat. 2374.
`
`Courts that have held that they must apply the old,
`higher 1986 Drug Act minimums to all pre-Act offenders,
`including those sentenced after the Fair Sentencing Act
`took effect, have emphasized that the 1871 Act requires
`that result unless the Fair Sentencing Act either expressly
`says or at least by fair implication implies the contrary.
`
`See 635 F. 3d, at 339–340; Sidney, supra, at 906–908;
`Tickles, supra, at 214–215; see also Holcomb, supra, at
`446–448 (opinion of Easterbrook, J.). Courts that have
`concluded that the Fair Sentencing Act’s more lenient
`penalties apply have found in that Act, together with the
`Sentencing Reform Act and other related circumstances,
`indicia of a clear congressional intent to apply the new
`Act’s minimums. See Douglas, supra, at 42–44; Dixon,
`supra, at 199–203; see also Holcomb, 657 F. 3d, at 454–
`457 (Williams, J., dissenting from denial of rehearing en
`
`banc); id., at 461–463 (Posner, J., dissenting from denial
`of rehearing en banc). We too take the latter view. Six
`considerations, taken together, convince us that Congress
`intended the Fair Sentencing Act’s more lenient penalties
`to apply to those offenders whose crimes preceded August
`3, 2010, but who are sentenced after that date.
`First, the 1871 saving statute permits Congress to apply
`a new Act’s more lenient penalties to pre-Act offenders
`without expressly saying so in the new Act. It is true
`that the 1871 Act uses the words “expressly provide.” 1
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` DORSEY v. UNITED STATES
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`Opinion of the Court
`U. S. C. §109. But the Court has long recognized that this
`saving statute creates what is in effect a less demanding
`interpretive requirement. That is because statutes en-
`acted by one Congress cannot bind a later Congress,
`which remains free to repeal the earlier statute, to exempt
`the current statute from the earlier statute, to modify the
`earlier statute, or to apply the earlier statute but as modi-
`fied. See, e.g., Fletcher v. Peck, 6 Cranch 87, 135 (1810);
`
`
`Reichelderfer v. Quinn, 287 U. S. 315, 318 (1932). And
`Congress remains free to express any such intention either
`expressly or by implication as it chooses.
`
`Thus, the Court has said that the 1871 Act “cannot
`
`justify a disregard of the will of Congress as manifested
`either expressly or by necessary implication in a subse-
`quent enactment.” Great Northern R. Co., supra, at 465
`(emphasis added). And in a comparable context the Court
`has emphasized that the Administrative Procedure Act’s
`use of the word “expressly” does not require Congress to
`use any “magical passwords” to exempt a later statute
`from the provision. Marcello v. Bonds, 349 U. S. 302,
`310 (1955). Without requiring an “express” statement, the
`Court has described the necessary indicia of congressional
`intent b