On May 31, 2013, the United States Court of Appeals for the Sixth Circuit granted a request by the United States for en banc review in United States v. Blewett, No. 12-5226/5582, 2013 WL 2121945 (May 17, 2013).
In Blewett, a three-judge panel ruled that the recent amendments to provisions governing sentencing in crack cocaine cases, set forth in the Fair Sentencing Act (“FSA”), must be applied retroactively to all crack defendants sentenced under the now-discarded “100-to-1 crack versus cocaine” sentencing policy. Ruling that the FSA and a recent Supreme Court decision established that the 100:1 policy was applied in a discriminatory fashion to African-American criminal defendants, the Blewett panel applied the 2010 FSA’s changes to the sentences of two men sentenced in 2005. See PrisonLawBlog.com post on May 30, 2013, entitled “The Blewett Decision: FAQs on the Sixth Circuit’s Retroactive Crack Decision“.
The decision to grant the government’s request for en banc review means that Blewett will be reviewed and reconsidered by the full roster of Sixth Circuit judges, nine of them in all. As noted in a previous post, Blewett’s “equal protection” finding represents a major departure from longstanding Sixth Circuit precedent finding no racial bias in the former 100:1 policy. However, most of the settled law in the circuit — and in others that had upheld the 100:1 policies as constitutional — was decided prior to the 2010 enactment of the FSA and Dorsey v. United States, ____ U.S. ____, 2011 WL 3422126 (2012), which required application of the FSA to defendants whose crimes predated the FSA, but were sentenced after its August 3, 2010 enactment.
As the panel deciding Blewett was divided via a 2-1 vote, it is too early to say how Blewett might be ultimately resolved. We at Prison Law Blog remain hopeful, and we encourage prisoners in all circuits to advance similar arguments based on the FSA and Dorsey. For now, though, the grant of en banc review puts Blewett relief for Sixth Circuit prisoners on hold.