By Christopher Zoukis
On May 17, 2013, the United States Court of Appeals for the Sixth Circuit ruled that the crack cocaine sentencing reforms set forth in the Fair Sentencing Act (FSA) — lowering the crack-to-powder cocaine ratio from 100:1 to 18:1 — must be applied to all federal prisoners sentenced before the 2010 enactment of the law. Based on a finding that those sentenced before the FSA’s enactment were victimized by the racially discriminatory crack laws the law sought to remedy, the Sixth Circuit’s decision in United States v. Blewett. No. 12-5226/5582, 2013 WL 2121945 (May 17, 2013), could open the door to resentencing for thousands of federal prisoners.
Since the Blewett decision has the potential to affect thousands of federal prisoners sentenced for crack cocaine offenses, the Prison Law Blog has put together the following Frequently Asked Questions (FAQs) to help all potentially affected by the Blewett decision to understand what it means for them and what action to take, if any.
1) What is Blewett all about?
In Blewett, the United States Court of Appeals for the Sixth Circuit decided that the rationale expressed in the Fair Sentencing Act to lower the sentencing ranges for crack cocaine offenses, by adjusting the quantities required to trigger certain mandatory minimums, should apply to all crack cocaine cases. In Blewett, the Sixth Circuit applied the FSA’s changes to two defendants sentenced in 2005. The defendants had asked for relief under 18 U.S.C. § 3582(c)(2), which allows for resentencing when the United States Sentencing Commission lowers one of its Sentencing Guidelines and that change is designated as a retroactively applicable one. They were denied in the district court and appealed.
While the Sentencing Commission did not explicitly list all of the FSA’s changes as retroactively applicable, the Sixth Circuit ruled that application of those changes were necessarily implied. Ruling that Congress and the Sentencing Commission made the changes to the racial discrimination in the old crack sentencing regimen, the Sixth Circuit said that the Constitution required applying the FSA to all defendants, dating back to at least 1987. In doing so, the Court reversed the denial of § 3582 relief for the Blewett defendants, and ordered their resentencing.
The Blewett decision is the first one to order retroactive application of the FSA’s changes.
2) Who does the Blewett decision affect?
The Blewett decision could affect all defendants who were sentenced for “crack cocaine” or “cocaine base” offenses in federal courts located within the Sixth Circuit. United States District Courts in Kentucky, Michigan, Ohio and Tennessee comprise the Sixth Circuit jurisdictional area.
3) Does the Blewett decision help those sentenced for crack cocaine in other circuits?
No. Those sentenced in federal courts outside the Sixth Circuit are not directly affected by the Blewett decision.
However, because Blewett is based in part on a new Supreme Court decision, Dorsey v. United States, 567 U.S. ____ (2012), which interpreted the Fair Sentencing Act’s applicability to all prisoners sentenced after the FSA’s passage, it stands to reason that the same arguments adopted by the Sixth Circuit could be advanced in other federal courts too. The fact that other courts have previously rejected challenges to racial discrimination in the crack sentencing regimen does not foreclose relief — after all, the Sixth Circuit had ruled that way before Dorsey, too. Simply put, the FSA and Dorsey, and now Blewett, have changed the landscape considerably. A door has now been opened for those convicted of federal crack cocaine offenses to seek relief.
4) Does Blewett apply to every crack cocaine defendant sentenced in the Sixth Circuit? What about career offenders?
Neither defendant in Blewett was a career offender, and the court did mention that career offenders had not been able to obtain relief under the FSA, so it’s likely that the government will argue that it does not apply. This is so because career offender sentences involve other Sentencing Guideline provisions that were not affected by the FSA. Nonetheless, because the Blewett court based its decision on equal protection and racial discrimination factors, career offenders should advance an argument that their sentences should be revisited, too.
Likewise, while the FSA, on its face, does not appear to apply to cases involving more than 280 grams of crack cocaine, the equal protection concerns raised in Blewett warrant review of cases involving amounts above that quantity, too. Many sentences in such cases were imposed via consideration of what seemed just and fair under a now discredited sentencing regimen. Undoubtedly, there were many sentences imposed by judges who felt the 100:1 ratio was discriminatory, but whom had no recourse but to sentence crack cocaine defendants in line with existing Sentencing Guidelines.
5) Is the government going to appeal the Blewett decision?
As of this writing, no decision on what the government’s plans might be has been announced. The government has two options. First, it can ask for reconsideration of Blewett, either by the three-judge panel that decided the case, or petition all of the Sixth Circuit’s judges to review the panel’s decision “en banc.” Second, the government could ask the United States Supreme Court to consider the issue. Or it could do both. In either case, the government has an uphill fight; en banc review and Supreme Court action are relatively rare, and, frankly, arguing against Blewett has little political appeal. Prison Law Blog will notify our readership as soon as this information becomes publicly available.
6) How does a federal prisoner formerly convicted of a crack cocaine offense seek relief under Blewett?
Generally, a motion under 18 U.S.C. § 3582(c)(2) is the way to bring a Blewett-type claim. As mentioned above, § 3582 allows a federal judge to consider resentencing when certain Sentencing Guidelines provisions have been changed, so any federal prisoner sentenced for a crack cocaine offense in the Sixth Circuit can file such a motion. For federal prisoners who previously filed a § 3582 motion, an argument could be made that reconsideration under Blewett may be warranted.
7) Do I need a lawyer to seek relief under Blewett?
No. Any federal prisoner who has been sentenced for a crack cocaine offense, who feels that replies might be warranted under Blewett, can petition the court “pro se,” and get the ball rolling that way. Recent experience says that most Courts will assign counsel to assist a § 3582 litigant if a meritorious claim has been presented. As a § 3582 motion is generally considered another step in the original criminal case, most defendants should simply contact former counsel, especially if the attorney was court-appointed. Most judges prefer such motions from counsel, so if they can re-appoint former counsel, they usually will.
8) Can the Prison Law Blog recommend a lawyer for me?
Prison Law Blog does not accept advertisements, nor does it “bird dog” for other attorneys. However, we’re always happy to provide prisoners and their families with contact information for some attorneys we admire as experienced and competent in federal criminal matters. You can email us via our contact us page if you want further information.
9) Would it be better to seek relief under Blewett now, or wait to see what happens with future appeals?
File a motion immediately. Right now, Blewett represents a real basis for relief for hundreds, if not thousands, of federal prisoners serving unfairly onerous sentences. Whether the case will be overturned later, no one can say. Those experienced in such matters know that it is always advisable to move when the law is on your side. Any federal prisoner who thinks Blewett might apply to them should file a motion immediately.