By Christopher Zoukis

On December 3, 2013, the United States Court of Appeals for the Sixth Circuit, sitting en banc, rejected a challenge to the federal crack cocaine sentencing regimen that had been held unconstitutional in May by a three-judge panel of the Court.  By a 10-7 margin, the full court ruled that the crack cocaine sentences handed down to two black defendants, withstood review for racial disparities under the Fifth and Eighth Amendments to the United States Constitution.  The Court also ruled that Sentencing Guidelines relief from mandatory minimum sentences provided by the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, would not be applied retroactively under 18 U.S.C. § 3582(c)(2).  United States v. Blewett, Case No. 12-5226, 5582 (6th Cir., 12/3/12)(en banc).

The en banc court reversed a controversial decision by a three-judge panel of the same court that equated the federal crack cocaine sentencing regimen with “slavery and Jim Crow laws,” and vacated the sentences of two black defendants as violation of the equal protection clause. See United States v. Blewett, 719 F.3d 482, 493 (6th Cir. 2013), vacated (July 11, 2013).

The en banc court ruled that the Blewett defendants’ claim of an equal protection clause violation, due to the crack sentencing laws having a disparate effect on blacks, failed because prior decisions of that court had already addressed the issue, see, e.g., United States v. Williams, 962 F.2d 1218, 1227 (6th Cir. 1992), and that an Eighth Amendment concern over the length of their sentence were negated by Supreme Court decisional law that had upheld far more onerous punishments for drug dealing than the 10-year sentences imposed on Cornelius Blewett and his cousin, Jarreous Blewett. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991)(upholding life-without-parole sentence for 672 grams of cocaine).

The en banc court further ruled that it was erroneous for the three-judge panel to bypass common procedures used by the United States Sentencing Commission to establish whether to apply a decision retroactively, via use of a doctrine that the panel said empowered it to frame equitable remedies to repair the denial of a constitutional right.  Said the en banc majority, “At the end of the day, this is a case about who, not what, about who has authority to lower the Blewetts’ sentences, not what should be done with that authority.  In holding that the court’s lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction.  Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive.  Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress.  Yet the language of the relevant statutes and the language of the relevant decisions leave us no room to grant that relief here.  Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).” Blewett, supra (citations omitted).

Not surprising to many observers is that the 10-7 split of the court went along party lines, with mostly Republican appointees in the majority and mostly Democrat-appointed judges dissenting.  The court’s writings on the cases consumed 79 pages of various majority opinions, concurrences, and dissents.

Whether the Blewett decision will seek Supreme Court review is not known at this time.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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