The United States Court of Appeals for the Sixth Circuit has ruled that the 2010 Fair Sentencing Act, which lowered the threshold quantities of crack cocaine required to trigger mandatory minimum sentences, retroactively applies to all defendants sentenced for crack offenses prior to the law’s enactment. United States v. Blewett, No. 12-5226/5582, 2013 WL 2121945 (6th Cir. May 17, 2013).  The decision to expand the FSA applies to defendants sentenced in federal courts in Kentucky, Michigan, Ohio, and Tennessee.

The ruling was handed down in the case of two men sentenced in the United States District Court for the Western District of Kentucky.  Each man was sentenced to a 10-year sentence, the mandatory minimum term allowed at the time of their 2005 sentencing hearings.  Via a 2-to-1 opinion, the panel of Sixth Circuit judges expanded upon the Supreme Court ruling in Dorsey v. United States, 132 S.Ct. 2321 (2012), which requires application of the FSA’s more lenient penalties to defendants who committed their crimes before its enactment but were sentenced thereafter. Id., at 2328.  The Dorsey court did not specify whether the FSA should apply retroactively to defendants whose cases were finished before the 2010 enactment of the law.

The FSA has substantially reduced the penalties for distribution of crack cocaine, mainly by reducing the quantities required to trigger various mandatory minimum terms.  The FSA reduced the 100 to 1 ratio between crack and powder cocaine quantities used to compute federal sentences to a more lenient 18 to 1.

The case reached the courts via the defendants’ motions for a reduction in sentence under 18 U.S.C. §  3582(c)(2), which allows for resentencing when the United States Sentencing Commission alters a sentence guidelines provision and declares the change to be a retroactive one.  Chief Judge Joseph H. McKinley, Jr., of the United States District Court for the Western District of Kentucky, was forced to deny the defendants’ motion for a retroactive Sentencing Guidelines adjustment because § 3582 has been held to have no effect on the minimum terms mandated by a statute, over which the commission had no authority. Blewett, supra, 2013 WL 2121945, at *1.

The men had appealed under § 3582, and appeared to have precedent against them.  However, invoking its inherent review of power, the Sixth Circuit panel sua sponte took up the question of whether continued application of the old 100:1 ratio to cases like the instant one constituted a violation of the Equal Protection Clause on racial disparity grounds.

It does, said the court.  “[W]e hold, inter alia, the federal judicial perpetuation of the racially discriminatory minimum crack sentences for those sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause[.]” 2013 WL 2121945, at *1.  “Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is denial of equal protection.” Id., at *4.

The Court applied its equal protection analysis after finding that it was “constrained to interpret statutes and sentencing guidelines so as to avoid potential conflict with the Constitution.” 2013 WL 2121945, at *3.  To fail to apply the FSA to all crack defendants would leave the relevant provisions in doubt, because “the discriminatory nature of prior crack sentences is no longer a point of legitimate debate.” Id.

Citing numerous studies of the “crack versus powder cocaine” sentencing regimen, the Blewett panel noted that nearly one hundred percent of all crack defendants were non-white, and the fact that in at least 17 states, including those containing major cities like Boston, Denver, Chicago, Miami, and Los Angeles, no white defendants were prosecuted in federal courts from 1988 to 1998. Id.  Further citing numerous attempts by the Sentencing Commission to remedy the 100:1 disparity, the court found that “Congress itself acknowledged this problem by enacting the Fair Sentencing Act.” 2013 WL 2121945, at *4.

Yet, wrote Judge Gilbers Marritt, the FSA was merely a “step forward, but it did not finish the job” of ending judicially sanctioned discrimination that “continues by virtue of the web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act were no longer relevant in the wake of Dorsey. Id.

To address the fact that § 3582’s retroactivity provision discusses Sentencing Guidelines changes, not changes in statutes, the Blewett court said that the new minimum mandatory terms ordered by the FSA “to be incorporated by the guidelines are no longer ‘statutory’ only.  They are just as much a part of the retroactive guidelines as other guidelines because they have been incorporated into the retroactive system.” 2013 WL 2121945, at *8.  As such, the court said, § 3582 applies to the FSA.

Circuit Judge Ronald Lee Gilman wrote to offer dissent, opening his opinion with “I fear my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.” 2013 WL 2121945, at *9.  Judge Gilman took the panel to task for abandoning circuit precedent holding that “the one to one hundred ratio of crack to cocaine does not violate Equal Protection Standards.” Id., quoting United States v. Williams, 926 F.2d 1218, 1227 (6th Cir. 1992).  He further objected to the panel’s use of the doctrine of “constitutional avoidance” to make a finding of an equal protection violation.  “The majority reaches this conclusion without citing a single case in support.  This is not due to a lack of diligent research: it is due to the lack of any such cases.” 2013 WL 2121945, at *10.

Judge Gilman took issue with the majority’s view of the Sentencing Commission’s failure to list the relevant changes in U.S.S.C. § 1B1.10, because only amendments listed in that provision may trigger § 3582. Id., at *12, citing United States v. Hammond, 2013 WL 1363908 (6th Cir., Apr. 5, 2013)(holding that defendant’s mandatory minimum sentence “has not been lowered by the Sentencing Commission” and therefore could not qualify under § 3582).

Judge Gilman questioned the wisdom of the finding of an equal protection violation by stating:  The majority’s basic premise is that continued enforcement of a sentencing regime that equates one gram of crack cocaine to one hundred grams of powder cocaine violates the Equal Protection Clause because it has a known disparate racial impact.  Yet the majority apparently has a problem with the Fair Sentencing Act’s reduction of that disparity to an 18 to 1 ratio.  Why, however, is a 100 to 1 ratio but not an 18 to 1 ratio an equal protection violation?

In my opinion, the lack of any constitutionally relevant distinction between the old ratio and the new ratio further undermines the majority’s equal protection rationale.  2013 WL 2121945, at *11.

Judge Gilman concluded his dissent by noting that “Congress is free to amend the Fair Sentencing Act to make it fully retroactive, but that is a legislative prerogative and not appropriate for [the Court] to do simply by decree.” Id., at *12.

(Whether Blewett will be challenged via en banc review was not known at press 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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