More Blewett: Dissenting Opinions

I just posted on the 6th Cir. blog too. . . .  My week to blog there.

Judge Merritt's Blewett dissent:

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous.  Congress intended to remedy irrationality and disproportion.  Court is thwarting this effort. 
* Cites NACDL and NAACP amicus briefs. 
* "Practically all observers" now recognize the ills of the old system. 

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. 
* African-Americans treated more harshly than Caucasian offenders under this regime.  And  88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. 
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings.  Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." 

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro.  Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." 
* Not sure of procedural mechanism for relief. 
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law.  Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans."  This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless.  Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums."  More than 82% of this group is African-American (2005 stat).  The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race."  No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio.  In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums."  Won't cut it. 

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well.  In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule. 
* 3582(c)(2) = Congress's "background principle of retroactivity." 
* Illogical to provide GL relief and not statutory relief. 
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. 
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage.  But assumptions are not law.  Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be.  The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits.  (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute.  The revised statutory minimums are, after all, created by statute.  The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive.  Doing so provided the statutory key to making the statutory minimum changes applicable under 3582.  This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. 
Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence.  Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers. 
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act.  It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended.  Congress did not intend this irrationality, and that is why Judge Rogers is correct.  Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the  Equal Protection Clause absent rational justification other than finality."

Blewett Decided

I just posted this note to the 6th Cir. blog too. 

Well, the Sixth Circuit en banc released Blewett yesterday.  Get out your hankies.  This one's a tear jerker.

United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013).  The majority opinion is by Judge Sutton.  Judge Moore concurred.  Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. 

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." 

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot.  The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. 

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either. 

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it.  Not present in FSA, which is "forward looking." 
* Distinguishes Dorsey. 
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. 
* 3582(c)(2) does not help: these proceedings are not plenary resentencings. 
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. 
* Equal-protection and cruel-and-unusual arguments under the Constitution fail.  No racially discriminatory purpose, so disproportionate effect allowed to stand. 
* Gov "has a powerful interest in avoiding the disruption of final sentences." 
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted."  Such a holding might actually discourage lawmakers from lowering sentences. 
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. 
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations. 
* Sees issues with jurisdiction (the one defendant is now on supervised release).  No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits).  Nevertheless, she would deny the gov's motion to dismiss.  Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. 
* 1 USC 109 governs: no retroactivity. 
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed.  Crack-powder disparity = racial disparity.  And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. 

I will explore the dissent tomorrow. 

Drug GLs and Prior "Similar Offense"

United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.