Thursday, October 10, 2013

Blewett en banc argument, October 9, 2013

People started arriving at the courtroom an hour ahead of argument. Thirty minutes before argument, no seats were left, folks were rolling in chairs from the anteroom, and an impressive phalanx of clerks soon filled the back and down one side. I think every clerk in the building was in attendance. The defense bar was well-represented, with four of eight bloggers for this page present and, frankly, anyone who could have an excuse to be in Cincinnati. Kim Thomas, professor at U. of Michigan Law, was also present. That's all the name-dropping you'll get from me, because I don't know anybody (LED).

Judge Batchelder sat in the center of the Great Arc of Judges, with J. Merritt to her right and J. Boggs to her left. I'm sure this was some sort of seniority seating, but I can't help but think she wanted J. Merritt close in case she had to kick him. The judges, from audience left to right: Stranch, Kethledge, McKeague, Sutton, Gibbons, Clay, Moore, Merritt, Batchelder, Boggs, Gilman, Rogers, Cook, Griffin, White, Donald. Frank W. Heft argued on behalf of the Blewetts, Vincent Michael Sutherland argued on behalf of amicus curiae NAACP Legal Defense Fund, and Terry M. Cushing argued for the government.

The Reader's Digest Condensed Version: This is a divided court. Whatever decision comes down, it is not going to be unanimous. Judge White surprised many of us by handing the government's bottom to it several times in ways I thought were only reserved for me.

A key reminder: The Blewetts applied for relief under 18 U.S.C. 3582(c)(2). Take a quick moment to go read it. Also U.S.S.G. 1B1.10. Somewhere in the guideline, it talks about mandatory minimum, but does not say which mandatory minimum (new or old), which is important to Blewett's argument and J. White's analysis.

A summary of my notes. I really, really hope some other folks can flesh them out:

Heft's argument:
H: This is a statutory interpretation argument - Congress implied the new mandatory minimums should apply to all guideline 3582 proceedings, which is the fair implication of the interrelationship of mandatory minimums and 3582(c)(2)

Gilman: The Act [FSA] doesn't say that. What about the savings statute?
H: the savings statute is not an obstacle

Sutton: Didn't Dorsey contemplate that?
H: The Supreme Court recognized there would be disparity but it is important to note that [the opinion states] "unless Congress intends on reopening sentnecing hearings..." means Congress could have intended all defendants get the benefit of the FSA.

Sutton: The Justices and litigants in Dorsey believed Congress did not intend to reopen final sentences.
H: Dorsey was a direct appeal under 18 U.S.C. 3553 and U.S.S.G. 1B1.1. Here, we have a completely different....

Sutton: Dorsey didn't give anything
H: The issue here was not presented in Dorsey. It has not been addressed.

Merritt: Prof. Berman's amicus brief says "the government is unlikely to be able to provide defendants with justification for lengthy, excessive sentences, especially considering that more serious offenders got the benefit [of the FSA] but less serious defendants did not. Why is that true? That seems crazy.
Sutton: You don't quite agree with him, do you?
Merritt: New guideline, not new mandatory minimum
H: If guideline above...
{Merritt and Sutton bicker}
Batchelder: I would prefer argument come from [points at counsel]

{A quite few notes: Merritt was clearly still on board with his original opinion. Sutton seemed to be firmly against granting relief. The "more bad" vs. "less bad" defendant argument goes something like this: Someone "more bad," whose guidelines were significantly above their mandatory minimum can get a sentencing reduction if their guidelines were reduced but are still above the mandatory minimum. Someone "less bad," whose guidelines are at or below the mandatory minimum get no relief, without Blewett}

H: This issue is whether to use the old mandatory minimum or the new. It must be the new mandatory minimum. 1B1.10 (1.1?) does not preclude the new mandatory minimum from applying. Something about 3582. Something about equal protection {which was argument expressly reserved for Mr. Sutherland as amicus}

Sutton: What if you're wrong about FSA being retroactive?
H. We do not know....
Gilman: Do you have any authority to say FSA is retroactive?
H: U.S. v Doe... {reported here a few articles below this one}
Gilman: Wasn't that a three-judge decision?

Merritt: The reason why we go below the old mandatory minimum is 1B1.10 says that you get the new guideline if you got the guideline sentence before.

Rogers: I'm hanging up. Something about dissent [maybe in Doe?] 3582 sentence based on a set range that has subsequently been lowered in the guidelines. Isn't that an obstacle?
H: No.
Rogers: Why not? The guideline range is lowered by by the Sentencing Commission. The mandatory minimum is lowered by Congress.

Sutton: What does the guideline have to do with the FSA's retroactivity? I'm struggling with the guidelines having any say over federal statute.
H: Congress can decide whether to impose new/old mandatory minimum
Sutton: How did the Commission have the authority if Congress did not say so?
H: They couldn't say that. {this was a rather unfortunate note to end on}

Vincent Michael Sutherland on behalf of amicus curiae NAACP Legal Defense Fund - I think he had at least 30 minutes of material he needed to squeeze into 10 minutes of talking time. The equal protection argument was expressly reserved for him to make.
S: There is no rational, legitimate basis to allow some to benefit [from change in law] and to perpetuate the irrational regime on others. Irrational, arbitrary classification is at the heart of the Equal Protection issues

Merritt: So if Congress lowers the ratio to 12:1, does that make 18:1 irrational?
S: The issue here is application of 100:1 versus 18:1. This court does not have to address 18:1.

Boggs: But those are all in the language considered by the law?
S: Not in the text but in the purpose {I may have this jumbled}. It effectuated racial disparity.

Gilman: Did you think 100:1 was unconstitutional at the time it was passed? {this wording was a bit unfortunate, since Mr. Sutherland (and I) were likely both in grade school when the first crack mandatories were passed}
S: Congress thought at the time the law was justified. But, in hindsight, saw problems.
Gilman: So now we see it is unconstitutional. That would go against [long line of 6th Circuit cases]
S: Those cases were pre-FSA. The Equal Protection issue in those cases arose from the context of purposeful animus. That is not the argument here. Here the issue is irrational arbitrary...

Gilman: Do you have any cases that say when Congress decides to make a sentence less harsh it generates an Equal Protection argument? {really, aside from the FSA, when has Congress shortened a sentencing scheme?!?}

{I have an odd note that says "Clay frustrated with Merritt." I think J. Merritt said something which generated some form of eye roll from J. Clay}

Boggs: Do you have any case saying Congress' failure to make a law retroactive means it is unconstitutional?
S: Change in law/circumstances can give rise to an Equal Protection violation

White: I understand your argument is not disparate impact but straightforward rational relationship. Your argument is not based on purposeful discrimination but rational relationship.
S: We are arguing for a more strict version of rational relationship. Everyone recognizes that a disparate impact leads to stricter rational relationship test to see if [something] is reasonable {of if there's a good reason for something}
White: Congress' failure to make FSA retroactive - do you have any cases saying what was once rational and Constitutional is now irrational and unconstitutional?

Griffin: What date did this law become unconstitutional?
S: We do not need to pick a date. Anyone sentneced under the old mandatory minimum should get relief

Gilman: Whose responsibility is it to make the law retroactive? Courts or Congress?
S: When a statute is unconstitutional, it is incumbant upon the court to act

{again a discussion distinguishing Dorsey's question presented from the one in Blewett}

White: You invoke the changed guideline, then interpret mandatory minimum to be the mandatory minimum now in effect.
S: The mandatory minimum is tied and woven into the guideline - the guideline is based on the mandatory minimum.

Batchelder: your red light has been on for a while...

Terry M. Cushing argued for the government. He first argued one of the Blewett cousins' case was moot because he was no longer in custody. However, he was still in his first year of supervised release, and he could not apply to have his supervision terminated early because he over-served his jail sentence until he had been on supervision for a full year.

Sutton: how does supervised release impact mootness?
Batchelder - is mootness effected by ripeness?
Govt - He has not yet moved for early termination

Donald - you're not arguing supervised release is not part of the substantive part of the sentence, are you?
Govt - there is no relief for it under 3582(c)(2)

Sutton - if the sentence was unconstitutional, if he should have served no more than five years, why should he be on supervised release?
Govt - He did not apply for early termination [or it does not apply]
Sutton - can't count it towards the five years in prison?
Govt - no. not under Johnson

Merritt - [goes back to Prof. Berman's amicus arguments] How is that POSSIBLY rational?!?!!? More guilty, higher level actor gets greater reduction than lower quantity, less guilty
Govt - it's the way the statute works. 3582(c)(2) is for when the guideline range has been changed.
Merritt - [more question/argument]

Govt - we disagree that 1B1.10 is abiguous. The Commission can reduce the guideline and make the change retroactive. The Commission did not have th epower to make Congressional action retroactive.

Merritt - 5K says mandatory minimum is part of the guidelines, yes?
Govt - 5G says no sentence can be below the mandatory minimum, so mandatory minimum sets the floor or is the guideline.
Merritt - the whole guidelien is based on the mandatory minmum so the mandatory minimum is part of the guideline.
Govt - {I'm sure they said something, but my brain was getting tired}

Boggs - something about mandatory minimum that led to a discussion of the powers of the Sentencing Commission

White - When looking for Congressional intent, there is a relationship with the Sentencing Commission and real delegation of authority to the Sentencing Commission and when Congress instructs the Commission to change the guideline forthwith isn't it arguable Congress anticipated the Sentencing Commission would apply lower, new mandatory minimum when they did? {our collective jaws dropped}
Govt - 3582(c)(2) - that's the statute at question here, not the FSA. 3582 is a limited grant to courts to reduce sentences. The criteria do not allow the court to reduce the mandatory minimum a defendant is originally sentenced under. [then there's some argument abou the language of 3582(c)(2)
White: here, the guideline was lowered. Where in the policy statement does it say the new mandatory minimum does not apply?
Govt - when considering 3582, it replaces only the changed guideline

{my notes say "White hands him his ass." There was a back and forth about the government not answering her question. I think all defense bar in the courtroom were thinking, "Duuuuude, I thought she only did that to me."}

Govt - the Commission, in application note 1, said the sentence cannot be reduced below the mandatory minimum
White - but they did not say which mandatory minimum

Sutton: what if Congress clearly said the FSA was retroactive. What mechanism would be used to make that happen?
Govt - Congress would have to provide a mechanism, or a defendant would have to file a 2255 motion

Merritt - more question/argument

Boggs - doesn't that bring us back to who can make it retroactive? Congress or Supreme Court?
Govt - yes. Dorsey did that and did not make the statute wholly retroactive and took into account the disparity the decision would cause
Boggs - [talking about Prof. Berman's brief] Somebody bad gets a greater benefit than someone less bad, but it could be the opposite?
Govt - The highest level criminal does not get a reduction
Merritt - [calls him on the inaccuracy of his statement]
{general discussion about how just about any combination of people getting benefit/not getting benefit could exist}

White - Why say if Congress made statute expressly retroactive, a defendant could not get 3582 relief? The defendant's guideline changed.
Govt - [tells J. White to read the statute] {the audience winces}
White - You're not listening to the question
{more arguing back and forth}

Sutton - Did 3582 exist before the guidelines?
Govt - No
Sutton - So 3582 is about the guidelines. But 2255 only works when you've served the sentence you think you ought to have served {that is, served the sentence you should have under the new guideline, rather than the one you are serving under the old guideline}

Gibbons - but 3582 has changed over the years
Govt - {I did not write down what he said}

Stranch - I'm perplexed by the government's argument regarding the Dorsey language. {she quotes directly from Dorsey, something along the lines of "the argument - if Congress intended retroactivity - and we do not argue that here - then were are not considering that here"}
Govt - No. The Supreme Court did deal with this issue in Dorsey
Stranch - Aren't we back to looking at Congressional intent?
Govt - Dorsey did deal with intent
Stranch - Dorsey dealt with sentencings after the FSA became law. Here, we are dealing with behavior before the act and coming back for resentencing.
Govt - Dorsey addressed defendants at their first/full sentencing. 3582 is limited to only resentencing based on the new guidelines, NOT a full resentencing hearing

Merritt again

Gibbons - would it be fair to look at how the Sentencing Commission made the guidelines consistent with the mandatory minimum, which they never have? What the Commission would think would be an appropriate sentence for setting the guideline, but mandatory minimum would have to control over whatever the Commission thought the sentence would be

Sutton - Remember what happened to Hill {Dorsey is actually Hill/Dorsey}? I bet Hill does not have a 10-year sentence anymore
Govt - he was remanded for resentencing. He was not under a final sentence

Stranch - Congressional intent on the viability of using 3582 is not a consideration? {government said something I did not write down} What if we disagree with you? What is your best argument without Dorsey?
Govt - 3582 - the language of the statute - are defendants elligible for relief under the plain language of the statute. Was the sentence based on a guideline that was subsequently lowered.

Mr. Heft on rebuttal {and I admit by this time I was seriously tired and uncomfortable, so did not take as many notes}

Boggs - "applicable" guideline range - if have mandatory minimum, part of the range can be unavailable, right {ie 110-137, but 10 year mandatory min would make 120-137)
Donald - going back to the Equal Protection argumet - aren't the guidelines quantity-driven

Sutton - Has the Sentencing Commission taken a position on Blewett's position?
{there's some back and forth, but ultimately the answer is the Commission has not taken a position with regard to the Blewett decision/rationale}

And there you have it.


Nicole B. said...

So when can we expect a vote or decison made from this hearing?

Anonymous said...

When does this all go into effect