More on the FSA

If you've been following our Blewett coverage here and here, you know that it would be foolish to choose Judges Gibbons, Sutton, and Kethledge to play on the Blewett team in your Fantasy Sixth Circuit League. But that panel's opinion today in United States v. Hughes leaves little doubt.

The basic facts: Mr. Hughes was tried and sentenced prior to the Fair Sentencing Act, but his case was "erroneously" remanded for resentencing post-FSA ("erroneous" only because it was based on binding circuit precedent that was later overruled by the Supreme Court), and he argued that he should have received at resentencing the benefit of the FSA in light of Dorsey. In case you've forgotten, Dorsey was the case that held that pre-FSA offenders who are sentenced after the FSA can get that statute's benefits. The Court did that out of fear that applying the pre-FSA law to such offenders "would produce a crazy quilt of sentences, at odds with Congress' basic efforts to achieve more uniform, more proportionate sentences," among other reasons. Sound's like Mr. Hughes should be all set, no?

No. The panel ruled that Mr. Hughes is not entitled to FSA relief, relying on Section 3742(g)(1) (which directs district courts to apply the guidelines that were in effect at the time of the original sentencing for any resentencing on remand) to conclude that Congress must have intended just this result. According to the panel, unlike at an original sentencing, where 3553(a)(4) is the relevant "background sentencing principle," the relevant background principle at resentencing is 3742(g)(1). As much as the decision profits from the Dorsey analysis, it appears that Judge Kethledge's opinion would overturn Dorsey if it could, calling the Supreme Court's analysis "discernable, perhaps, more by the tracker's art than by simple sign reading." Still living in the land of metaphor, the panel argues that "statutes are not artistic palettes, from which the court can daub different colors until it obtains a desired effect."

Indeed, the panel here was so invested in understanding this statute that, when the government changed course and began advocating for Mr. Hughes rather than for longer incarceration, the panel appointed amicus to argue in support of the district court's opinion. (One hopes that the Jones Day attorneys who worked on this case were paid rather than receive pro bono credit for arguing that a crack offender should receive a 15-year sentence that Congress has already deemed unfair and racially motivated.)

So Mr. Hughes now has a mandatory-minimum sentence of 15 years, just like Congress intended when it reduced mandatory minimum sentences to correct the horrible racial disparity of sentences like Mr. Hughes's 15-year mandatory minimum sentence. Or something to that effect.

The only silver lining from this opinion is that the panel gives dispositive weight to the statute identified as the relevant "background principle" for purposes of its Dorsey analysis. In Blewett, the relevant "background principle" is 3582(c)(2), which obviously expresses Congress's intent that defendants receive the benefit of retroactive guideline amendments. Presumably, this logic must carry over to the Blewett opinion.