Well, Blewett Is Out . . . .

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. 

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