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6th Desperately Needs En Banc Clarification in Wack Crack Cases

By William Peacock, Esq. on August 21, 2013 3:55 PM

Three cases. Three panels. Three conflicting results. In one case, three opinions from a three-person panel. All of this comes in just a wee bit more than three months' time.

And all of it demonstrates the desperate need for the Sixth Circuit's planned en banc reconsideration of United States v. Blewett, where the court found that the Fair Sentencing Act was retroactive because Equal Protection demanded it -- a conclusion that was vacated shortly thereafter.

All three cases also should have been controlled by a fourth case, from earlier this year, United States v. Hammond.

Hammond's Brief Holding

All three present cases, as well as Hammond, involve the applicability and retroactivity of the Fair Sentencing Act's reduction of mandatory minimums in crack offenses.

In Hammond, the defendant's sentence was reduced, from 121 months to the mandatory minimum applicable at the time of his sentencing,120 months. He argued that the FSA's reduction of mandatory minimums should apply retroactively, but the Sixth Circuit disagreed.

While both the FSA and the Commission reduced sentences for crack cocaine offenses, only the Commission's changes come into play in a Section 3582 petition. The brief per curium opinion also held that the Supreme Court's opinion in Dorsey (holding that the FSA applied to sentences imposed after the law was passed, even when the crime occurred before the FSA) was inapplicable to sentences already imposed at the time of the FSA's passage.

How the Sixth Blewett

Okay, we stole that pun from the Volokh Conspiracy blog, where Professor Orin Kerr mocked the Sixth Circuit panel's contrary-to-precedent and contrary-to-logic opinion. The panel, composed of a different three judges than Hammond, wrote an opinion that basically said that because old crack sentences had a racially disparate impact, the present-day upholding of such of a sentence would itself be racist.

We tried to make sense of the opinion, but it never really did make much sense, especially in light of Hammond (which the dissent noted). About a month later, according to Professor Douglas Berman of the Sentencing Law & Policy Blog, the panel asked for supplemental briefing on Eighth Amendment issues. Two days after that, the Sixth Circuit ordered the panel's Equal Protection opinion vacated, and set the case for an en banc rehearing. Oral arguments are set for October 9.

Johnson and Joiner Join the Madness

Johnson and Joiner are two separate yet identical cases, both released this week. In both, the defendants were sentenced under the old crack guidelines and minimums, but both received downward departures for "substantial assistance." Both asked for Section 3852 reductions. There is no substantive difference whatsoever between the cases.

Johnson produced three opinions. The majority looked to congressional intent, and felt that the purpose of the FSA and the emergency grant of power that enabled the Sentencing Commission's reduction in crack penalties together implied that the new, post-FSA mandatory minimums should apply. The concurrence said that no minimum applied in the first place (therefore no Hammond), as he received a downward departure. And the dissent? It, "with regret," cited Hammond.

And then there was Joiner. It cites Hammond as well, and holds that because the FSA was not retroactive, that same mandatory minimum stays put. Note that this panel and the Hammond panel shared Judge Boggs.

In Summary

  • Dorsey (SCOTUS): FSA reductions apply to sentences that hadn't happened, based on crimes that had happened, at the time of the law's passage.
  • Hammond (6th Per Curium): Section 3582 applies to Sentencing Commission reductions only - not FSA reductions of mandatory minimums. FSA is not retroactive.
  • Blewett (6th, Split 2-1 Panel): Equal protection and racism. Oh wait, vacated. Never mind. But FSA should be retroactive.
  • Johnson (6th, Split 1-1-1 Panel): Three contrasting opinions, no plurality it seems.
  • Joiner (6th, Unanimous): FSA is not retroactive per Hammond.

If all of that causes you pain, it should. The opinions collectively don't make any sense (especially the vacated Blewett gaffe) and are in desperate need of clarification. Interestingly enough, despite eleven different judges hearing the above cases, the composition of the en banc panel could be dramatically different.

Five of those judges were on senior status. Judge Martin retired last week, leaving a vacancy. Per circuit rules, the en banc panel will consist of all fifteen remaining active judges, as well as any senior judges who were on the Blewett panel (Judges Merritt and Martin).

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